conflicts-of-interest

Conflicts of Interest

Regulatory status current as of June 2026 — verify effective dates, dollar thresholds, and pending rulemakings against current SEC/FINRA/FinCEN sources before advising.

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.