How Financial Advisors Can Protect Themselves Against Lawsuits

Don’t churn. Avoid unauthorized trading. Don’t forge documents. Don’t give false or misleading information. Preserve client confidentiality. Above all, don’t steal or “borrow” your clients’ money. These practices are all standard protocols for financial advisors. However, there are less obvious guidelines you need to adhere to so you can avoid getting sued as a financial advisor.

In 2019, the Financial Industry Regulatory Authority (FINRA) received 2,954 investor complaints. In 2020, this number had grown to over 5,400. As investors become more educated and processes become more transparent, it’s never been a more important time to ensure your practices are protecting you and your firm from lawsuits. Consider these tips to avoid becoming a cautionary tale about what not to do as a financial advisor.

Get the Full Picture

As an investment advisor, you have a fiduciary duty to act in your clients’ best interests, to put their interests above your own, and to give advice based on complete and accurate information. You get complete and accurate information from a client through interviews, questionnaires, records, and documents including tax returns and bank statements. If they give you incomplete or inaccurate information, you may offer them incorrect or inaccurate financial advise.

The Certified Financial Planner Board’s Practice Standards say that advisors who cannot get the information they need shall either “restrict the scope of the engagement to those matters for which sufficient and relevant information is available; or terminate the engagement.” Even if you aren’t a CFP, this is a valid position to take.

Clients may be embarrassed about their financial position or circumstances on how they came about their money. It may be easier to encourage clients to disclose this private information if you remind them that financial advisors operate under a strict client confidentiality agreement.

If you are a CFP® , this obligation is even more explicit and must be stated in writing. The best way to provide impeccable service and keep clients happy is to know as much as possible about their finances and about the aspects of their personal and business lives that affect their finances.

Provide Complete and Accurate Professional Disclosures

Just as you expect your clients to disclose certain information to you, they expect you to disclose certain information to them. Not only that, but federal and state regulations require investment advisors to disclose all the information a client needs to make an informed decision about working with a professional and taking his or her advice.

Clients need to know about any past, present, or potential future conflicts of interest, the risks involved in the methods you use to determine an investment’s suitability, and any unusual risks posed by a particular investment or strategy you might recommend. They also need to know if you’ve been disciplined or sued in the past.

All of this information and more should be compiled in a detailed document for your client per the brochure rule (or a similar state-level rule if you’re regulated at the state rather than the federal level). Provide a copy to each client and ask them to sign a form stating that they’ve received it and reviewed it, and keep everything in your records. Besides meeting your legal requirements, by providing this information to clients upfront, you can reduce your risk of being sued and present a stronger defense if you are sued.

Keep Client Information Safe from Cyber Attacks

Keeping your clients’ information safe from cyber-attacks is critical. Financial advisors are natural targets for hackers because they manage large amounts of money and a variety of people’s personal information. As an advisor, it is your duty to be diligent about checking the security of all your third-party vendors.

You should also implement a strategy for how to respond in the event of a hack so that you can minimize the damage to your clients’. If you manage any employees, training them to follow best practices for keeping client information safe is crucial for maintaining the trust of your clients and the credibility of your practice.

Diligently Train and Supervise Your Employees

In addition to training employees about how to keep your clients’ information safe, your employees should be trained in best practices in all areas of client relationships. Diligently supervise all members of your business so you are in the loop about how they are handling client information and what kinds of investment recommendations they are making.

One way to prevent any major mistakes that might put you at risk is to have a lead or senior advisor sign off on any plans made or actions taken. Make sure that your employees are setting client expectations appropriately and not making any promises to clients that you can’t reasonably deliver on.

Avoid High-Risk Clients

You don’t have to take on every potential client who approaches you—and while you should not discriminate based on factors such as skin color or gender, you should always be selective. In an initial phone conversation or meeting, you might spot red flags in a prospective client. Perhaps they are not forthcoming about their financial situation, don’t want to review or complete paperwork, or show signs that another family member has too much influence over their finances.

You might not want to get involved with someone who seems reluctant to cooperate, has unreasonably high expectations, or may pressure you into committing unethical acts. Not only may these clients be difficult to work with, but your actions may also have company-wide implications that devastate your relationship with other clients.

Get the Right Insurance

Financial advisors need errors and omissions insurance to protect themselves against claims of negligence, breach of fiduciary duty or lack of regulatory compliance that clients might bring. By paying for your legal defense, regardless of your guilt, and by covering certain losses if you are found at fault, proper liability insurance can keep you from going out of business if you’re ever hit with a lawsuit. make sure your policy covers your employees, too. Cyber liability insurance can provide another layer of protection in the event of a breach of confidential data.

