This case involves a former investment adviser representative (IAR) of the defendant’s company. The defendant’s company and plaintiff had been working together for over 20 years when the plaintiff informed the defendant that a long-term illness had put her in serious financial trouble. She told the defendant she intended to transfer upwards of $100 million in assets from the defendant’s clients to a new platform and charge clients a significantly higher percentage on this new platform. In response to this, the defendant sent letters to clients that had been solicited by the plaintiff informing them of the plaintiff’s plans and advising that it was not in their best interests to move to the new platform. The plaintiff sued the defendant for defamation because of the letters the defendant sent. It is alleged that the defendant’s company had a fiduciary duty to advise its clients as to what was in their best interests. Because the defendant and plaintiff had been working together for so long, the defendant company intended to clarify to its clients that plaintiff was no longer acting on behalf of their company. An expert in fiduciary duty was sought to discuss whether the defendant complied with their fiduciary duty as a registered investment advisor.
Question(s) For Expert Witness
- 1. What is the fiduciary duty of an RIA, particularly in this case? Please explain.
Expert Witness Response E-009316
I have spent the bulk of my career reviewing and determining fiduciary responsibilities for accounting firms, legal firms, boards of directors, in both their individual and collective responsibilities. I have recently completed a case involving the fiduciary responsibility concerning bank fraud, board responsibility, and the misrepresentation of facts. I have provided my professional opinion on fiduciary responsibilities on numerous cases involving accounting opinions, legal opinions involving the duties of CRO’s, board’s of directors for financial institutions, including publicly traded companies and commercial enterprises.
In a case like this, the RIA’s primary fiduciary responsibility and duty of loyalty is to the client. The RIA should always take the steps necessary to avoid any real or perceived conflict of interest and a requirement of this type is most likely contained in the code of conduct for all RIA’s which states some of the following language: an investment adviser fiduciary obligations to its investment advisory clients and the fiduciary obligations of the individuals it supervises and require compliance with the federal securities laws…the code of ethics should set out ideals for ethical conduct premised on fundamental principals of openness, integrity, honesty, and trust.
Expert Witness Response E-000635
I have over 40 years experience as an investment professional and 35 years experience as an expert witness. I was the external commentator for an organization that provides the standards and best practices for investment advisors and investment managers in the industry. I presently review investment portfolios of major companies to determine if these investment portfolios are in keeping and consistent with fiduciary standards. I hold the professional designation of accredited investment fiduciary analyst, and in this capacity provide CEFEX certifications to investment advisers on whether they are compliant with fiduciary duties.
In my opinion, the defendant’s action in sending letters to inform his clients of plaintiff’s actions was reasonable and appropriate in keeping defendant’s fiduciary duties to its clients. The overarching principle regarding a fiduciary’s duty to a client is to act solely in the best interest of the client. Regardless of the plaintiff’s personal concerns (i.e., divorce, long-term illness, etc.), the plaintiff had a duty to maintain clients’ fee as low as possible, unless, the plaintiff provided additional benefits and/or services which would reasonably justify the increase in client fees (which based on the facts provided does not appear to be the case).