CFP Board Investigations and Disciplinary Hearings
Attorney David S. Rich has substantial experience representing CFP® professionals and executives, that is professionals holding Certified Financial Planner certification, in disciplinary investigations brought by, and disciplinary hearings before, the Certified Financial Planner Board of Standards (“CFP Board”).
Law Offices of David S. Rich represents brokers, financial advisors, and other certified financial planners (“CFP® professionals”) in all stages of the process: (1) drafting the required, signed statements in response to the allegations; (2) researching the CFP Board’s Sanction Guidelines and published decisions of the CFP Board’s Disciplinary and Ethics Commission to develop legal defenses and to identify mitigating circumstances; (3) negotiating settlements through Offers of Settlement; (4) answering disciplinary complaints; (5) making pre-hearing motions; and (6) litigating CFP Board disciplinary hearings.
How CFP Board Notices of Investigation Arise
A CFP Board staff attorney prepares and sends, to the broker, financial advisor, or another certified financial planner, a notice of investigation stating that the CFP Board is investigating the CFP® professional and stating the general nature of the allegations made against the professional.
The CFP Board’s notice of investigation asks the broker, advisor, or other certified financial planner to provide a signed, written statement about potential violations of the CFP Board’s Code of Ethics and Professional Responsibility or the CFP Board’s Rules of Conduct, possible failures to comply with the CFP Board’s Financial Planning Practice Standards, potential violations of securities laws or rules or criminal laws, or other possible professional misconduct.
Further, the CFP Board’s inquiry letter typically asks the CFP® professional to answer a list of particular questions and to provide copies of all correspondence or memoranda referring to the matter.
The CFP Board makes these requests under Rule 6.2 of the CFP Board’s Disciplinary Rules and Procedures, which requires certified financial planners to provide information and records.
Flouting the CFP Board’s requests for information or books and records results in a significant penalty, such as a private written censure. Further, failure to provide the information requested by the CFP Board may give rise to an adverse inference concerning the alleged misconduct. So, too, disregarding the CFP Board’s requests for information or records will result in a referral of the matter to the Disciplinary and Ethics Commission for further action.
Should a CFP® Professional Retain a Lawyer to Represent Them in Disciplinary Investigations Brought by the CFP Board?
In the view of Attorney David S. Rich, CFP® professionals who are facing disciplinary investigations or hearings before the CFP Board should, “strongly consider retaining a specialized professional disciplinary lawyer”.
The CFP Board’s Handbook for Respondents makes several critical admissions every CFP® professional should consider:
- No Attorney-Client Relationship: The CFP Board’s Handbook explicitly states that neither Enforcement Counsel nor the DEC Counsel acts as the CFP® professional’s lawyer.
- No Legal Guidance: While Enforcement Counsel may discuss procedural aspects of the Complaint, Answer, and Hearing, they are strictly prohibited from providing the CFP® professional with any legal advice.
- Opposing Interests: The CFP Board’s Handbook warns that Enforcement Counsel works solely in the interest of the CFP Board, and is often required to take positions before the Disciplinary and Ethics Commission that are directly adverse to the CFP® professional’s interests.
Given that the CFP Board’s counsel is effectively your adversary in these proceedings, having your own dedicated advocate is essential.
Attorney David S. Rich is experienced in representing CFP® professionals in disciplinary investigations and actions. If you are a broker, financial advisor, or other certified financial planner and you have received a notice of investigation from the CFP Board, contact Law Offices of David S. Rich today.
Circumstances in Which the CFP Board Issues Notices of Investigation
The CFP Board issues notices of investigation in various circumstances. Three common scenarios are:
- Form U-5 (Uniform Termination Notice for Securities Industry Registration): A document that brokerage firms must complete and file with securities regulators to report the cessation of a broker’s employment. On the Form U-5, the brokerage firm must set forth the reason for the broker’s termination and whether the broker voluntarily left, was permitted to resign, or was fired. When the brokerage firm alleges on the Form U-5 that a broker who holds CFP certification quit, was fired, or was permitted to resign after being accused of (1) violating investment-related statutes, regulations, rules, or industry standards of conduct, (2) fraud or wrongful taking of property, or (3) failure to supervise, the CFP Board may dispatch a notice of investigation to the broker asking for a signed, written statement replying to the firm’s allegations.
