By Arthur Laby — This Article provides a sustained account of advice giving as a fiduciary activity, and it demonstrates that the dominant approach to defining fiduciary relationships is flawed. Leading academic commentators assert that fiduciary relationships only arise when one party has discretion over the assets or affairs of another.
Academic Papers
The Fiduciary Structure of Investment Management Regulation
By Arthur Laby — Investment managers owe fiduciary duties to clients, including the duty of loyalty and the duty of care. A persistent question, with no clear answer, is what precisely is required by the duties of loyalty and care. In this paper, I argue that much of investment management regulation is a response by regulators to the uncertainty inherent in the fiduciary obligation.
Professional and Personal Financial Planning
By Jeffrey W. McClure, CFP® — An excellent paper on the origins, meaning and importance of professions, and the status of financial planning as a profession.
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.
Mutual Fund Performance Advertising: Inherently and Materially Misleading?
By Alan R. Palmiter & Ahmed E. Taha — Despite the fact that mutual funds’ past performance is not a good predictor of future returns, mutual fund companies routinely advertise the returns of their best funds.
