Several courts have considered whether or not a personal injury attorney representing the ERISA participant can be held liable to the ERISA plan for repayment from settlement proceeds. The three Federal Appeals Circuits which heard such cases rejected attempts to make the injury attorney a plan "fiduciary" and subject to liability under the plan. See,Chapman v. Klemick, 3 F.3d 1508 (11th Cir. 1993); Hotel Employees & Restaurant Employees Int'l Union Welfare Fund v. Gentner, 50 F.3d 719 (9th Cir. 1995); and Southern Council of Industrial Workers v. Ford, 83 F.3d 966 (8th Cir. 1996). As such, ERISA plans generally have no recourse against the participant's attorney when the plan's subrogation or reimbursement rights are not honored.

However, the District Court in Tennessee changed the playing field for the ERISA plans and personal injury attorneys in the Sixth Circuit covering Tennessee, Kentucky, Ohio and Michigan. See Greenwood Mills Inc. v. Burris, 130 F. Supp. 2d 949 (M.D. Tenn 2001) Judge Trauger held that the estate of the injury attorney and his partners were liable to the ERISA plan for its subrogation/reimbursement rights. The court reached this result by adopting federal "common law" founded upon current Tennessee law. Specifically, the court held the plan could seek to enforce plan language under 29 U.S.C. § 1132(a)(3) against the attorney as ERISA was silent on who the enforcement action could be brought against. Burris, 103 F.2d at 958. The court followed Tennessee case law holding a lawyer liable when they have knowledge of the subrogation rights, disburse the money to their client despite the claim of the plan, and knew or should have known they placed the money beyond the reach of the plan. Burris, 130 F. Supp. 2d at 960-961. The attorney and firm had to disgorge their fee on the case to repay the plan. Although the court based its decision on Tennessee law, the Burris court specifically adopted this law as "federal common law" under ERISA. Thus, this doctrine would apply to all ERISA cases even those outside of the Sixth Circuit as well.

ERISA plans need to be aware of this potential right of recovery when dealing with attorneys who refuse to give information or disburse the funds without regard for the plan's rights. This cause of action allows the plan to seek repayment not only from the member but also from the member's individual attorney and the attorney's law firm. Additionally, the Burris court rejected application of the "make-whole" doctrine as the member deceived the plan. Thus, the member lost any right to use such an equitable doctrine as a defense.