conflicts-of-interest

Conflicts of Interest

Purpose

Identify, disclose, and mitigate conflicts of interest that arise in advisory and brokerage relationships. This is a cross-cutting compliance topic referenced by nearly every other regulatory skill, covering compensation-based conflicts, proprietary product incentives, principal trading, soft dollar arrangements, pay-to-play restrictions, gifts and entertainment limits, personal trading obligations, and the mitigation hierarchy that governs how firms and individuals must address conflicts under both fiduciary and Reg BI standards.

Layer

9 — Compliance & Regulatory Guidance

Direction

prospective

When to Use

• Evaluating whether a recommendation or transaction involves a material conflict of interest
• Assessing whether compensation structures create incentives that may not align with client interests
• Determining disclosure obligations for conflicts in advisory or brokerage accounts
• Reviewing whether a firm's conflict-mitigation policies satisfy Reg BI or fiduciary duty requirements
• Analyzing proprietary product recommendations and affiliated product preferences
• Evaluating soft dollar arrangements and best execution obligations
• Reviewing pay-to-play compliance for government entity advisory mandates
• Assessing gifts, entertainment, or non-cash compensation under FINRA rules
• Designing or auditing a code of ethics and personal trading policies for access persons
• Evaluating fair allocation of investment opportunities across client accounts
• Reviewing outside business activities for potential conflicts

Core Concepts

Reg BI Conflict of Interest Obligation

Regulation Best Interest (SEC Rule 15l-1) requires broker-dealers to establish, maintain, and enforce written policies and procedures reasonably designed to identify and at a minimum disclose, or eliminate, all conflicts of interest associated with a recommendation. The obligation has three tiers: (1) disclose material conflicts, (2) mitigate conflicts that create an incentive to place the BD's interest ahead of the retail customer's interest, and (3) eliminate conflicts arising from sales contests, quotas, bonuses, and non-cash compensation that are based on the sale of specific securities or specific types of securities within a limited time period. The elimination requirement is absolute — disclosure and mitigation are insufficient for these enumerated conflicts.

IA Fiduciary Duty of Loyalty

Investment advisers owe a fiduciary duty of loyalty under IA Act Sections 206(1) and 206(2), which prohibits subordinating client interests to the adviser's own interests. The SEC's 2019 Interpretation of the Standard of Conduct for Investment Advisers clarifies that this duty requires full and fair disclosure of all material facts relating to the advisory relationship, including all material conflicts of interest. Disclosure must be sufficiently specific that a client can understand the conflict and provide meaningful consent. Generic or boilerplate disclosure is insufficient. The adviser must either eliminate the conflict or make full disclosure and obtain informed client consent.

Compensation-Based Conflicts

Compensation structures are the most pervasive source of conflicts:

• Commission vs. fee-based compensation: Commission-based models incentivize transaction volume and product selection that generates higher commissions. Fee-based models (AUM fees) can incentivize advisers to recommend against distributions or debt paydown that would reduce billable assets.
• Revenue sharing: Fund companies pay broker-dealers for preferred placement on platforms, recommended lists, or shelf space. This creates an incentive to recommend revenue-sharing partners' products over potentially superior alternatives. Must be disclosed and mitigated.
• 12b-1 fee trails: Ongoing distribution fees (typically 0.25%-1.00%) paid to the recommending firm create an incentive to recommend higher-cost share classes with 12b-1 fees over lower-cost share classes of the same fund, or over comparable lower-cost funds.
• Differential compensation across product types: Firms may pay higher payout rates for proprietary products, annuities, or alternative investments. A representative earning a 7% gross commission on a variable annuity versus 1% on an ETF faces a powerful conflict. These differentials must be mitigated under Reg BI and disclosed under fiduciary duty.
• Transaction-based compensation: Compensation tied to trade volume incentivizes churning and excessive trading. Reg BI requires mitigation of this incentive; fiduciary duty prohibits excessive trading that serves the adviser's compensation interest.

Proprietary Product Conflicts

Recommending proprietary or affiliated products — funds, insurance products, or structured notes issued by the firm or its affiliates — creates a direct financial conflict because the firm earns revenue from both the advisory/brokerage fee and the product-level fee. Heightened disclosure requirements apply. SEC enforcement actions have targeted firms that failed to adequately disclose their preference for proprietary products, particularly in cases where lower-cost third-party alternatives were available. Under fiduciary duty, an adviser must demonstrate that the proprietary product recommendation is in the client's best interest despite the conflict, not merely that it is suitable.

