Arms-Length (Sales) vs. Fiduciary (Advice) Relationships.
There are two forms of commercial relationships under the law:
(1) The Seller-Customer Relationship. The most common relationship is that between sellers and buyers, known as arms-length relationships or sales relationships. Under such relationships the purchaser (customer) possesses the duty to protect himself or herself; reliance upon the product salesperson is not available to the customer. The product salesperson cannot commit actual fraud, such as by misrepresenting the product, concealing patent defects in the product, or failing to disclose known latent defects.
Realizing that consumers in certain situations need additional protections, various laws and regulations exist which impose upon certain sellers additional obligations. Often these laws and regulations impose disclosure obligations. For example, the Securities Act of 1933 imposes substantial disclosure obligations upon issuers. Various aspects of the Securities Exchange Act of 1934, and the regulations adopted thereunder (including FINRA rules) also impose certain disclosure obligations upon broker-dealer firms. State insurance laws mandate certain disclosures for the sale of life and annuity products.
Other "market conduct" restrictions may exist. For example, various rules prohibit front-running in connection with execution of securities transactions, limits upon principal mark-ups and mark-downs in connection with bond sales and purchases, and limits upon commissions and/or 12b-1 fees received by broker-dealer firms for mutual fund sales.
(2) The Fiduciary-Client Relationship. At times our society concludes that the protections of the sales relationship, such as the obligation to avoid actual fraud, or even the imposition of additional disclosure obligations or certain rules restricting certain forms of market conduct, are insufficient. At such times the law imposes fiduciary status upon the advisor to the client.
In a fiduciary relationship, the fiduciary (advisor) steps into the shoes of the entrustor (client) and acts, with all of the knowledge and skill of a professional, on the client's behalf.
When Does a “Confidential Relation” Exist, Thereby Meriting the Imposition of Fiduciary Status?
“A fiduciary relationship may exist under a great variety of circumstances. Reliance may engender a duty of loyalty. Where the confidence and trust of another is accepted and is the basis for the guidance of another's affairs, a duty of loyalty is required. A disloyal adviser could have and should have declined to give advice." Cheryl Goss Weiss, A Review of the Historic Foundations of Broker-Dealer Liability for Breach of Fiduciary Duty, 23 Iowa J. Corp. L. 65, 68 (1997).
The fiduciary principle has its roots in antiquity. It is clearly reflected in the provisions of the Code of Hammurabi nearly four millennia ago, which set forth the rules governing the behavior of agents entrusted with property. See Blaine F. Aikin, Kristina A. Fausti, Fiduciary: A Historically Significant Standard, 30 Rev. Banking & Financial Law 155, 157 (2010-11).
Ethical norms arising from relationships of trust and confidence also existed in Judeo-Christian traditions ], “[C]ourts have linked the fiduciary duty of loyalty to the biblical principle that no person can serve two masters.” Id., at pp. 157-8. See also Beasley v. Swinton, 46 S.C. 426; 24 S.E. 313; 1896 S.C. LEXIS 67 (S.C. 1896) (“Christ said: ‘No man can serve two masters, for either he will hate the one and love the other, or else he will hold to the one and despise the other. Ye cannot serve God and Mammon [money].’") Id. at ____, quoting Matthew 6:24.], in Chinese law [“Chinese historical texts also recognize fiduciary principles of trust and loyalty. One of the three basic questions of self-examination attributed to Confucius (551 BC–479 BC) asks: ‘In acting on behalf of others, have I always been loyal to their interests?’” Aitkin and Fauti, supra at p.158], and in Greek [“Aristotle (384 BC–322 BC) consistently recognized that in economics and business, people must be bound by high obligations of loyalty, honesty and fairness and that society suffers when such obligations are not required.” Aitkin and Fauti, supra at p.158] and Roman [“Cicero (103 BC–46 BC) noted the relationship of trust between an agent and principal (known to Romans as mandatory and mandator, respectively), and emphasized that an agent who shows carelessness in his execution of trust behaves very dishonorably and ‘is undermining the entire basis of our social system.’” Aitkin and Fauti, supra at 158-9].
Through elaboration in English law and U.S. law, fiduciary law has evolved over the centuries to refer to a wide range of situations in which courts have imposed duties on persons acting in particular situations that exceed those required by the common law duties of ordinary care and fair dealing which exist in arms-length relationships. Fiduciary duties find their origin in a mix of the laws of trust law, tort law, contract law, and agency law. And, through the gradual expansion of the situations in which fiduciary duties are required as our society evolves, today fiduciary status attaches to many different situations.
