The first objective of the 401(k) plan sponsor is to reduce fiduciary liability. The perils of liability exposure confront the typical fiduciary in many ways. They can hide in outdated language in the plan's investment policy statement. They can loom on the horizon as plan sponsors prepare for the inevitable fee disclosure mandates. But, most plan sponsors see them lurking in investment options ranging from bond funds, target date funds to annuities.
Of all these liabilities, the one most overlooked deals with the hiring of an ERISA attorney. Sometimes it's the fear of fees and sometimes it's just the nature of the question, but for some reason too many plan sponsors don't seek an ERISA attorney when it matters. Complicating matters, earnest service providers – TPAs, investment advisors, auditors, etc… – are quick to over "compliance" advice, not knowing when it's crossing the line and becomes legal advice (which only an attorney can provide).
We had a long conversation with Tod Yeslow while researching the article "5 Criteria 401(k) Plan Sponsors Must Consider Before Hiring an ERISA Attorney" (Fiduciary News, May 3, 2011). Yeslow, an ERISA attorney at Mitchell, Williams, Selig, Gates & Woodyard, P.L.L.C., served as an in-house benefits lawyer for Fortune 50 companies for many years. That's where he gained experience on the best ways to find outside legal experts. "I always touted my best talent as being one who can locate the best legal talent," he told us.
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