Fiduciary Duty? Just Ask the Client

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A lot is being made of the fiduciary duty standard and whether or not it should be applicable to broker-dealer registered representatives. I've got news for all those Series 7 registered reps out there: if your client believes you have created a fiduciary duty to look out for their interests, then they are probably right. Your credentials, your compensation methods, your firm or broker-dealer, the consulting services you offer, how you market yourself, and numerous other factors help formulate your duty in the mind of the client.

Investment advisors, regulated by the Investment Advisors Act of 1940, have a fiduciary duty to their clients written into the statute. This means their advice must be objective and free from conflict, putting the client's needs above their own at all times. Typically charging hourly rates or fees for financial planning services, this group receives no commission from financial products. In theory, they are free from all conflicts and have the ability to select only the most appropriate investments for their clients.

The series 7 registered representatives—agents or brokers at a traditional "broker-dealer"—are not regulated by the 1940 Act. Rather, modern-day broker-dealers grew out of the Securities Exchange Act of 1934 and are not subject to the fiduciary duty standard under law. However, to most clients, the consultative functionality of each side has become indistinguishable. And this is a big problem for those operating under FINRA as series 7 reps, attempting to hide for cover in the weeds of "suitability" when disputes arise. Now I know dozens of series 7 reps that are more objective and meticulous with their recommendations than most fee-based planners; my point is, how a client interacts with an advisor and perceives the relationship is really the driving factor in fiduciary duty determination. If your client believes you have created a fiduciary duty, then you likely have.

Further complicating the duties created in the minds of clients: the financial credentialing industry. See my other posts at Investment Misconduct.

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