The fact that control of property (as would exist in a trustee-beneficiary relationship) or the management of property (as in the grant of discretion over securities) is nonexistent does not mean that fiduciary status does not attach. There has long been recognition that the mere provision of advice may result in a fiduciary relationship. See, e.g., Restatement (Second) of Torts § 874 cmt. a (1979) (“A fiduciary relation exists between two persons when one of them is under a duty to act for or to give advice for the benefit of another upon matters within the scope of the relation.” citing Restatement, Second, Trusts § 2).
The "Fiduciary Principle." In dictum in the 1998 English (U.K.) case of Bristol and West Building Society v. Matthew, Lord Millet undertook what has been described as a “masterful survey” of the fiduciary principle: "A fiduciary is someone who has undertaken to act for and on behalf of another in a particular matter in circumstances which give rise to a relationship of trust and confidence. The distinguishing obligation of a fiduciary is the obligation of loyalty. The principle is entitled to the single-minded loyalty of his fiduciary. This core liability has several facets. A fiduciary must act in good faith; he must not place himself in a position where his duty and his interest may conflict; he may not act for his own benefit or the benefit of a third person without the informed consent of his principal. This is not intended to be an exhaustive list, but it is sufficient to indicate the nature of the fiduciary obligations. They are the defining characteristics of a fiduciary."
A fiduciary is “a person having a duty, created by his undertaking, to act primarily for the benefit of another in matters connected with his undertaking.” RESTATEMENT (2D) AGENCY § 13 comment (a) (1958). “[T]he general fiduciary principle requires that the agent subordinate the agent’s interests to those of the principal and place the principal’s interests first as to matters connected with the agency relationship.” RESTATEMENT (3D) AGENCY § 8.01 cmt. b (2007). See also Laby, Arthur B., “The Fiduciary Obligation as the Adoption of Ends,” Buffalo L. Rev 99, 103 (2008), available at: http://ssrn.com/ abstract=1124722. See also Varity Corp. v. Howe, 516 U.S. 489, 116 S.Ct. 1065, 134 L.Ed.2d 130 (1996), in which the U.S. Supreme Court, applying ERISA, stated that: “There is more to plan (or trust) administration than simply complying with the specific duties imposed by the plan documents or statutory regime; it also includes the activities that are "ordinary and natural means" of achieving the "objective" of the plan. Bogert & Bogert, supra, § 551, at 41-52. Indeed, the primary function of the fiduciary duty is to constrain the exercise of discretionary powers which are controlled by no other specific duty imposed by the trust instrument or the legal regime. If the fiduciary duty applied to nothing more than activities already controlled by other specific legal duties, it would serve no purpose.” Id. (Emphasis added.)
In summary, the fiduciary principle imposes constraints upon the conduct of the adviser. It requires that the adviser subordinate its, his or her own interests to that of the client. It requires that the adviser steps into the shoes of the client, with all of the adviser's required level of knowledge and skill, and use the adviser's abilities to advance the ends of the clients.
To Understand the Application of Fiduciary Duties, You Must Know the Reasons for their Application.
The key to understanding fiduciary principles, and why, when and how they are applied, rests in first discerning the various public policy objectives the fiduciary standard of conduct is designed to meet. The following listing of public policy objectives is not all-inclusive, but rather provides an overview of the reasons for the application of the fiduciary principle to certain relationships.
Fiduciary Status Addresses “Overreaching” When Person-To-Person Advice is Provided
The Investment Advisers Act of 1940 ("Advisers Act") embodied state common law's existing application of the fiduciary standard of conduct to those providing personalized investment advice. State common law continues to apply this standard to those who provide personalized investment advice and whom are in relatinoships of trust and confidence with their clients. In other words, the Advisers Act never stated that brokers were not fiduciaries - it just ensured that a certain type of advisor - those receiving special compensation - would always be considered fiduciaries.