Principal Trading

When an investment adviser acts as principal — buying from or selling to a client's account from the firm's own inventory — IA Act Section 206(3) requires transaction-by-transaction disclosure to and consent from the client before the completion of each transaction. This is one of the most restrictive conflict-management requirements in securities law. Blanket advance consent is not sufficient. Broker-dealer principal trades are governed differently under the Exchange Act and are subject to best execution, fair pricing, and markup/markdown rules (FINRA Rule 2121) rather than per-transaction consent.

Soft Dollars

Soft dollar arrangements involve directing client brokerage commissions to broker-dealers in exchange for research and other services. Section 28(e) of the Securities Exchange Act provides a safe harbor permitting advisers to pay more than the lowest available commission if the adviser determines in good faith that the commission is reasonable in relation to the value of the brokerage and research services received.

• Eligible products and services: Research reports, financial data, analytical software used in the investment decision-making process. The safe harbor covers only "research" and "brokerage" as defined by the SEC.
• Ineligible uses: Office rent, travel, entertainment, telephone, administrative software, and other overhead are not eligible under Section 28(e). Using client commissions for non-eligible products is a breach of fiduciary duty.
• Mixed-use allocations: When a product or service has both eligible research and ineligible administrative uses, the adviser must make a reasonable, documented allocation and pay for the ineligible portion with its own funds.
• Disclosure: Soft dollar practices must be disclosed on Form ADV Part 2A, Item 12. The adviser must describe the products and services received, whether clients may pay commissions higher than obtainable elsewhere, and how mixed-use products are allocated.
• Best execution obligation: The existence of soft dollar arrangements does not relieve the adviser of the duty to seek best execution. The adviser must periodically evaluate whether clients are receiving best execution despite the higher commissions.

Pay-to-Play

SEC Rule 206(4)-5 under the Investment Advisers Act restricts political contributions by investment advisers and their covered associates to government officials who can influence the selection of advisers for government entity clients (such as public pension funds and state-managed investment pools).

• Two-year look-back: An adviser is prohibited from receiving compensation for advisory services to a government entity for two years after the adviser or any covered associate makes a political contribution to an official of that government entity.
• De minimis exception: Contributions of $350 or less per election to officials for whom the contributor is entitled to vote, and $150 or less per election for officials for whom the contributor is not entitled to vote, are exempt from the two-year ban.
• Covered associates: Include any employee or officer of the adviser who solicits a government entity, any person who supervises such a solicitor (directly or indirectly), and all executive officers of the adviser.
• Third-party solicitation: Advisers are prohibited from paying third parties to solicit government entity clients unless the solicitor is a regulated person (registered BD or registered IA) subject to equivalent pay-to-play restrictions.

Gifts and Entertainment

• FINRA Rule 3220: Limits gifts to $100 per person per year from a member or associated person to any person where the gift is in relation to the business of the employer of the recipient. Exceptions exist for personal gifts unrelated to business and promotional items of nominal value. Firms must keep records of all gifts given.
• SEC expectations for RIAs: No specific dollar limit, but advisers must ensure that gifts and entertainment do not create conflicts of interest, do not compromise the adviser's fiduciary duty, and are consistent with the firm's code of ethics. Regulators scrutinize lavish entertainment that could improperly influence adviser recommendations.
• Non-cash compensation rules: FINRA Rules 2310 (variable annuities), 2320 (variable life), and 5110 (public offerings) restrict non-cash compensation to: (1) gifts under $100/year, (2) an occasional meal, event ticket, or entertainment not conditioned on sales, (3) payment for training or education meetings subject to specific conditions, and (4) internal firm-sponsored non-cash compensation arrangements that do not favor one product over another.

Personal Trading and Code of Ethics

SEC Rule 204A-1 requires every registered investment adviser to adopt and enforce a written code of ethics that includes:

• Standards of business conduct: Reflecting the adviser's fiduciary obligations.
• Compliance with federal securities laws: All supervised persons must comply.
• Personal securities reporting for access persons:
  • Initial holdings report: Within 10 days of becoming an access person, reporting all reportable securities held (information must be current as of no more than 45 days prior).
  • Annual holdings report: Reported at least once every 12 months (information must be current as of no more than 45 days prior to the report).
  • Quarterly transaction reports: Within 30 days of the end of each calendar quarter, reporting all transactions in reportable securities during the quarter.
• Pre-clearance: Required before access persons acquire securities in an IPO or limited offering (private placement). This prevents front-running and allocation conflicts.
• Front-running prohibition: Trading in personal accounts ahead of client orders or anticipated client transactions is prohibited and is a serious enforcement priority.
• Reportable securities: Broadly defined to include most securities; exceptions typically include direct obligations of the U.S. government, money market instruments, shares of money market funds, and shares of other open-end mutual funds (unless the adviser is the fund's adviser or principal underwriter).

