All advisers registered with the SEC must adopt and enforce a written code of ethics reflecting the adviser’s fiduciary duties to its clients. The firm’s code of ethics is required to meet minimum standards to appropriately address conflicts of interest identified by the firm. To ensure compliance with the code of ethics requirements, a written acknowledgement should be obtained from each supervised person confirming receipt of the firm’s code of ethics. Firms with more than one access person are should also ensure transaction reporting is being done by all access persons.
Outside Business Activities (“OBAs”) of individuals can create potential conflicts of interests with the registered investment advisers that employ them. Advisors are responsible for providing written notice before they act as an employee, independent contractor, sole proprietor, officer, director or partner of another person; or receive compensation or have the expectation of compensation from any other person as a result of any business activity outside the scope of the relationship with their registered investment adviser.
Additionally, this includes situations where compensation is to be paid or if there is a reasonable expectation of compensation as a result of any business activity outside the scope of the relationship with his or her firm. Passive investments are exempted from this requirement. To ensure all individuals are compliant with OBA requirements, make sure your firm reviews the following.
Registered investment advisers (“RIAs”) should ensure training is assigned periodically to keep covered persons up to date on industry and product related topics. In planning, developing, and implementing an RIA’s training plan, firms should consider its size, structure, and the scope of its business activities, as well as any regulatory developments. After training is assigned, it is important to follow up to ensure completion by all assigned individuals.
Investment advisers should consider the need to perform a branch office inspection of branch offices pursuant to a branch office inspection schedule. Firms should consider whether a branch audit is warranted using factors such as nature and complexity of the branch’s business, volume of business, complaints, disclosures, number of registered persons, and other relevant factors determined by the firm. Firms are to document the exam schedules for each branch office including a description of the factors used to determine the exam cycle for such locations.
Various states require investment advisers to conduct regular inspections of their branch offices. For example, an investment adviser registered in Georgia is required to inspect each office location at least annually to ensure that its written policies and procedures are enforced. Even when an investment adviser is not explicitly required to conduct branch inspections, it should still implement a branch inspection program as part of its supervisory procedures. Also, investment advisers lacking an adequate branch office inspection program expose themselves to significant liability for failure to supervise in the event misconduct at the branch goes undetected.
When a registered investment adviser on boards a new registered person, there are a couple of new hire forms the firm needs to collect to be compliant with applicable securities laws and regulations.
To evidence completion of new hire forms by all associated persons, firms should adopt and implement written policies and procedures reasonably designed to prevent violations. Implementation of procedures will often rely on the use of forms and other documents designed to gather or report important data. While the completion of some forms is required by law or regulation, the implementation of other forms reflects principles of good management and controls. Regulators view the adequacy of procedures and the proper completion of forms as indicators of a culture of compliance within the firm. Consequently, firms should periodically verify the adequacy of their policies, procedures, and controls related to new hire forms.
Firms will use a wide range of customized forms and attestations to help them achieve compliance with applicable securities laws and regulations. Firms should periodically assess how it can enhance its compliance program and better supervise employees through the use of new or improved forms, reports, acknowledgments, or attestations.
Form ADV Part 2B is a brochure supplement that must contain certain information about specific individuals, acting on behalf of the investment adviser, who actually provide the investment advice and interact with the client. The brochure supplement is also a narrative format in plain English and includes six required disclosure categories, with a seventh for advisers registered or are registering with one or more state securities authorities: