MoJo

The reason "unauthorized practice of law" is a thing is to protect the public in the same manner that one cannot "practice medicine" without a license. The consequences are horrific if not done properly, and the remedy of suing for "malpractice" isn't a realistic remedy relative to the consequences. An extreme example for clarity: If a non-lawyer represents an accused murderer and loses, causing the defendant to be sentenced to death, getting money damage for malpractice is insignificant if a real defense existed. While arguably the consequences of messing up a DRO are somewhat more measureable, 1) there is no guarantee the aggrieved will ever collect the damages (ever hear of one being "judgement proof" - easy to do if you want to); and 2) you need to draw the line somewhere (so, if you allow DRO's, would you also allow appeal pleadings and briefs relating to the DRO? What about other court pleadings, like the settlement agreement/separation agreement?) If it's legal advice - including court pleadings - it's the practice of law. Plan documents are a bit of an aberration - but everyone I know who drafts them does so "for review by counsel" - and fall under the "self drafted" rule (now if we could get plan sponsors to actually read them before signing....). By the way, self representation is always an option, and you can draft pleadings/contracts/business transactions (but you can't represent you own "corporate" entity in court) to your heart's content - but remember, one who represent's him or her self has a fool for a client. And just for the record, despite being an attorney who deals with 50-70 DROs a month, I hired an attorney to deal with mine....

What he said... In other words the "legal information" vs. "legal advice" is significant. We provide a "form" DRO but only to plan sponsors and lawyers. They can deliver it to participants if they want to.

I disagree with 2 - I think you can only provide the service directly to a divorcee IF and ONLY IF you are an attorney licensed in the jurisdiction for which you are providing the service (which would be the state in which the state family court hearing the case is).

There are services that employ non-attorney employees to draft and handle DROs, but 1) usually there is an attorney involved (and that would be the same for law firm paralegal drafted documents) BUT for it NOT to be the unauthorized practice of law, a lawyer probably needs to be involved. I would take it one step further in that it is actually "unethical" for an attorney who DOES NOT REPRESENT THE CLIENT to actually work directly for the client but must work through an attorney who is engaged by the client - so most of the DRO drafting services I'm familiar with are NOT engaged by the client directly, but through an attorney and the DRO is always offered "for review by counsel." It is possible for such a firm to be engaged as "co-counsel" but then they would have to make an appearance before the court in some cases. Since most DRO firms I'm aware of who do employ attorneys (most being founded by one) provide their services in jurisdiction in which they are not licensed, it still the "for review by counsel" model. Bottom line, I agree that DRO drafting is the practice of law as it is an "order" of a court....

Ahh. Benefits plans not considered at the 11th hour but rather at the 13th hour. How unique... NOT! Fundamentally I think you need to know how the "merger" was structured. Was it an entity merger? Did each organization simply contribute assets to the new organization (distinction in the corporate world would be stock vs. asset sale). A & B may still exist (either as shell entities, or through the surviving "combined" entity) and I think the answer to your questions are very much dependent on that fact. Second, have they continued to operate the plans for the respective employee base? You indicate that you don't know - but I think that is an important fact to discover. If so, I think you have a problem.... Third, was counsel involved? Are they now? Who is their malpractice carrier (just kidding - no I'm not...). Many more questions, but it's time for benefits counsel to get involved....

How has the plan been operated? If it has been operated consistent with "option iii" then you have an "operational" failure that can technically "only" be corrected by going back and fixing the plan by applying option i to the effective date of the plan, or to seek approval for a retroactive amendment via the VCP program. Self correction isn't available to correct a scrivener's error. Of course, if the plan has been operated since the effective date of the restatement consistent with option i, then make option iii available prospectively. Of course, some may do as you suggest, but it would not be "technically" correct. We wouldn't do that ourselves....

I can't tell you for certain, but they ought to. When I worked for Schwab, they did for distributions to certain countries - but not for individuals. At OneAmerica, we are actively reviewing what we've done in the past, and what should change in light of the new sanctions legislation..

I can't speak to the cost, but from a set-up, user perspective, it's pretty darn easy. You upload a pdf of your document, highlight (create a field) everywhere a signature is needed (initials allowed as well), make them "mandatory" or not, add email addresses as to where it goes, and you're pretty much good to go. It also has the capabilities of having different people sign in different place - and what is returned is a fully signed document - even though they all signed it separately from the comfort of wherever they are. I'm told it's mobile device friendly, but I haven't tried that out.

Surely you have no such problems, austin...

