About a dozen or so year ago, there was a medical report that dental plaque could cause heart disease.  The cynic in me tells me that this was some sort of dental conspiracy to increase revenue as fluoridated water and other dental hygiene has had to have a negative effect on the dentists’ bottom line. Regardless of my cynicism, good oral health is important.

While some people only see a dentist when something in their mouth hurts them, many visit the dentist for annual or semi-annual checkups as preventative care, to avoid dental problems later. Brushing, flossing, and checkups help avoid the root canals, caps, and dentures.

As an ERISA attorney, sometimes I see myself as a retirement plan dentist. While some plan sponsors only seek counsel from an ERISA attorney when something terribly goes wrong with their retirement plan, there are many plan sponsors these days that seek ERISA counsel as a form of preventative care for their retirement plans. Seeking counsel from an ERISA attorney can be like seeking a dentist in avoiding greater harm. Part of the marketing of my practice has been to advise plan sponsors and their financial advisors that their retirement plan should be reviewed on annual basis to determine whether it’s being properly administered and whether the expenses for the plan are reasonable. These are preventative steps to avoid potential liability as a plan fiduciary. My Retirement Plan Tune-Up (which you will be hearing more about in the near future) is a legal review where I look at the plan terms; plan administration, and fiduciary to determine what works and what needs to be corrected.

Plan sponsors should review their plans to determine whether the plan still fits their needs and whether there are potential liability pitfalls in plan administration and the fiduciary process.

In my articles and my blog posts, I highlight the potential liability pitfalls that a plan sponsor needs to avoid. Whether it’s the lack of an investment policy statement or high fees, these are pitfalls that plan sponsors can minimize through best practices.

Some critics of my writings claim that small to medium sized employers rarely get sue for breaches of fiduciary duty, so I am in the market of selling useless legal services. I guess that is my version of the plaque causing heart disease theory. While the chances of a small to medium size employer getting sued are slim, the threat is still there. The chance of getting hit by lightning is remote; we still minimize the risk of getting hit by avoiding standing near trees or staying outside. In addition, ERISA litigation progresses and when ERISA attorneys run out of suing the larger plans for fiduciary duty breaches, where will they turn next? Regardless of the small risk or not, plan sponsors should follow good practices because good practices tend to avoid bad results. In addition, poorly run small retirement plans have other things to fear such as an audit by the Internal Revenue Service and the Department of Labor or just the threat of litigation by a terminated employee who just wants a couple of shekels after termination of employment.

Like their teeth, plan sponsors should have their plans checked on an annual basis to avoid a retirement plan root canal later.