There are two types of ERISA attorney, those that work for a plan provider and those that don’t. Many ERISA attorneys haven’t had the luxury that I have, by having experience doing both.

Being in my own practice, my allegiance is to my clients and no one else. I will offer them the solutions that are for their benefit and the benefit of plan participants. When I worked for a third-party administrator (TPA), I cared about the clients, but my allegiance was to the people signing my paycheck. So much of my job working for TPAs was putting out fires that our administrators caused. I had to keep the clients happy, but also protect our interests.

When a plan sponsor has trouble with the plan due to errors by the TPA, the TPA attorney will try to fix things, but as minimally as they can. The reason is they are trying to protect the TPA. They may suggest that errors can be self-directed, even though the guidance out there says that they can’t. Legal opinions do depend on a certain point of view.