Allocation Conflicts

When investment opportunities are capacity-constrained (such as IPO allocations, limited partnership interests, or block trades), the adviser must have written allocation policies ensuring fair and equitable distribution across client accounts.

• Side-by-side management: Managing performance-fee accounts alongside flat-fee accounts creates an incentive to allocate the best opportunities to performance-fee accounts. Firms must have policies to prevent this, such as pro-rata allocation or rotation systems.
• Aggregation and allocation: When block trades are executed for multiple accounts, the adviser must allocate fills at the average price and pro-rata. Pre-allocation documentation should be prepared before the trade is executed.
• Cherry-picking: The practice of reviewing trade results and then allocating winning trades to favored accounts (or the adviser's personal account) and losing trades to other accounts. This is a violation of fiduciary duty and a frequent SEC enforcement target.

Outside Business Activities and Affiliations

Activities conducted outside the advisory or BD relationship can create conflicts. FINRA Rule 3270 requires registered representatives to provide prior written notice to their member firm of any outside business activity. FINRA Rule 3280 requires prior written notice for private securities transactions ("selling away"). Investment advisers must disclose material outside business activities on Form ADV Part 2A, Item 10. Common conflicts include serving as a trustee or executor, operating a separate insurance business, holding positions in companies whose securities the adviser recommends, or receiving referral fees from third parties.

Mitigation Hierarchy

The regulatory expectation for addressing conflicts follows a clear hierarchy:

1. Eliminate: Remove the conflict entirely (e.g., stop accepting revenue sharing, prohibit proprietary product recommendations, eliminate conflicted compensation structures). This is the most effective approach and is required for certain enumerated conflicts under Reg BI.
2. Mitigate: If the conflict cannot be eliminated, implement policies, procedures, and structural safeguards to reduce its impact (e.g., compensation leveling across product types, independent review committees, information barriers, compliance pre-approval requirements).
3. Disclose: At minimum, all material conflicts must be fully and clearly disclosed. However, disclosure alone is not sufficient to satisfy fiduciary duty for conflicts that can reasonably be eliminated or mitigated. Under the SEC's 2019 Interpretation, an adviser cannot "disclose away" a conflict — disclosure does not cure an adviser's failure to act in the client's best interest.

Worked Examples

Example 1: Proprietary Fund Recommendation Without Adequate Disclosure

Scenario: An investment adviser manages client portfolios with a default allocation of 40% to large-cap equity. The adviser's parent company operates a family of proprietary mutual funds, including a large-cap equity fund with a 0.85% expense ratio. A comparable Vanguard index fund is available at 0.04%. The adviser places 35% of all client assets in the proprietary fund. The Form ADV Part 2A states only that "the adviser may recommend affiliated products" without quantifying the financial incentive or the cost differential. Compliance Issues:

• The adviser earns management fees on client accounts and the parent company earns fund-level fees on the proprietary fund — a layered conflict that is not adequately disclosed.
• The boilerplate ADV language fails the SEC's 2019 Interpretation standard requiring disclosure "sufficiently specific" for clients to understand the conflict.
• No analysis demonstrates that the proprietary fund's net-of-fee performance justifies the 81 basis-point cost differential. Analysis: The adviser has breached the fiduciary duty of loyalty. The disclosure is inadequate because it does not quantify the conflict (the dual-fee revenue stream, the specific cost differential, or the percentage of client assets placed in proprietary products). The mitigation hierarchy requires the adviser to either eliminate the conflict (use third-party funds), mitigate it (reduce the cost differential, implement independent review, cap the allocation), or at minimum provide specific disclosure that includes: the financial benefit to the parent company, the cost comparison with available alternatives, and the aggregate percentage of client assets in proprietary products. SEC enforcement actions (e.g., the 2018 and 2019 share-class initiative) have resulted in significant penalties and disgorgement for similar conduct.