- Customer Arbitrations and Regulatory Actions. Customer arbitrations are before the Financial Industry Regulatory Authority (“FINRA”) between investors, brokers, or brokerage firms. In a customer arbitration, the investor may allege that his broker and/or his brokerage firm converted the customer’s monies, engaged in churning, made unsuitable investments, committed fraud, made misrepresentations, engaged in unauthorized trading, failed to execute the customer’s orders, or perpetrated other misconduct. When a broker with CFP certification is named as a respondent in a customer arbitration, the CFP board may issue a notice of investigation to the broker.
When a broker who holds CFP certification is made a respondent or a defendant in a regulatory action that has been initiated by a government agency or officers such as the SEC, Commodity Futures Trading Commission, a state securities regulator, a state attorney general, or a foreign financial regulatory authority, the CFP Board may formally present a notice of investigation to the broker.
- Grievances. When an individual customer or client of a CFP® professional, who believes they have been the victim of professional misconduct, submits, to the CFP Board, a written complaint against the CFP® professional, the CFP Board will issue a notice of investigation to the professional.
Law Offices of David S. Rich skillfully prepares, on behalf of brokers, financial advisors, and other certified financial planners, written statements responding to the CFP Board’s notices of investigation. Even if the CFP® professional has committed the charged violations of the Code of Ethics, the Rules of Conduct, securities laws or rules or the like, CFP Board Disciplinary Hearings Attorney David S. Rich may be able to bring out mitigating circumstances and negotiate a favorable settlement.
Informal Disciplinary Actions
In addition to propounding the notice of investigation, the CFP Board may issue additional requests for information and documents to the broker, financial advisor, or another certified financial planner.
At the close of the CFP Board’s investigation, the CFP Board staff attorney analyzes the written complaint (if any) by the CFP professional’s customer or client, the CFP® professional’s written response to the CFP Board’s notices of investigation, and the law in order to determine whether there is probable cause to believe grounds for discipline exist.
If probable cause is lacking, the CFP Board staff attorney will dismiss the allegations.
If the CFP Board staff attorney determines that the CFP® professional may have violated the Code of Ethics or Rules of Conduct and/or failed to comply with Practice Standards, but that that that CFP® professional’s conduct does not warrant referral to the Disciplinary and Ethics Commission, the matter may be resolved with an informal disciplinary action, such as the issuance of a letter of caution.
A letter of caution may be appropriate where, for example, the violation is minor and there is no customer harm or detrimental market impact.
An informal disciplinary action is not publicly reported. It is a private admonishment that the CFP Board believes the CFP® professional has violated the Code of Ethics or the Rules of Conduct or has neglected to comply with Practice Standards.
CFP Board Disciplinary Hearings
In more severe cases, the CFP Board staff attorney may prepare a formal complaint against the CFP professional. This formal complaint begins a process that, absent a settlement, leads to a disciplinary hearing before a hearing panel of three members, two of whom must be CFP® professionals.
Sanctions following a disciplinary hearing may include: suspension or revocation of the right to use the Certified Financial Planner marks, a private written censure, or a public letter of warning.
Further, the broker, financial advisor, or another certified financial planner will be required to inform their present clients of any CFP Board suspension or revocation. Consequently, a suspension or revocation could ruin a CFP professional financially.
The CFP Board staff attorney serves a formal complaint against the CFP® professional. The respondent broker files an answer to the legal complaint.
Most formal disciplinary actions settle before the disciplinary hearing by issuing a settlement agreement called an Offer of Settlement. An Offer of Settlement is a document available to the public which sets forth the CFP Board’s findings of fact and the sanctions imposed.
The CFP® professional and the CFP Board staff attorney negotiate the Offer of Settlement. However, the hearing panel and the Disciplinary and Ethics Commission successively must approve the Offer of Settlement.
If the CFP® professional cannot settle, then the CFP professional and the CFP Board’s outside counsel try the case, before a hearing panel, at a disciplinary hearing.
At a disciplinary hearing, the professional has the right to appear and testify at the hearing, to call and question witnesses, to cross-examine the CFP Board’s witnesses, and to present evidence and argument on their behalf.
After the hearing, the hearing panel convenes and makes its findings of fact and recommendations to the Disciplinary and Ethics Commission. The Disciplinary Commission reviews the hearing panel’s findings of fact and recommendations and either accepts the offer, or remands the matter back to the hearing panel for further consideration. The CFP professional has certain rights to appeal any adverse order of the Disciplinary and Ethics Commission.
On behalf of brokers, financial advisors, and other certified financial planners, Law Offices of David S. Rich skillfully negotiates settlements of formal disciplinary actions with CFP Board staff attorneys. When a settlement cannot be reached, CFP Board Disciplinary Hearings Attorney David S. Rich aggressively defends CFP® professionals in disciplinary hearings before hearing panels.
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