Educate and Listen to Your Clients

Do your clients understand investment risk and the possibility that the money they’re entrusting you to manage will not grow every year? Yes, you’ll provide a boilerplate disclosure about investment risks that you’ll ask clients to sign before you’ll work with them. It will explain that investing in securities involves the risk of losing capital, there is no such thing as a guaranteed investment, and that past performance does not guarantee future results.

Clients might just gloss over this disclosure before signing it, if they read it at all. They might also underestimate their own risk tolerance. That’s why rather than asking vague questions like “How much risk tolerance do you have?” it’s more helpful to ask questions like “How would you react if your retirement portfolio lost 25% of its value in one year? How would you feel, and would you want to sell some of your investments, do nothing, or buy?”

Keep in mind that clients who have never experienced such a scenario might overestimate how well they would handle it. It’s important to learn about their investment history and how past experiences with money have shaped their views. Just because a client has the financial capacity to absorb a certain level of risk doesn’t mean they have the psychological ability to.

It’s also helpful to provide clients with a basic level of investment education, even if your client wants to be as hands-off as possible. This helps them them understand your approach and your recommendations. If you’re signing up a new client in a bull market, don’t let the next bear market be the first time they get this information—make sure they’re educated and prepared for every aspect of financial markets.

Provide Investment Policy Statements to Your Clients

In addition to providing a basic level of investment education, you need your client to understand why you are recommending that they put their money in particular investments. In addition, if you’re recommending a specific asset allocation to help your client achieve their goals, they should understand the reasoning behind that recommendation.

In addition to explaining to client how their portfolio will be invested and why, you should provide a written investment policy statement reiterating that information. Require your client to sign off on the plan before you touch their money. Not only will you protect yourself, you’ll also be taking an important step to increase transparency and trust in your client-advisor relationship.

Don’t Help Clients Invest in Things They Don’t Understand

Maybe you have a great investment product or strategy that you think your client should adopt. You explain it to them, and they still seem confused. Maybe you give them some reading assignments for homework, but they still don’t get it. While you might be frustrated because you’re making a recommendation that you know is in their best interest, you should never push a client into an investment, strategy, or financial product that could later cause a client to feel cheated or misled. Those are two things that are likely to get you sued or to get a client to file a regulatory complaint against you.

That being said, while it may be easy to avoid investing a client’s money in something obviously unsuitable, it’s harder to know what to do when a client tells you they want to retire in 20 years but you know they won’t have a large enough nest egg to do that without investing in stocks—which they’re afraid to invest in. This is where education comes in: you may be able to gradually increase their risk tolerance by increasing their financial literacy. However, you can’t push them before they’re ready.

Check In Often

Provide regular, accurate and understandable account statements to your clients along with a written summary of what has changed since the last statement. Follow up to ask your client if they’ve reviewed the statement and if they have any questions. Ask them if their portfolio is performing in line with their expectations. By doing these things, you will stay on top of how your clients are feeling about their investments and about your advice. Being proactive in this way can help you get ahead of any problems.

More important, it makes you a good advisor who is genuinely engaged with clients. If you wait for clients to approach you, and if you assume their silence means everything is fine, you might have a problem brewing.

Checking in regularly also allows you to stay on top of adjusting your client’s portfolio and investment strategy as their life changes. It’s especially important to be aware of family, health and job changes.

Encourage Mediation

If a client threatens a lawsuit, and if you can’t resolve the problem on your own, propose mediation as a solution. Mediation is an informal, voluntary process, where a neutral third party will help you and your client find a mutually agreeable solution using a method that’s faster and cheaper than arbitration or litigation.

The FINRA mediation process has a great success rate of resolving four out of five cases. Assure your client that if they choose mediation, they don’t have to accept the settlement and they retain their right to arbitrate or litigate if the mediator can’t find a mutually satisfactory outcome.

The Bottom Line

Even the most conscientious advisor who gives careful attention to each and every client can get sued. The behavior of financial markets is beyond any advisor’s control, and when even the most soundly constructed portfolio loses money, a distressed customer may look for a scapegoat and a way to recoup their losses by calling a lawyer and looking for wrongdoing. Following the practices described above will minimize the chances that a client ever files a lawsuit against you.

Author’s note: Two Certified Financial Planners, Simon Brady and Paul Ruedi, Jr., contributed to this article.