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Is Self-Promotion a Fiduciary Act?

While much of the discussion around the implementation of the fiduciary regulation has centered on investment recommendations, what about an advisor recommending his or her own services?

A recent blog post by noted ERISA attorney Fred Reish notes that, effective April 10, 2017, the recommendation of almost any investment or insurance product to a plan, a participant or an IRA owner will be a fiduciary act, and that a fiduciary recommendation includes a referral to a fiduciary investment adviser or manager. That means, according to Reish, that since almost all advisers to plans, participants and IRA owners will be fiduciaries, virtually any compensated referral to an adviser will be a fiduciary act under the regulation.

But what if an adviser recommends himself or herself?

Reish explains that the Department of Labor (DOL) has created the concept of “hire me,” explaining that touting one’s own advisory services (as opposed to products or strategies) is not a fiduciary act. He goes on to note that in the preamble to the fiduciary advice regulation the DOL said:

It was not the intent of the Department, however, that one could become a fiduciary merely by engaging in the normal activity of marketing oneself or an affiliate as a potential fiduciary to be selected by a plan fiduciary or IRA owner, without making an investment recommendation covered by (a)(1)(i) or (ii).

Accordingly, a person or firm can tout the quality of his, her, or its own advisory or investment management services or those of any other person known by the investor to be, or fairly identified by the adviser as, an affiliate, without triggering fiduciary obligations.


Reish does, however, caution that advisers should be careful in using this approach. “While it’s not fiduciary advice to explain one’s services and fees, if the discussion also includes the recommendation of a particular investment or strategy (or a rollover), that’s fiduciary advice,” he says.