Contrary to what some of the critical comments received by the DOL/EBSA suggest, fiduciary duties are neither too “ill-defined” nor “vague” to be applied to investment advisory activities. Such duties have been applied to other professionals for centuries. Additionally, there is a significant body of case law applying fiduciary duties of due care, loyalty, and good faith upon the activities of investment advisers (both at the federal and state level).
Research
Six Core Fiduciary Duties for Financial Advisors
The Six Core Fiduciary Duties embody the major elements of fiduciary responsibility under the Advisers Act of 1940.
Wall Street in Crisis: A Perfect Storm Looming
Labaton Sucharow’s second annual 2013 survey of the U.S. financial sector emphasizes the need for transparency, fairness, and accountability.
Fiduciary Reference – Analysis of Investment Fiduciary Issues
The SEC March 1 Release* assumptions about a possible uniform fiduciary standard and the duty of loyalty sharply restrict when fiduciary duties are applied. If these assumptions are adopted in rulemaking, fiduciary duties would effectively be removed for brokers and advisers giving investment advice to retail investors.
The Fiduciary Obligations of Financial Advisors Under the Law of Agency
By By Robert H. Sitkoff — “Whether a financial advisor is an “investment advisor” or a “broker” (or neither) under the federal securities laws, an advisor may be an agent under the common law of agency.”
Selling Advice And Creating Expectations: Why Brokers Should Be Fiduciaries
By Arthur B. Laby — Because investors reasonably expect that brokers will, in fact, operate in a fiduciary capacity, the SEC should impose a fiduciary duty on brokers that give investment advice.
