Standard IV (A) – Loyalty

In matters related to their employment, Members and Candidates must act for the benefit of their employer and not deprive their employer of the advantage of their skills and abilities, divulge confidential information, or otherwise cause harm to their employer.

Members and Candidates must not engage in any activity that would injure the firm, deprive it of profit, or deny it of a Member or Candidate’s skills and abilities. Members and Candidates must always put the interests of their clients before their employers.

However, Standard IV(A) does not require Members or Candidates to put their employer’s interests before their own in all instances. Members and Candidates should enter discussions with their employer about balancing personal and work responsibilities, especially if there is a noticeable conflict.

Employer Responsibilities

Employers owe various duties and responsibilities to their employees. Members and Candidates are encouraged to share a copy of the Code and Standards to their employers. This information will educate employers about the responsibilities and ethical practices followed by a Member or Candidate. Additionally, the Code and Standards serve as a reference for questioning employer policies and practices.

Independent Practice

Members and Candidates are prohibited from engaging in independent activity that competes with their employer’s business. Members and Candidates are permitted to start or enter a business while employed.

Members and Candidates who plan to engage in independent practice for compensation must notify their employer of the:

• Types of services they plan to offer;
• Duration of the services; and
• Compensation.

Members and Candidates should not render any services until they receive consent from their employer.

Leaving an Employer

Members and Candidates must serve in the best interest of their employer even if they are due to leave the firm. Members and Candidates must refrain from engaging in activities that would conflict with the duty of loyalty to their current employers.

Actions permitted by a former or departing employee include:

• Making arrangements to enter a competitive business or firm before terminating their contract.
• Using the skills and experience gained at their previous firm.
• Contacting clients of their previous firm after leaving his or her employer if there is no “non-compete” in place.
• Using public information to contact former clients.

Actions prohibited by a former or departing employee include:

• Soliciting existing or potential clients before leaving his or her employer.
• The use or removal of work (in electronic or physical) performed for the employer.
• Violating an enforceable non-compete.

Use of Social Media

Members and Candidates should understand and comply with their firm’s policies regarding acceptable social media communication with current and prospective clients. This is particularly relevant when the communication concerns leaving their current employer. The best practice is for Members and Candidates to have separate accounts for their personal and professional activities.

Whistleblowing

Protecting the integrity of capital markets and the interests of each client is paramount. There may be instances in which a Member or Candidate may need to violate the duty to employers in order to act in the best interest of capital markets and their clients. Actions that violate a Member or Candidate’s duty of loyalty are only permitted if the intent is to protect clients or the integrity of capital markets.

Nature of Employment

Standard IV(A) – Loyalty applies to all employees. Members and Candidates should determine whether they are employees or independent contractors to determine the applicability of the standard. The nature of employment will be largely determined by the degree of control that the employer has over the employee. The duties of a Member or Candidate, in an independent contractor role, will be dictated by the written or oral agreement set by their employer.

Compliance Recommendations

Competition Policy

Members and Candidates should be aware of any prohibitions set by their employers on engaging in similar services outside the firm. Members and Candidates should ensure that details of a non-compete agreement are fully understood.

Termination Policy

Members and Candidates should understand the termination policies of their employers. Termination policies should include procedures on resignation, communication to clients and staff regarding termination, and practices for transferring current work responsibilities.

Incident-reporting Procedures

Members and Candidates should be aware of their firm’s whistleblowing procedures and encourage their firms to adopt industry best practices.

Employee Classification

Members and Candidates should understand their position in the firm. Firms are encouraged to develop employee classification hierarchies.

Application 1: Soliciting Former Clients

Judy Francis is an investment manager for several high-net-worth individuals. She is frustrated by the working environment at EY Partners. Francis has notified her employer of her intentions to leave the firm. Before her termination comes into effect, Francis asks two of her biggest clients to move to her new employer Lynx Capital. Her clients decline and maintain their relationship with her former employer.

After joining Lynx Capital, she contacts prospective clients that EY Partners was soliciting, and she manages to get these clients to sign with Lynx. Additionally, she gets in touch with current EY Partners clients using publicly available information. Francis had not signed a non-compete agreement when she was employed at EY Partners.

Which of Francis’ actions most likely violate Standard IV(A) – Loyalty?

      A. Soliciting clients at EY Partners before her termination was in effect.

      B. Signing EY Partners’ prospective clients after joining her new firm.

      C. Contacting EY Partners’ current clients using publicly available information.

Solution

The correct answer is A.

Francis has violated Standard IV – Loyalty by soliciting clients before leaving her former employer. Her actions are not in the best interest of her employer. Francis is allowed to contact her former clients and her former employer’s prospective clients, provided she did not sign a non-compete.

Application 2: Ownership of Completed Prior Work

Zachariah Davis has recently completed an unpaid internship at Zane Brokers. During his internship, he worked on automating trading reporting procedures. His work involved developing and improving existing code. Davis has been hired as a trading assistant at a different brokerage firm. His primary task is to establish reporting procedures, similar to the work he did at Zane Brokers.

Which of Davis’ potential actions would least likely violate Standard IV(A) – Loyalty?

      A. Copying the code he used at Zane without permission.

      B. Using his experiences and knowledge at Zane to recreate the code at his new employer with minor tweaks to fit his new employer’s needs.

      C. None of the above.

Solution

The correct answer is B.

Davis is permitted to use the experience and knowledge gained during his internship at his new employer.

However, any work produced during his internship belongs to his employer. Using a copy of the code without permission from his former employer would be a violation.

Note: The internship being unpaid is not relevant; Davis presumably used company resources to develop the work product.

Application 3: Starting a New Firm

Craig Fisher currently works at Generous Finance – an impact investing fund. He is planning to start a firm with his business partner. They have recently made an application to secure a brokerage license to the relevant regulatory authorities. Fisher has not notified his employer about his intentions of starting his own firm. Neither Fisher nor his partner has solicited any clients at their current employers.

Has Fisher violated Standard IV(A) – Loyalty?

     A. No.

     B. Yes, because he has not notified his current employer about starting his firm.

     C. Yes, because he is not allowed to take steps in setting up his firm before leaving his employer.

Solution

The correct answer is A.

Fisher has not violated Standard IV(A) – Loyalty. His preparations in setting up his firm do not conflict with his current obligations at his current employer. Fisher could potentially violate Standard IV(A) if he made the preparations during office hours or at his employer’s expense.

Application 4: Soliciting Former Clients

Gary Clark has recently joined Axe Corporation. Clark did not sign a non-compete at his previous firm. He retrieves a copy of a client list on his personal laptop and contacts several of his former clients.

Are any of Clark’s actions in conflict with Standard IV(A) – Loyalty?

    A. Yes, he is not allowed to solicit clients at his former employer.

    B. Yes, contacting clients from a client list obtained from his previous employer is prohibited.

    C. No.

Solution

The correct answer is B.

Clark has violated Standard IV – Loyalty by soliciting former clients through the use of a client list. Standard IV(A) does not prohibit former employees from contacting clients at their previous firm. A Member or Candidate is not allowed to contact clients through the use of a client list or any other material obtained from a previous employer.

Reading 46: Guidance for The Standards of Professional Conduct (I-VII)

LOS 46 (a) Demonstrate a thorough knowledge of the CFA Institute Code of Ethics and Standards of Professional Conduct by applying the Code and Standards to specific situations.