Fiduciary Standards

Fiduciary Standards

Purpose

Guide the understanding and application of fiduciary duties across the investment advisory landscape. This skill covers the Investment Advisers Act fiduciary duty, ERISA fiduciary standards, DOL rules, state-level developments, and CFA Institute standards — enabling a user or agent to identify fiduciary obligations and distinguish them from Reg BI and suitability standards.

Layer

9 — Compliance & Regulatory Guidance

Direction

prospective

When to Use

• Determining whether a fiduciary standard applies to a given relationship or transaction
• Designing compliance programs for registered investment advisers
• Evaluating ERISA fiduciary obligations for retirement plan advisers
• Comparing fiduciary duty to Reg BI or FINRA suitability
• Assessing dual-registrant obligations (when wearing IA hat vs BD hat)
• Understanding DOL fiduciary rules and prohibited transaction exemptions
• Evaluating state-level fiduciary standards
• Designing conflict disclosure and mitigation frameworks under fiduciary duty

Core Concepts

Investment Advisers Act Section 206

Sections 206(1) and 206(2) of the Investment Advisers Act of 1940 are anti-fraud provisions that the Supreme Court (in SEC v. Capital Gains Research Bureau, 1963) interpreted as establishing a federal fiduciary duty for investment advisers. Section 206(1) prohibits employing any device, scheme, or artifice to defraud a client. Section 206(2) prohibits any transaction, practice, or course of business that operates as a fraud or deceit on a client. Together, they impose an affirmative duty of utmost good faith, full and fair disclosure, and an obligation to act in the client's best interest.

SEC 2019 Fiduciary Interpretation (Release IA-5248)

The SEC's June 2019 interpretation clarified that the IA fiduciary duty comprises two component duties:

Duty of Care:

• Duty to provide advice in the client's best interest — the adviser must have a reasonable understanding of the client's objectives and provide advice that is in the client's best interest in light of those objectives. This includes the duty to provide advice about whether to invest in a particular type, strategy, or security at all.
• Duty to seek best execution — when the adviser has authority to select broker-dealers, it must seek to obtain the most favorable terms reasonably available under the circumstances for client transactions.
• Duty to provide advice and monitoring over the course of the relationship — this is an ongoing duty that continues throughout the advisory relationship, not just at the point of recommendation. The frequency of monitoring depends on the scope of the advisory relationship.

Duty of Loyalty:

• The adviser must not place its own interests ahead of the client's interests.
• Must provide full and fair disclosure of all material conflicts of interest that might incline the adviser to render advice that is not disinterested.
• Disclosure must be sufficiently specific that a client can understand the conflict and provide informed consent. Generic or boilerplate disclosure is insufficient.
• Even with disclosure and consent, the adviser cannot act in a manner inconsistent with the client's best interest.

ERISA Section 404 Fiduciary Standard

ERISA imposes a fiduciary duty on persons who exercise discretionary authority or control over a retirement plan or its assets, or who provide investment advice for a fee:

• Prudent expert rule — a fiduciary must act with the care, skill, prudence, and diligence that a prudent person acting in a like capacity and familiar with such matters would use (higher than the "prudent person" standard — requires subject matter expertise)
• Exclusive benefit rule — act solely in the interest of plan participants and beneficiaries
• Diversification — diversify plan investments to minimize the risk of large losses unless it is clearly prudent not to
• Plan document compliance — act in accordance with plan documents to the extent consistent with ERISA
• Prohibited transactions (Section 406) — fiduciaries may not engage in certain transactions with parties in interest, including lending, furnishing services for unreasonable compensation, or transferring plan assets for the fiduciary's own interest

DOL Fiduciary Rule and PTE 2020-02

The Department of Labor has repeatedly sought to expand the ERISA fiduciary definition:

