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ERISA - Attorney Conflicts of Interest
June 13, 2006
Can corporate counsel act in the dual role of representing a company in both (1) the company's role as an employer and (2) the company's role as an ERISA plan fiduciary?
Does this raise a conflict of interest between (1) the company's duty to act in the best interest of its shareholders and (2) the company's ERISA fiduciary duty to act in the best interests of plan participants and beneficiaries?
Looks like a plain conflict to me.
Here's an article that explores the whole matter: Inherent Attorney Conflicts of Interest under ERISA: Using the Model Rules of Professional Conduct to Discourage Joint Representation of Dual Role Fiduciaries by Professor Paul Secunda, University of Mississippi School of Law, in print: John Marshall Law Review, Vol. 39, No. 3, Spring 2006.
Professor Secunda concludes that the current version of the Model Rules of Professional Conduct don't provide enough guidance, and Proposed Model Rule 1.13(h) would be an improvement. He also has his own suggestions. In the end, he seems to reach the same conclusion I did: Don't.
Paul Secunda, University of Mississippi School of Law. Professor Secunda joined The University of Mississippi School of Law Faculty in the summer of 2002 after engaging in private practice for four years with the law firms of Morgan, Lewis & Bockius and Montgomery, McCracken, Walker & Rhoads in Philadelphia, Pennsylvania . Professor Secunda also served as a federal judicial clerk for the Honorable Murray M. Schwartz of the United States District Court for the District of Delaware in Wilmington, Delaware during the 1997-1998 term. He teaches employment discrimination law, labor law, employer-employee relations, school (K-12) law, higher education law, employee benefits law and civil procedure.
He also does a great job as co-editor of Workplace Prof Blog.
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