Scope of DOL Audit

[Guest Jill41402]

How broad is the authority of the EBSA in conducting an audit of a pension fund? Can they ask for documents from other funds? Also, if a former trustee is being interviewed, can the investigator deny him/her the right to have representation from fund counsel?

[Peter Gulia]

Without considering whatever might or might not be required by law, I've never heard of an EBSA Investigator attempting to deny anyone an opportunity to get the advice of his or her lawyer. In my experience, an EBSA Investigator who has been informed that an interviewee is advised by a lawyer usually is cooperative about scheduling to meet the lawyer's reasonable availability.

About the former trustee you describe, you and your lawyer might consider the possibilities that such an interviewee might choose the plan's regular counsel (if that lawyer is available and willing to so serve), or might choose a different lawyer. Because of possibilities for differing interests among the plan, all or some of the current trustees, and all or some of the former trustees, using a separate lawyer is something that a smart interviewee might at least consider, or even insist on.

[Guest Jill41402]

Without considering whatever might or might not be required by law, I've never heard of an EBSA Investigator attempting to deny anyone an opportunity to get the advice of his or her lawyer. In my experience, an EBSA Investigator who has been informed that an interviewee is advised by a lawyer usually is cooperative about scheduling to meet the lawyer's reasonable availability.

About the former trustee you describe, you and your lawyer might consider the possibilities that such an interviewee might choose the plan's regular counsel (if that lawyer is available and willing to so serve), or might choose a different lawyer. Because of possibilities for differing interests among the plan, all or some of the current trustees, and all or some of the former trustees, using a separate lawyer is something that a smart interviewee might at least consider, or even insist on.

The EBSA investigator said that the former trustee should have his own attorney and not the FUnd's atttorney - yet he never made an issue of that with any of the current trustees who were interviewed. That is the issue that is concerning - why is there a distinction between a former and current trustee when it comes to being asked about the plan. The former trustee will only have knowledge of what went on during his tenure. He wants the former trustee to sign a conflict of interest waiver but did not ask any current trustees for one. Am I missing something here?

[Peter Gulia]

If EBSA's investigator suggests that the former trustee might benefit from a separate lawyer's advice, that's an idea that the former trustee should consider quite carefully. And everyone on the scene should consider the several possible implications of the investigator's suggestion. Without knowing the facts of the situation (and you're right not to describe them on a public bulletin board), I won't pretend to say what's at stake. But it's easy to imagine that there are stakes, and that there could be differing interests.