What to Do When Your Financial Adviser Fails to Act in Your Best Interest

Is hiring a financial advisor in your best interest? In many cases, it may be when it comes to your investments. According to the SEC, approximately 6 in 10 households in the United States own securities investments. With more Americans investing, there is an increased need for financial advisors who can provide valuable insight into how best to invest and manage your accounts.  A financial advisor acting in your best interest is one of the best assets you can have when it comes to your investments. However, not all financial advisors live up to this standard.  Before you hire a fiduciary to represent your investment interests, it is important to first understand the duties your financial advisor owes you. By doing so, you will be better equipped to recognize when yours may not be acting in your best interest.  If you need help determining whether a financial advisor acting in your best interest and what you can do if they did not, we want to help. The Law Offices of Robert Wayne Pearce, P.A., has represented countless defrauded investors who have fallen victim to the actions of their advisors. Investment loss attorney Robert Wayne Pearce has over 40 years of experience handling a broad range of securities and investment disputes. Give us a call today to see what we can do for you. Fiduciary and Financial Advisor: Your Best Interest Is What Matters Most When you hire a financial advisor to provide you counsel regarding your investments, you expect that they will act in your best interest. The relationship between you and your advisor is a “fiduciary” relationship.  This fiduciary relationship requires a financial advisor to act in a certain manner when it comes to their clients’ investments. But what exactly is a “fiduciary duty,” and how do I know if my financial advisor owes me a duty to act in my best interest? We’ll dive into these questions in more detail below.  Fiduciary Duties: An Overview A fiduciary is someone who acts on behalf of someone else. In the investment context, a financial advisor who is hired to provide counsel and advice regarding their investments is a fiduciary. At its core, a fiduciary relationship relies on trust and good faith between the advisor and the client.  Being a fiduciary means that an investment advisor must act in their client’s best interest, putting their client’s needs over their own needs. In short, a fiduciary duty is a legal responsibility owed by the fiduciary (financial advisor) to act in the principal’s (client) best interest.  A fiduciary’s main duties are to: Put the client’s best interests first, ahead of their own; Avoid conflicts of interest or disclose them to the client as soon as they arise; and Act with honesty, good-faith, and loyalty toward the client.  Failure by a financial advisor to act in your best interest may constitute a breach of their fiduciary duty. This can result in serious liability for the advisor. Is Everyone a Fiduciary?  No, not everyone will be considered a fiduciary.  A fiduciary relationship is a special relationship that arises only in specific circumstances. The Investment Advisers Act of 1940 requires only registered investment advisors to abide by fiduciary obligations to act in a client’s best interests. Thus, all investment advisors who are registered with the SEC or a state securities regulator are fiduciaries. Broker-dealers and stockbrokers, on the other hand, are not fiduciaries. The New “Best Interest” Rule: A Replacement for the Suitability Standard Until recently, there was a lower standard of care that applied to most brokers and agents. This was governed by FINRA Rule 2111, otherwise referred to as the “suitability” standard.  Unlike a fiduciary standard of care, suitability required only that a broker-dealer make investment decisions that were “suitable” for his or her client based on the client’s investment objectives. They did not have to put their client’s interests ahead of their own. Further, they were free to recommend products that might benefit themselves, so long as the product was suitable for the client. This changed on June 30, 2020, when the SEC enacted Regulation BI—the Best Interest Rule. Now, regular stockbrokers also have a duty to act in the best interests of their retail clients when making recommendations about their investments. Specifically, Regulation BI imposes four obligations upon broker-dealers and associated persons:  Provide disclosures to customers regarding the relationship at the time of or before making any recommendations;  Exercise due care, or reasonable diligence, care, and skill, in making recommendations to customers;  Establish, maintain, and enforce procedures and policies to address potential conflicts of interest; and  Establish, maintain, and enforce procedures and policies to achieve compliance with Regulation BI.  If you feel your financial advisor or broker has failed to act in your best interest and live up to their obligations, seek help promptly from an experienced attorney. How Do I Know If Someone Is a Fiduciary? The easiest way to know for sure if a financial advisor is a fiduciary is to ask them. You can also check on the SEC Investment Advisor Database for federally registered investment advisor firms. Another way is to ask about an advisor or advisor firm’s pay structure. If an advisor is paid based on commission, he or she is most likely not a fiduciary. Fiduciaries usually work on fees only, so an advisor who advertises that they work on commission may not be acting as a fiduciary. But again, remember that even if your advisor is not a federally registered investment adviser held to a fiduciary standard, they still owe you certain obligations. All stockbrokers now have a duty to act in the best interests of their retail investors when making recommendations regarding their investments. Breach of Fiduciary Duty and What to Do If Your Financial Advisor Doesn’t Act in Your Best Interest A fiduciary breaches his or her duty by acting in their own interest rather than in their client’s interest. Additionally, failure to act in your best interest may give rise to a...

