Can an attorney be liable for the negligent referral of a client to a “rogue stockbroker”, or in the Thanksgiving spirit, a turkey broker?[1]  If an attorney chooses to refer a client to a stockbroker[2], what are the best practices prior to making the referral?[3]  Given the absence of New York case law addressing an attorney’s liability for the negligent referral to a “rogue stockbroker”[4], best practices dictate that at a minimum, an attorney should exercise reasonable care in investigating the stockbroker’s background.  The attorney must also be extraordinarily careful regarding the nature of the referral to the stockbroker.  Initially, it may be best to determine if the person one is referring to is a stockbroker and/or an investment advisor.  Generally, stockbrokers charge commissions per transaction, whereas investment advisors charge fees based on percentages of assets under management.  Some individuals are both stockbrokers and investment advisors.

 

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[1] See De La Bere v. Pearson, Limited, 1 KB 280 (1907).

[2] Under New York law, a stockbroker, or someone holding a Series 7 FINRA license, is referred to as a “salesman.”  See NY CLS Gen. Bus. §359-e(2012).  FINRA refers to the same Series 7 licensed individual as a “representative”.  See FINRA Rule 1031(b).  For statute of limitations purposes, stockbrokers and financial advisors are not “professionals”.  Ironshore Insurance Ltd. v. Western Asset Management Company, 2012 U.S. Dist. LEXIS 76818 (S.D.N.Y. May 30, 2012).

[3] This article does not address an attorney’s best practices when referring to investment advisors, certified financial planners, or trust officers, unless those individuals also maintain Series 7 licenses.  These entities are distinct and warrant different considerations.

[4] The phrase “rogue stockbroker” is not defined.  However, in a 1996 speech, Mary L. Schapiro, the current Chairperson of the SEC, stated, “we are focusing on innovative ways to deal with the problem of rogue brokers, heightened supervision of these brokers, and inadequate supervision of all brokers by firms.”