The U.S. Supreme Court stated that the Advisers Act “recognizes that, with respect to a certain class of investment advisers, a type of personalized relationship may exist with their clients … The essential purpose of [the Advisers Act] is to protect the public from the frauds and misrepresentations of unscrupulous tipsters and touts and to safeguard the honest investment adviser against the stigma of the activities of these individuals by making fraudulent practices by investment advisers unlawful." Lowe v. SEC, 472 U.S. 181, 200, 201 (1985). “The Act was designed to apply to those persons engaged in the investment-advisory profession -- those who provide personalized advice attuned to a client's concerns, whether by written or verbal communication. "Id. at p.208. The dangers of fraud, deception, or overreaching that motivated the enactment of the statute are present in personalized communications ….” Id. at p. 210.
Consumers’ Lack of Desire to Expend Time and Resources on Monitoring
The inability of clients to protect themselves while receiving guidance from a fiduciary does not arise solely due to a significant knowledge gap or due to the inability to expend funds for monitoring of the fiduciary.
Even highly knowledgeable and sophisticated clients (including many financial institutions) rely upon fiduciaries. While they may possess the financial resources to engage in stringent monitoring, and may even possess the requisite knowledge and skill to undertake monitoring themselves, the expenditure of time and money to undertake monitoring would deprive the investors of time to engage in other activities. Indeed, since sophisticated and wealthy investors have the ability to protect themselves, one might argue they might as well manage their investments themselves and save the fees. Yet, reliance upon fiduciaries is undertaken by wealthy and highly knowledgeable investors and without expenditures of time and money for monitoring of the fiduciary. In this manner, “fiduciary duties are linked to a social structure that values specialization of talents and functions.” Tamar Frankel, Ch. 12, United States Mutual Fund Investors, Their Managers and Distributors, in Conflicts Of Interest: Corporate Governance And Financial Markets (Kluwer Law International, The Netherlands, 2007), edited by Luc Thévenoz and Rashid Barhar.
The Shifting of Monitoring Costs to Government
In service provider relationships which arise to the level of fiduciary relations, it is highly costly for the client to monitor, verify and ensure that the fiduciary will abide by the fiduciary’s promise and deal with the entrusted power only for the benefit of the client. Indeed, if a client could easily protect himself or herself from an abuse of the fiduciary advisor’s power, authority, or delegation of trust, then there would be no need for imposition of fiduciary duties. Hence, fiduciary status is imposed as a means of aiding consumers in navigating the complex financial world, by enabling trust to be placed in the advisor by the client.
Fiduciary relationships are relationships in which the fiduciary provides to the client a service that public policy encourages. When such services are provided, the law recognizes that the client does not possess the ability, except at great cost, to monitor the exercise of the fiduciary’s powers. Usually the client cannot afford the expense of engaging separate counsel or experts to monitor the conflicts of interest the person in the superior position will possess, as such costs might outweigh the benefits the client receives from the relationship with the fiduciary. Enforcement of the protections thereby afforded to the client by the presence of fiduciary duties is shifted to the courts and/or to regulatory bodies. Accordingly, a significant portion of the cost of enforcement of fiduciary duties is shifted from individual clients to the taxpayers, although licensing and related fees, as well as fines, may shift monitoring costs back to all of the fiduciaries which are regulated.
Consumers’ Difficulty in Tying Performance To Results
The results of the services provided by a fiduciary advisor are not always related to the honesty of the fiduciary or the quality of the services. For example, an investment adviser may be both honest and diligent, but the value of the client’s portfolio may fall as the result of market events. Indeed, rare is the instance in which an investment adviser provides substantial positive returns for each incremental period over long periods of time – and in such instances the honesty of the investment adviser should be suspect (as was the situation with Madoff).
Consumers’ Difficulty in Identifying and Understanding Conflicts Of Interest
Most individual consumers of financial services in America today are unable to identify and understand the many conflicts of interest which can exist in financial services. For example, a customer of a broker-dealer firm might be aware of the existence of a commission for the sale of a mutual fund, but possess no understanding that there are many mutual funds available which are available without commissions (i.e., sales loads). Moreover, brokerage firms have evolved into successful disguisers of conflicts of interest arising from third-party payments, including payments through such mechanisms as contingent deferred sales charges, 12b-1 fees, payment for order flow, payment for shelf space, and soft dollar compensation.
Survey after survey (including the Rand Report) has concluded that consumers place a very high degree of trust and confidence in their investment adviser, stockbroker, or financial planner. These consumers deal with their advisors on unequal terms, and often are unable to identify the conflicts of interest their “financial consultants” possess. As evidence of the lack of knowledge possessed by consumers, the Rand Report noted that 30% of investors believed that they did not pay their financial consultant any fees! This calls into substantial question the conclusion derived from the Rand Report’s survey that most customers of brokers are happy with their financial consultant.