• 2016 DOL Fiduciary Rule — broadly defined "investment advice fiduciary" to include one-time rollover recommendations. Vacated by the Fifth Circuit in 2018 (Chamber of Commerce v. DOL).
• Current regulatory posture — the DOL has proposed and re-proposed expanded fiduciary definitions. As of the latest guidance, the 1975 five-part test remains the baseline for determining ERISA fiduciary status.
• PTE 2020-02 (Prohibited Transaction Exemption) — provides a pathway for investment advice fiduciaries to receive compensation that would otherwise be a prohibited transaction (e.g., commissions, 12b-1 fees, revenue sharing) from rollover and other recommendations. Conditions include: acting in the customer's best interest, providing balanced disclosure, charging only reasonable compensation, adopting anti-conflict policies, and conducting retrospective compliance reviews.
• Rollover recommendations — PTE 2020-02 explicitly covers rollover recommendations from plans to IRAs. Firms must document that the rollover is in the customer's best interest considering plan fees, investment options, services, and penalties.

State-Level Fiduciary Standards

Several states have enacted or proposed their own fiduciary standards:

• Massachusetts — 950 CMR 12.207 (effective March 2020, later enjoined and revised) imposed a fiduciary duty on broker-dealers and agents making recommendations to customers in Massachusetts. Though challenged legally, it signals state-level regulatory momentum.
• Nevada — enacted a fiduciary duty statute for financial planners and broker-dealers, though implementing regulations have been limited.
• Other states have considered similar legislation. Firms operating across state lines must monitor evolving state-level requirements.

CFA Institute Standards of Professional Conduct

Standard III — Duties to Clients includes:

• III(A) Loyalty, Prudence, and Care — act for the benefit of clients, place client interests before employer or own interests, act with reasonable care and prudent judgment
• III(B) Fair Dealing — deal fairly and objectively with all clients when providing investment analysis, making recommendations, or taking investment action
• III(C) Suitability — make reasonable inquiry into a client's investment experience, risk and return objectives, and financial constraints prior to making recommendations

While CFA standards are not regulatory requirements, they represent industry best practices and are often referenced in enforcement actions and regulatory guidance.

Fiduciary Duty vs Reg BI

Key distinctions:

Dual-Registrant Considerations

Firms registered as both IA and BD must clearly disclose which capacity they are acting in for each transaction or relationship:

• When acting as an IA: full fiduciary duty applies
• When acting as a BD: Reg BI applies (for retail customers)
• Form CRS must explain both relationships and their differences
• "Hat switching" — changing capacity mid-relationship — requires clear notice and documentation
• The SEC has warned that dual registrants cannot choose the lower standard to avoid obligations

Practical Compliance Implications

• Documentation — fiduciary duty requires thorough documentation of advice rationale, conflict disclosures, and client consent
• Conflict mitigation vs elimination — unlike Reg BI (which allows mitigation), fiduciary duty may require elimination of conflicts that cannot be adequately disclosed or consented to
• Fee reasonableness — fiduciaries must ensure fees are reasonable relative to the services provided
• Compliance programs — SEC Rule 206(4)-7 requires every registered IA to adopt and implement written compliance policies and procedures, designate a Chief Compliance Officer, and conduct annual compliance reviews

Worked Examples

Example 1: IA recommending proprietary products without adequate disclosure

Scenario: An RIA that also manages proprietary mutual funds recommends those funds to advisory clients. The ADV Part 2A mentions the affiliation in general terms ("we may recommend affiliated products") but does not disclose the specific financial incentive or quantify the conflict. The proprietary funds charge 75 bps while comparable third-party funds charge 40 bps. Compliance Issues: Fiduciary duty of loyalty violation. The disclosure is not "sufficiently specific" under the SEC 2019 Interpretation — a client cannot understand the magnitude of the conflict from boilerplate language. The 35 bps cost differential is a material financial incentive that must be specifically disclosed. Analysis: The firm must: (1) specifically disclose that it receives revenue from proprietary funds, (2) quantify or clearly describe the financial benefit, (3) explain how this creates a conflict (incentive to recommend proprietary over cheaper alternatives), (4) obtain informed consent after meaningful disclosure, and (5) document that the recommendation is in the client's best interest despite the conflict. If the firm cannot demonstrate that the proprietary fund offers value justifying the cost differential, the recommendation may violate the duty of care regardless of disclosure quality.