Ummm. Without divulging lawyerly secrets, I know of an attorney who every year buys a ream of two of paper from that year, and maintains a pristine condition Selectric typewriter - all I'm sure for nostagia and sentimental reasons. When asked about the IRS actually having a lab that can test the age of "ink" on paper (purely hypothetical inquiry, of course), he responded with "scanning" and original destruction is our friend.... Really not sure what he was talking about, but I'm pretty sure he's never hear the term "metadata" and that could be a problem.

We just amend the plan on a prospective basis. And by the way, "naming" a trustee is ineffective if the trustee so named doesn't sign it....

We use Docusign for all "new business" plan document, and most amendments. We are currently extending that use to "all" documents for all of our platforms/locations this year. We like it - but more importantly OUR CLIENTS LOVE IT. No more fumbling through a printed document (from a pdf we send them) signing, scanning, sending back and invariably having missed a key signature line. What we like about it is: 1) it won't let the document be returned until COMPLETELY signed 2) It allows us to to send the documents to more than one person simultaneously - and then get back the signed documents signed by multiple parties 3) It helps us track where the documents are in the signing process 4) It creates a record of WHEN the documents are signed....

I think many of my colleagues must be using something like this - as a lot of what my team sees is rather "aromatic." As far as random cow messages go - the only one's we get are steaming and invariably someone has stepped in it. (sorry, couldn't resist) As far as staffing models go, my experience with TPAs is that it is really size dependent. Small goes with one person handling most, if not all of the client's needs (including distributions). I worked for a rather large TPA once (about 80 employees) and it was a "hybrid" approach. There were contribution processors, distributions processors, a conversion team (rather newly implemented - about 5 or 6 years ago), a "technical" team that were SMEs and document specialists (also newly created when conversions were split off), and administrators - who did everything else (including testing and Form 5500 work).

Like I said, listen to ESOP Guy....

Not necessarily. DOL benefit consultants are trained to deal directly with participants - so why would you pay an attorney to make the call? Let the DOL do the leg work of investigation, and if a case arises, an attorney may be more likely to take the case.

First, listen to ESOP Guy - his handle is appropriate - for a reason. Second, I would agree that a private cause of action might be a stretch - at this point in time. ESOP litigation usually centers around valuation issues. If the company is being sold then valuation can be an issue - but to be honest, the "primary owners" usually are trying to get as much as they can for the company - and ESOP participants benefit from that as well. Third, I think you should contact the DOL. Find the office whose jurisdiction includes your company's headquarters and as to speak to a "benefits consultant." Be prepared and organized with FACTS (preferably documented) to relay your story. Incompetence in running a company is not something that you can seek redress for, but self dealing, mismanagement of corporate/ESOP assets, and a variety of other things may be. Selling the company for "less than fair market value" in order to protect themselves (jobs, leases on property held outside the company, and the like) COULD be a problem. As I said before, it comes down to "valuation" issues, and conflicts of interest (self-dealing) and that would pique the curiosity of the DOL. The DOL is very interested in ESOPs these days....

I'm not sure they are aiming that high....

I haven't seen the IRS do this, but we are currently dealing with a DOL auditor who is on a parallel tract in a DC plan. His contention is that routine fees assessed against all participant account are potentially "excessive" for small balance (mandatory cash outs or "MCOs in our lingo) accounts that should have been forced out. Explaining to him that the "retail" IRA market is more expensive than the "institutional" pricing that the plan receives has gone nowhere. The auditor is about to "hit" the plan sponsor for this failure, and may require a "refund" of fees taken since the MCO "should have" been processed. The DOL "National" office is involved, so they are at least tacitly expressing approval for the auditor's stance.

Ditto. We've dealt with plans that go back to 1974 without a plan document and got the DOL to accept an abandoned plan filing. The question is, who is the QTA? That may be the stumbling block.

The Wells Fargo SVF is a synthetic GIC- not a general account product (which would probably have a market value adjustment option). Most synthetics have a delayed payout only - to preserve the liquidity of the fund for other investors.

We see this often. Have an individual (corp exec) serve as "trustee" of the outside asset - and then put a lot of reminders in the file that the asset exists, needs to be recordkept, and is available for distributions. Most of the time we get a monthly update on the value and plug it into Omni to make it visible to participants.

Tom: You obviously have too much (creative) time on your hands. Isn't the a plan in need who could use you boorish attention?

Guvmint accounting is in fact different from "regular" accounting - and you raise a good point. Any accountants out there who specialize in governmental accounting practices?

Gone but not forgotten.... Substitute "Morgan Stanley"....

Bill - everyone admires your comments. No need to know who because they speak for all of us!