Co-Counsel

[Guest jmc51]

Although common place for large multiemployer plans to have co-counsel (one representing employer trustees and one representing union trustees), I cannot find any specific DOL guidance authorizing or discusses the expenditure of plan assets to pay for two attorneys. Is anyone aware of any such guidance discussing the Trustee decision to retain two different law firms to act as co-counsel? Any thoughts are greatly appreciated. Thanks.

[Peter Gulia]

I am not aware of a particular authority.

A standard in considering the reasonableness of a plan's expense asks whether "the service is appropriate and helpful to the plan ... in carrying out the purposes for which the plan is ... maintained." 29 C.F.R. 2550.408b-2(b).

Ordinarily, a fiduciary incurring expenses to be paid from the fiduciary entity must use prudence and diligence to avoid duplicative or otherwise excessive expenses. But considering differences in the circumstances of those who serve as trustees of a multiemployer pension plan's trust, it's perhaps understandable that those trustees might need to consult two or more law firms to assure that each trustee gets advice from a lawyer he or she trusts.

Courts often interpret ERISA in ways similar to the common law of fiduciary relationships. However, 29 U.S.C. 186 and other Federal labor law, to the extent that it requires or prefers that a multiemployer plan be administered by trustees from "union" and "employer" classes, might vary somewhat the contours of a fiduciary's duty to cooperate with his or her co-fiduciaries.