Transparency is important, but even when compensation is fully disclosed, few individual investors realize the impact high fees and costs can possess on their long-term investment returns; often individual investors believe that a more expensive product will possess higher returns. In a landmark study, Professors “Madrian, Choi and Laibson recruited two groups of students in the summer of 2005 -- MBA students about to begin their first semester at Wharton, and undergraduates (freshmen through seniors) at Harvard. All participants were asked to make hypothetical investments of $10,000, choosing from among four S&P 500 index funds. They could put all their money into one fund or divide it among two or more. ‘We chose the index funds because they are all tracking the same index, and there is no variation in the objective of the funds,’ Madrian says … ‘Participants received the prospectuses that fund companies provide real investors … the students ‘overwhelmingly fail to minimize index fund fees,’ the researchers write. ‘When we make fund fees salient and transparent, subjects' portfolios shift towards lower-fee index funds, but over 80% still do not invest everything in the lowest-fee fund’ … [Said Professor Madrian,] ‘What our study suggests is that people do not know how to use information well.... My guess is it has to do with the general level of financial literacy, but also because the prospectus is so long." Knowledge@Wharton, “Today's Research Question: Why Do Investors Choose High-fee Mutual Funds Despite the Lower Returns?” citing Choi, James J., Laibson, David I. and Madrian, Brigitte C., “Why Does the Law of One Price Fail? An Experiment on Index Mutual Funds” (March 6, 2008). Yale ICF Working Paper No. 08-14. Available at SSRN: http://ssrn.com/abstract=1125023. See also Choi, Liaison and Madrian, “Why Does the Law of One Price Fail? An Experiment on Index Mutual Funds," 2010, Review of Financial Studies, 23(4): 1405-1432.
For Fiduciaries the Cost of Proving Trustworthiness Is Quite High
How does one prove one to be “honest” and “loyal”? The cost to a fiduciary in proving that the advisor is trustworthy could be extremely high – so high as to exceed the compensation gained from the relationships with the advisors’ clients.
In his influential article discussing the creation of the federal securities acts, and in particular their moral purpose, John Walsh (formerly of the SEC’s OCIE) reviewed the legislative history underlying the creation of the Investment Advisers Act:
In his influential article discussing the creation of the federal securities acts, and in particular their moral purpose, John Walsh (formerly of the SEC’s OCIE) reviewed the legislative history underlying the creation of the Investment Advisers Act:
- "As part of a congressionally mandated review of investment trusts the agency also studied investment advisers. The Advisers Act was based on that study. By the time it passed, it was a consensus measure having the support of virtually all advisers."
- "Investment advisers’ professionalism, and particularly their professional ethics, dominated the SEC study and the legislative history of the Act. Industry spokespersons emphasized their professionalism. The 'function of the profession of investment counsel,' they said, 'was to render to clients on a personal basis competent, unbiased and continuous advice regarding the sound management of their investments.' In terms of their professionalism they compared themselves to physicians and lawyers. However, industry spokespersons indicated that their efforts to maintain professional standards had encountered a serious problem. The industry, they said, covered 'the entire range from the fellow without competence and without conscience at one end of the scale, to the capable, well-trained, utterly unbiased man or firm, trying to render a purely professional service, at the other end.' Recognizing this range, 'a group of people in the forefront of the profession realized that if professional standards were to be maintained, there must be some kind of public formulation of a standard or a code of ethics.' As a result, the Investment Counsel Association of America was organized and issued a Code of Ethics. Nonetheless, the problem remained that the Association could not police the conduct of those who were not members nor did it have any punitive power."
- "The SEC Study noted that it had been the unanimous opinion of all who had testified at its public examination, both members and nonmembers of the Association, that the industry’s voluntary efforts could not cope with the 'most elemental and fundamental problem of the investment counsel industry—the investment counsel ‘fringe’ which includes those incompetent and unethical individuals or organizations who represent themselves as bona fide investment counselors.' Advisers of that type would not voluntarily submit to supervision or policing. Yet, all counselors suffered from the stigma placed on the activities of the individuals on the fringe. Thus, an agency was needed with compulsory and national power that could compel the fringe to conform to ethical standards."