Example 2: Dual-Registrant Compensation Conflict

Scenario: A financial professional is registered as both an investment adviser representative (IAR) and a registered representative (RR) of an affiliated broker-dealer. A client with $300,000 seeks advice on investing a rollover IRA. If the client opens an advisory account, the professional earns a 1% annual AUM fee ($3,000/year). If the client opens a brokerage account and purchases a variable annuity, the professional earns a 6% upfront commission ($18,000) plus a 0.25% annual trail. The professional recommends the variable annuity in the brokerage account. Compliance Issues:

• The six-fold compensation differential creates a material conflict under both Reg BI (for the brokerage recommendation) and fiduciary duty (for the advisory relationship).
• Under Reg BI's Conflict of Interest Obligation, the BD must have policies to identify and mitigate this differential compensation incentive.
• Under the Care Obligation, the BD must have a reasonable basis to believe the variable annuity is in the customer's best interest considering the available alternatives, including the advisory account.
• The client must receive a CRS (Form CRS) disclosing the dual capacity and the different compensation models. Analysis: The recommendation is suspect because the compensation incentive strongly favors the brokerage channel. To demonstrate compliance with Reg BI, the BD must document why the variable annuity is in the client's best interest (e.g., the client needs the insurance features, the long-term cost comparison favors the annuity, the client's specific circumstances make the annuity appropriate). The firm's mitigation policies should address differential compensation through measures such as compensation leveling, enhanced supervisory review of cross-channel recommendations, or mandatory documentation of the cost-benefit analysis. Absent these safeguards, the recommendation is likely to draw regulatory scrutiny.

Example 3: Preferential IPO Allocation to Performance-Fee Accounts

Scenario: A portfolio manager manages 20 client accounts, including four hedge fund accounts that pay a 20% performance fee and 16 institutional accounts that pay a flat 50 basis-point management fee. The firm receives a hot IPO allocation of 10,000 shares. The portfolio manager allocates 8,000 shares (80%) to the four performance-fee accounts and 2,000 shares (20%) to the 16 flat-fee accounts. The IPO appreciates 45% on the first day. Compliance Issues:

• The disproportionate allocation to performance-fee accounts suggests the manager is motivated by the 20% performance fee incentive rather than fair allocation principles.
• The performance-fee accounts received 80% of the allocation despite representing only 20% of the eligible accounts (four of 20).
• This pattern is consistent with cherry-picking and violates the adviser's fiduciary duty of loyalty and fair dealing obligations. Analysis: Fair allocation requires a pre-determined, consistently applied methodology — typically pro-rata based on account size, a rotation system, or another documented equitable approach. The allocation here fails on multiple dimensions: (1) no documented pre-allocation methodology, (2) gross disproportion between account count or AUM share and allocation received, (3) the direction of the disproportion aligns perfectly with the manager's financial incentive. The firm should implement and enforce policies requiring pre-trade allocation schedules, compliance review of IPO and limited offering allocations, and periodic statistical analysis to detect allocation patterns that correlate with fee structures. SEC examinations routinely test for this pattern by comparing allocation outcomes across fee types.

Common Pitfalls

• Relying on boilerplate or generic disclosure language rather than providing specific, quantified descriptions of conflicts and their financial impact
• Assuming that disclosure alone satisfies fiduciary duty — the mitigation hierarchy requires elimination or mitigation of conflicts where practicable, not just disclosure
• Failing to identify compensation-based conflicts embedded in revenue sharing, 12b-1 fees, and differential payout grids that are not visible to clients
• Ignoring the Reg BI elimination requirement for sales contests, quotas, bonuses, and non-cash compensation tied to specific securities or time-limited periods
• Permitting soft dollar payments for ineligible products or failing to make reasonable mixed-use allocations
• Overlooking pay-to-play exposure from covered associates' political contributions, including contributions made before the associate joined the firm that fall within the two-year look-back
• Treating the $100 FINRA gift limit as a firm-level policy when it applies per person per year and requires tracking across all associated persons
• Failing to enforce access person reporting deadlines (10-day initial, quarterly transaction, and annual holdings reports) or pre-clearance requirements for IPOs and limited offerings
• Not monitoring allocation patterns across performance-fee and flat-fee accounts for statistical evidence of cherry-picking
• Treating outside business activities as a disclosure-only obligation without assessing whether they create substantive conflicts that require mitigation

Cross-References

• reg-bi (Layer 9): Regulation Best Interest's four component obligations, including the Conflict of Interest Obligation that directly governs BD conflict management
• fiduciary-standards (Layer 9): The IA fiduciary framework — duty of care and duty of loyalty — that underlies all conflict-of-interest obligations for advisers
• fee-disclosure (Layer 9): Disclosure requirements for fees and compensation that intersect with conflict identification and communication
• sales-practices (Layer 9): Suitability, churning, and selling-away rules that address conduct flowing from unmanaged conflicts
• client-disclosures (Layer 9): Form ADV, Form CRS, and other disclosure documents that serve as the primary vehicles for communicating conflicts to clients
• investment-suitability (Layer 9): Suitability and best interest analysis that must account for conflicts when evaluating whether a recommendation is appropriate