Example 2: ERISA fiduciary selecting high-cost plan options

Scenario: A 401(k) plan adviser recommends a fund lineup that includes revenue-sharing share classes when lower-cost institutional share classes of the same funds are available. The revenue sharing offsets the adviser's fees. Total plan cost is 1.2% when it could be 0.7% with institutional shares and a transparent advisory fee. Compliance Issues: ERISA Section 404 prudent expert violation and potential Section 406 prohibited transaction. The fiduciary is not acting with the required prudence by selecting higher-cost share classes. Revenue sharing arrangements that benefit the adviser create a prohibited transaction unless covered by an exemption (such as PTE 2020-02). Analysis: Under ERISA's exclusive benefit rule, the adviser must select the lowest-cost share class available unless a higher-cost class provides demonstrable additional value. Revenue sharing that reduces the adviser's visible fee while increasing total plan cost is a conflict that ERISA fiduciary duty requires to be resolved in favor of participants. The DOL has brought enforcement actions on this exact pattern. The adviser should use institutional share classes and charge a transparent advisory fee.

Example 3: Dual-registrant confusion about capacity

Scenario: A dual-registrant firm opens advisory accounts for financial planning clients but executes certain transactions (annuity purchases, insurance products) through the brokerage side. Client communications do not clearly distinguish which capacity the firm is acting in for each transaction. The firm applies Reg BI standards to annuity recommendations rather than fiduciary standards. Compliance Issues: Failure to disclose capacity and potential application of the wrong standard. If the client reasonably believes they are receiving ongoing fiduciary advice across all aspects of the relationship, the firm cannot silently switch to a lower standard for selected transactions. Analysis: The firm must: (1) clearly disclose at the outset which services are advisory (fiduciary) and which are brokerage (Reg BI), (2) provide specific notice when switching capacity for a particular transaction, (3) ensure the client understands the different standards that apply, and (4) document the capacity disclosure and client acknowledgment. The SEC has specifically warned dual registrants against "cherry-picking" the standard that benefits the firm rather than the client.

Common Pitfalls

• Assuming that disclosure alone satisfies fiduciary duty — it does not; the adviser must also act in the client's best interest
• Confusing Reg BI's "best interest" standard with fiduciary "best interest" — the IA duty is broader, ongoing, and includes monitoring
• Using generic or boilerplate conflict disclosures that do not enable informed consent
• Failing to apply ERISA's higher "prudent expert" standard when advising retirement plans
• Not documenting the basis for advice, especially when conflicts exist
• Dual registrants failing to clearly disclose and document capacity changes
• Assuming PTE 2020-02 automatically covers all rollover compensation — the exemption has specific conditions
• Ignoring state-level fiduciary requirements when operating across jurisdictions
• Treating fiduciary duty as only applying to investment selection — it extends to fees, monitoring, and the overall advisory relationship
• Not conducting the annual compliance review required by Rule 206(4)-7

Cross-References

• reg-bi (Layer 9): Parallel standard for broker-dealers; key comparison point for understanding fiduciary duty's higher bar
• conflicts-of-interest (Layer 9): Fiduciary duty of loyalty requires full disclosure and informed consent for all material conflicts
• fee-disclosure (Layer 9): Fee transparency is a core fiduciary obligation; ADV Part 2A fee disclosure requirements
• investment-policy (Layer 5): IPS construction reflects fiduciary obligation to document investment approach and client objectives
• advice-standards (Layer 9): Determines when fiduciary duty is triggered (when does information become advice?)