- "As a result of the Commission’s report to Congress, the Senate Committee on Banking and Currency determined that a solution to the problems of investment advisory services could not be affected without federal legislation. In addition, both the Senate and House Committees considering the legislation determined that it was needed not only to protect the public, but also to protect bona fide investment counselors from the stigma attached to the activities of unscrupulous tipsters and touts. During the debate in Congress, the special professional relationship between advisers and their clients was recognized. It is, said one representative, 'somewhat [like that] of a physician to his patient.' The same Congressman continued that members of the profession were 'to be complimented for their desire to improve the status of their profession and to improve its quality.'"
This is why it is important to fiduciary advisors to be able to distinguish themselves from non-fiduciaries. A recent example of the problems faced by investment advisers was the “fee-based brokerage accounts” final rule adopted by the SEC in 2005, which would have permitted brokers to provide the same functional investment advisory services as investment advisers but without application of fiduciary standards of conduct. This would have negated to a large degree economic incentives for persons to become investment advisers and be subject to the higher standard of conduct. The SEC’s fee-based accounts rule was overturned in Financial Planning Ass'n v. S.E.C., 482 F.3d 481 (D.C. Cir., 2007).
One might reasonably ask why “honest investment advisers” (to use the language of the U.S. Supreme Court in SEC vs. Capital Gains) had to be protected by the Advisers Act. Was it not enough to just protect consumers? The answer can be found in economic principles, as set forth in the classic thesis for which George Akerlof won a Nobel Prize:
One might reasonably ask why “honest investment advisers” (to use the language of the U.S. Supreme Court in SEC vs. Capital Gains) had to be protected by the Advisers Act. Was it not enough to just protect consumers? The answer can be found in economic principles, as set forth in the classic thesis for which George Akerlof won a Nobel Prize:
There are many markets in which buyers use some market statistic to judge the quality of prospective purchases. In this case there is incentive for sellers to market poor quality merchandise, since the returns for good quality accrue mainly to the entire group whose statistic is affected rather than to the individual seller. As a result there tends to be a reduction in the average quality of goods and also in the size of the market.
George A. Akerloff, The Market for "Lemons": Quality Uncertainty and the Market Mechanism, The Quarterly Journal of Economics, Vol. 84, No. 3. (Aug., 1970), p.488. George Akerloff demonstrated “how in situations of asymmetric information (where the seller has information about product quality unavailable to the buyer), ‘dishonest dealings tend to drive honest dealings out of the market.’ Beyond the unfairness of the dishonesty that can occur, this process results in less overall dealing and less efficient market transactions.” Frank B. Cross and Robert A. Prentice, The Economic Value of Securities Regulation, 28 Cardoza L.Rev. 334, 366 (2006). As George Akerloff explained: “[T]he presence of people who wish to pawn bad wares as good wares tends to drive out the legitimate business. The cost of dishonesty, therefore, lies not only in the amount by which the purchaser is cheated; the cost also must include the loss incurred from driving legitimate business out of existence.” Akerloff at p. 495.
Monitoring and Reputational Threats are Largely Ineffective
The ability of “the market” to monitor and enforce a fiduciary’s obligations, such as through the compulsion to preserve a firm’s reputation, is often ineffective in fiduciary relationships. This is because revelations about abuses of trust by fiduciaries can be well hidden (such as through mandatory arbitration clauses and secrecy agreements regarding settlements), or because marketing efforts by fiduciary firms are so strong and pervasive that they overwhelm the reported instances of breaches of fiduciary duties.
Public Policy Encourages Specialization, Which Necessitates Fiduciary Duties
As Professor Tamar Frankel, long the leading scholar in the area of fiduciary law as applied to securities regulation, once noted: “[A] prosperous economy develops specialization. Specialization requires interdependence. And interdependence cannot exist without a measure of trusting. In an entirely non-trusting relationship interaction would be too expensive and too risky to maintain. Studies have shown a correlation between the level of trusting relationships on which members of a society operate and the level of that society’s trade and economic prosperity.” Tamar Frankel, Trusting And Non-Trusting: Comparing Benefits, Cost And Risk, Working Paper 99-12, Boston University School of Law.
Fiduciary duties are imposed by law when public policy encourages specialization in particular services, such as investment management or law, in recognition of the value such services provide to our society. For example, the provision of investment consulting services under fiduciary duties of loyalty and due care encourages participation by investors in our capital markets system. Hence, in order to promote public policy goals, the law requires the imposition of fiduciary status upon the party in the dominant position. Through the imposition of such fiduciary status the client is thereby afforded various protections. These protections serve to reduce the risks to the client which relate to the service, and encourage the client to utilize the service. Fiduciary status thereby furthers the public interest.