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How to File a Complaint Against a Financial Advisor

When investors hire a financial advisor, they expect the advisor to act in their best interest to prevent unnecessary losses. Unfortunately, however, financial advisors do not always live up to these expectations.  In some cases, a financial advisor fails to follow an investor’s requests and guidelines or otherwise engages in misconduct, causing the investor to suffer losses. When this happens, the investor may be able to file a complaint against the advisor to recover his or her losses.  But how do you file a complaint against a financial advisor? And when do you know it may be time to do so?  If you or a loved one has suffered significant investment losses at the hands of your financial advisor, contact The Law Offices of Robert Wayne Pearce, P.A., today. With more than 40 years of experience, our investment loss recovery attorneys can help you understand when and how to file a complaint against an advisor. Give us a call to discuss your case, and see what our team can do for you.  A Brief Overview of FINRA and How It Affects Your Ability to File a Complaint Against a Financial Advisor Before discussing how to file a complaint against an advisor, it is important to have an understanding of the process in general and whether you can bring a claim at all.  Financial advisors and their employers are governed by the Financial Industry Regulatory Authority (FINRA). FINRA’s stated mission is to “safeguard the investing public against fraud and bad practices.” FINRA has the power to take disciplinary actions against registered financial advisors or broker-dealers who violate the industry’s rules.  In 2019, FINRA reported that it initiated 854 disciplinary actions, levied $39.5 million in fines, and ordered restitution of $27.9 million be paid to investors. FINRA also expelled 6 member firms, suspended 21 member firms, barred 348 individuals from the securities industry, and suspended 415 individuals.  In short, FINRA provides significant protections for investors and processes through which advisors can be held accountable for their misconduct. However, it is important to note that you may not be able to file a complaint against an advisor in court as you might expect.  Required Investor Arbitration When you open a brokerage account with a member firm regulated by FINRA, you will likely sign a customer agreement. This agreement controls many aspects of the investor-advisor relationship, including potential disputes you may have with your advisor or their firm in the future.  More often than not, these customer agreements contain a mandatory arbitration clause. An investor must arbitrate through FINRA when:  There is a written arbitration agreement;  The dispute is with a broker or firm who is a member of FINRA; and The dispute is related to the securities business of the broker or firm.  If all these are true, then you must bring any claim you may have against your broker or their firm to FINRA arbitration, rather than filing a lawsuit in the court system. Nevertheless, you do still have an opportunity for your claim to be heard and to hold your advisor accountable.  How FINRA Arbitration Works Many people believe that going to court is the best way to hold a financial advisor accountable. However, this is not necessarily the case. In fact, FINRA arbitration is much more common than you might think.  Arbitration is an alternative dispute resolution method that allows parties to a legal dispute to resolve their issues outside of court. Much like in a court case, the parties file pleadings, present testimony and evidence, and make oral arguments.  The key difference between a trial and arbitration is the forum. Whereas a trial is presented in front of a judge or jury, an arbitration is presented before a panel of independent arbitrators chosen by the parties.  However, just as a judge or jury renders a final judgment at trial, an arbitration panel also renders a final and binding award on the parties in the arbitration. Thus, arbitration can still be an effective method of resolving your claims with a financial advisor.  When Can I File a FINRA Complaint Against a Financial Advisor? Just because you lost money on an investment does not necessarily mean you should file a complaint against your financial advisor. Rather, you must show that you lost money because of your financial advisor’s negligence or misconduct.  Some of the most common types of investment fraud for which you may be able to file a complaint against your financial advisor include:  Ponzi schemes,  Pyramid schemes, “Pump and dump” scams, Advance fee fraud,  High yield investment frauds, and  Offshore scams.  Additionally, financial advisors have a fiduciary duty to their investors to reasonably invest and manage their investments. If your financial advisor breaches his or her duty, resulting in monetary loss, you may be entitled to file a complaint.  Of course, there are many ways in which a financial advisor can commit misconduct. For more information on what constitutes a breach of duty by a financial advisor, read our post, Can I Sue My Financial Advisor Over Losses? Filing Your Complaint Against a Financial Advisor The first step in initiating your complaint is completing what is called a “statement of claim.” The statement of claim details what occurred in your particular case.  This is your opportunity to tell FINRA your side of the story, so it is imperative that it is as complete and detailed as possible. You then submit your statement of claim to FINRA, after which time the case will move forward.  The steps following the filing of your complaint include:  The filing of an answer by the opposing party,  Arbitrator selection,  Prehearing conferences,  Discovery,  The arbitration hearing, and Final decision and awards. FINRA’s arbitration process can be faster and less formal than a court trial. However, it is still helpful to have an experienced attorney in your corner.  An investment fraud attorney can help you draft and file your statement of claim. This is arguably one of the most important parts of the FINRA arbitration process. ...

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