Law enforcement discretionary authority investing
We note that you are not required to adopt a particular standard of business ethics. Rather, the standard that you choose should reflect your fiduciary obligations to your advisory clients and the fiduciary obligations of the people you supervise, and require compliance with the federal securities laws. In adopting a code of ethics, investment advisers may set higher ethical standards than the requirements under the law.
Your access persons must submit a complete report of the securities that they hold at the time they first become an access person, and then at least once each year after that. Your CCO or another person you designate in addition to your CCO must review these personal securities transaction reports. Your supervised persons must promptly report violations of your code of ethics i. You must also maintain a record of these breaches. Also, as a registered investment adviser, you are required to establish, maintain, and enforce written policies and procedures that are reasonably designed to prevent the misuse of material non-public information under Section A of the Advisers Act.
These policies and procedures must encompass your activities and those of your supervised persons. Advisers often include this prohibition on insider trading in their code of ethics. In addition, you must describe your code of ethics in your Form ADV, Part 2 , Item 11 and provide a copy to your advisory clients, if they request it.
The books and records that you must make and keep are quite specific, and are described below in part: Advisory business financial and accounting records, including: cash receipts and disbursements journals; income and expense account ledgers; checkbooks; bank account statements; advisory business bills; and financial statements.
Records that document your authority to conduct business in client accounts, including: a list of accounts in which you have discretionary authority; documentation granting you discretionary authority; and written agreements with clients, such as advisory contracts. Advertising and performance records, including: newsletters; articles; and computational worksheets demonstrating performance returns. Records related to the Code of Ethics Rule, including those addressing personal securities transaction reporting by access persons.
Records regarding the maintenance and delivery of your written disclosure document and disclosure documents provided by certain solicitors who seek clients on your behalf. Policies and procedures adopted and implemented under the Compliance Rule, including any documentation prepared in the course of your annual review. Some advisers are required to maintain additional records. You must keep these records for specified periods of time.
Generally, most books and records must be kept for five years from the last day of the fiscal year in which the last entry was made on the document or the document was disseminated. You may be required to keep certain records for longer periods, such as records that support performance calculations used in advertisements as described in Rule , paragraph e. You are required to keep your records in an easily accessible location. In addition, for the first two of these years, you must keep your records in your office s.
If you maintain some of your original books and records somewhere other than your principal office and place of business, you must note this practice and identify the alternative location on your Form ADV in Section 1K of Schedule D. Many advisers store duplicate copies of their advisory records in a location separate from their principal office in order to ensure the continuity of their business in the case of a disaster.
You may store your original books and records by using either micrographic media or electronic media. These media generally include microfilm or digital formats e. If you use email or instant messaging to make and keep the records that are required under the Advisers Act, you should keep the email, including all attachments that are required records, as examiners may request a copy of the complete record. In dealing with electronic records, you must also take precautions to ensure that they are secure from unauthorized access and theft or unintended destruction similar safeguarding provisions regarding client information obtained by you is required by Regulation S-P under the Gramm-Leach-Bliley Act.
In general, you should be able to promptly generally within 24 hours produce required electronic records that may be requested by the SEC staff, including email. In order to do so, the Advisers Act requires that you arrange and index required electronic records in a way that permits easy location, access, and retrieval of any particular electronic record. You are not obligated to get the lowest possible commission cost, but rather, you should determine whether the transaction represents the best qualitative execution for your clients.
In addition, whenever trading may create a conflicting interest between you and your clients, you have an obligation, before engaging in the activity, to obtain the informed consent from your clients after providing full and fair disclosure of all material facts. The Commission has described the requirement for advisers to seek best execution in various situations. You may determine that it is reasonable for your clients to pay commission rates that are higher than the lowest commission rate available in order to obtain certain products or services from a broker-dealer i.
The SEC staff has also said that, if you decide not to aggregate orders for client accounts, you should disclose to your clients that you will not aggregate and the potential consequences of not aggregating orders. If your clients impose limitations on how you will execute securities transactions on their behalf, such as by directing you to exclusively use a specific broker-dealer to execute their securities transactions, you have an obligation to fully disclose the effects of these limitations to the client.
For example, you must obtain advance written authorization from the client to execute such transactions, and also provide clients with specific written disclosures. Compliance with Rule 3 -2 is generally not required for transactions internally crossed or effected between two or more clients you advise and for which you receive no additional compensation i. Your advisory contracts whether oral or written must convey that the advisory services that you provide to the client may not be assigned by you to any other person without the prior consent of the client.
The purpose of SEC examinations is to protect investors by determining whether registered firms are complying with the law, adhering to the disclosures that they have provided to their clients, and maintaining appropriate compliance programs to ensure compliance with the law. If you are examined, you are required to provide examiners with access to all requested advisory records that you maintain under certain conditions, documents may remain private under the attorney-client privilege.
If you vote proxies on behalf of your clients, you must also retain certain records. Requirements for Investment Advisers that Advertise their Services To protect investors, the SEC prohibits certain types of advertising practices by advisers. An advertisement could include both a written publication such as a website, newsletter or marketing brochure as well as oral communications such as an announcement made on radio or television. Advertising must not be false or misleading and must not contain any untrue statement of a material fact.
Advertising, like all statements made to advisory clients and prospective clients, is subject to the general prohibition on fraud Section as well as other anti-fraud provisions under the federal securities laws. Specifically prohibited are: testimonials; the use of past specific recommendations that were profitable, unless the adviser includes a list of all recommendations made during the past year; a representation that any graph, chart, or formula can in and of itself be used to determine which securities to buy or sell; and advertisements stating that any report, analysis, or service is free, unless it really is free.
The SEC staff has said that, if you advertise your past investment performance record, you should disclose all material facts necessary to avoid any unwarranted inference. A bond or minimum net capital. Providing any state-specific forms required. Filing a Form U-4 application for each investment adviser representative who will provide services on behalf of the investment adviser. Passing score on a competency examination or holding a qualified professional designation.
Remitting all required fees for the investment adviser and the investment adviser representative s. Securities and Exchange Commission. Payment of any required notice filing fees. In many states, the term is from January 1 to December 31 of a given year. However, some states have different renewal dates. Check with the state securities office in each state where you intend to do business.
States send out a notice to renew a registration or license some time in advance of the end of the year. Check with each state for specific details. The renewal process for investment advisers will be handled via IARD. Recordkeeping An adviser is required generally to maintain and keep current the records listed below.
Additional recordkeeping requirements may also be set by the home state of the adviser. It will be necessary to check with the home state regulator. Records generally required of all state-registered investment advisers pursuant to individual state securities statutes and regulations: Receipts and Disbursements Journals.
JULIAN WONG FOREX CARGO
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