Fiduciary duties are imposed by law when public policy encourages specialization in particular services, such as investment management or law, in recognition of the value such services provide to our society. For example, the provision of investment consulting services under fiduciary duties of loyalty and due care encourages participation by investors in our capital markets system. Hence, in order to promote public policy goals, the law requires the imposition of fiduciary status upon the party in the dominant position. Through the imposition of such fiduciary status the client is thereby afforded various protections. These protections serve to reduce the risks to the client which relate to the service, and encourage the client to utilize the service. Fiduciary status thereby furthers the public interest.
Public Policy Encourages Participation in our Capital Markets
Investment advisory services encourage participation by investors in our capital markets system, which in turn promotes economic growth. The first and overriding responsibility any financial professional has is to all of the participants of the market. This primary obligation is required in order to maintain the perception and reality that the market is a fair game and thus encourage the widest possible participation in the capital allocation process. The premise of the U.S. capital market is that the widest possible participation in the market will result in the most efficient allocation of financial resources and, therefore, will lead to the best operation of the U.S. and world-wide economy. Indeed, academic research has revealed that individual investors who are unable to trust their financial advisors are less likely to participate in the capital markets.
The impact of the application of the fiduciary standard upon financial/investment adviser - client relationships, and the potential for U.S. economic growth, should not be underestimated. “We find that trusting individuals are significantly more likely to buy stocks and risky assets and, conditional on investing in stock, they invest a larger share of their wealth in it. This effect is economically very important: trusting others increases the probability of buying stock by 50% of the average sample probability and raises the share invested in stock by 3.4 percentage points … lack of trust can explain why individuals do not participate in the stock market even in the absence of any other friction … [W]e also show that, in practice, differences in trust across individuals and countries help explain why some invest in stocks, while others do not. Our simulations also suggest that this problem can be sufficiently severe to explain the percentage of wealthy people who do not invest in the stock market in the United States and the wide variation in this percentage across countries.” Guiso, Luigi, Sapienza, Paola and Zingales, Luigi. “Trusting the Stock Market” (May 2007); ECGI - Finance Working Paper No. 170/2007; CFS Working Paper No. 2005/27; CRSP Working Paper No. 602. Available at SSRN: http://ssrn.com/abstract=811545.
The impact of the application of the fiduciary standard upon financial/investment adviser - client relationships, and the potential for U.S. economic growth, should not be underestimated. “We find that trusting individuals are significantly more likely to buy stocks and risky assets and, conditional on investing in stock, they invest a larger share of their wealth in it. This effect is economically very important: trusting others increases the probability of buying stock by 50% of the average sample probability and raises the share invested in stock by 3.4 percentage points … lack of trust can explain why individuals do not participate in the stock market even in the absence of any other friction … [W]e also show that, in practice, differences in trust across individuals and countries help explain why some invest in stocks, while others do not. Our simulations also suggest that this problem can be sufficiently severe to explain the percentage of wealthy people who do not invest in the stock market in the United States and the wide variation in this percentage across countries.” Guiso, Luigi, Sapienza, Paola and Zingales, Luigi. “Trusting the Stock Market” (May 2007); ECGI - Finance Working Paper No. 170/2007; CFS Working Paper No. 2005/27; CRSP Working Paper No. 602. Available at SSRN: http://ssrn.com/abstract=811545.
Public Policy Encourages Saving and Proper Investing
As stated in a 2002 white paper authored by Professor Macy: “If people do not make careful, rational decisions about how to self-regulate the patterns of consumption and savings and investment over their life cycles, government will have to step in to save people from the consequences of their poor planning. Indeed the entire concept of government-sponsored, forced withholding for retirement (Social Security) is based on the assumption that people lack the foresight or the discipline, or the expertise to plan for themselves. The weaknesses in government-sponsored social security and retirement systems places increased importance on the ability of people to secure for themselves adequate financial planning.” Macy, Jonathan R., “Regulation of Financial Planners” (April 2002), a White Paper prepared for the Financial Planning Association; http://fpanet.org/docs/assets/ExecutiveSummaryregulationoffps.pdf provides an Executive Summary of the paper.
