as plan design, amendment, and termination — the attorney’s client is the employer and the privilege is preserved. See In re Long Island Lighting Company, 129 F.3d 268, 271-72 (2d Cir.1997); United States v. Evans, 796 F.2d 264, 266 (9th Cir.1986); Washington-Baltimore Newspaper Guild v. Washington Star Co., 543 F.Supp. 906, 909 (D.D.C.1982). Two essential problems made this rule difficult to apply. First, the cases provided little guidance as to how to distinguish between fiduciary and nonfiduciary activities. Although the cases seemed to agree that fiduciary activities encompass matters of “plan administration,” the scope of plan administration itself is a matter of continuing redefinition. See, e.g., Varity Corp. v. Howe, 516 U.S. 489, 505, 116 S.Ct. 1065, 134 L.Ed.2d 130 (1996) (<HOLDING>). Second, they failed satisfactorily to address
holding that making intentional representations about the future of plan benefits may be an act of plan administration holding that professionals who advised the plan were not fiduciaries because they had no decision making authority over the plan or plan assets also noting that the power to act for the plan is essential to status as a fiduciary holding that plan administrator of an erisa health plan did not have to anticipate the confusion of a plan participant holding that in a recovery of benefits claim only the plan and the administrators and trustees of the plan in their capacity as such may be held liable holding that plan language giving plan administrator power to determine which employees are eligible to participate in the plan and providing all parties dealing with the plan an interpretation of plan provisions on request indicates deferential standard of review of trustee eligibility decisions