How Many Fiduciary Duties Exist?Fiduciary obligations are not finite. They cannot be limited by descriptions such as those found in rules. This is because new types of both actual and constructive fraud emerge, and the fiduciary standard must be free to adapt to new practices.
In the fiduciary context, when we refer to "fraud" we mean both "actual fraud" (such as that arising from misrepresentation or fraudulent concealment) and "constructive fraud." See Howell v. Texaco Inc., 112 P.3d 1154, 1161 (Okla.2004); Patel v. OMH Medical Center, Inc., 987 P.2d 1185, 1199 (Okla. 1999). A breach of one's fiduciary obligation constitutes constructive fraud.
In the United States it is common to refer to a “triad of fiduciary duties” - the duties of due care, good faith and loyalty. For example, the Delaware Supreme Court embraced the notion of a “triad” of fiduciary duties: loyalty, care, and good faith. See Emerald Partners v. Berlin, 787 A.2d 85, 90 (Del. 2001) (noting that “directors of Delaware corporations have a triad of primary fiduciary duties: due care, loyalty, and good faith”); Malone v. Brincat, 722 A.2d 5, 10 (Del. 1998) (observing “[t]hat triparte fiduciary duty does not operate intermittently but is the constant compass by which all director actions for the corporation and interactions with its shareholders must be guided”); see also In re Fleming Packaging Corp., 370 B.R. 774 (Bankr. C.D. Ill., 2007) (“Corporate directors and officers owe the corporation a triad of fiduciary duties: due care, loyalty and good faith.”). See also In Re: Innovation Fuels, Inc., 2013 Bankr. Lexis 3041.
These tri-parte fiduciary duties often encompass other fiduciary obligations. For example, the fiduciary obligation of "obedience" may be found as an aspect of the duty of loyalty, or the duty of due care, or some combination of both.
Under English common law, from which the American system of jurisprudence was initially derived, it is reasonably well established that fiduciary status gives rise to five principal duties: (1) the no conflict rule preventing a fiduciary placing himself in a position where his own interests conflict or may conflict with those of his client or beneficiary; (2) the no profit rule which requires a fiduciary not to profit from his position at the expense of his client or beneficiary; (3) the undivided loyalty rule which requires undivided loyalty from a fiduciary to his client or beneficiary; (4) the duty of confidentiality which prohibits the fiduciary from using information obtained in confidence from his client or beneficiary other than for the benefit of that client or beneficiary; and (5) the duty of due care, to act with reasonable diligence and with requisite knowledge, experience and attention. The first three of these duties are often used to describe the three aspects of a fiduciary duty's of loyalty.
In the posts that follow, I focus in on the two core fiduciary obligations - the fiduciary duty of loyalty and the fiduciary duty of due care. However, in so doing, I acknowledge that other fiduciary duties exist, which may or may not flow from these two core fiduciary duties. For example, the fiduciary duties of obedience, confidentiality, and utmost good faith may alternatively be viewed as flowing from the two core fiduciary obligations of due care and loyalty, or they may be regarded as separate fiduciary obligations. Other fiduciary obligations may exist.
Ron A. Rhoades, JD, CFP® is the Program Director for the Financial Planning Program and an Asst. Professor of Finance at Western Kentucky University, at its beautiful main campus in Bowling Green, KY. He is a CFP certificant, a regional board member of NAPFA, a consultant to the Garrett Planning Network, and a member of the Steering Group for The Committee for the Fiduciary Standard.
This blog represents Ron's personal views and is not necessarily indicative of the views of any institution, organization or firm with whom he may be associated.
Ron is scheduled to provide two presentations in early 2016 on the DOL's rules and the general impact of the fiduciary standard on the financial services industry:
- Feb. 24-25, 2016: FPA of Oregon and S.W. Washington Midwinter Conference 2016, where Ron will discuss: "The DOL's Transformational Conflict of Interest Rule"
- Feb. 26, 2016: FPA of Puget Sound's 2016 Annual Symposium, where Ron will discuss: "Reducing Your Risks in the New Fiduciary Era"
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Public comments to this blog are welcome, provided that no advertising occurs and that decorum is maintained. To reach Prof. Rhoades directly, please e-mail him at: Ron.Rhoades@WKU.edu. Thank you.
Public comments to this blog are welcome, provided that no advertising occurs and that decorum is maintained. To reach Prof. Rhoades directly, please e-mail him at: Ron.Rhoades@WKU.edu. Thank you.
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