Yes, advisors can use Linkedin, they can blog, and they can even tweet on Twitter. Whether you’re a register rep or an IA rep, you can network online with friends and prospects, but you do have to follow the same compliance rules that govern other advertising materials.
To prepare for a webinar about compliance issues posed by social networking sites, the subject of this Friday’s Financial Crisis Webinar, I interviewed Brian Hamburger and Dan Bernstein of MarketCounsel, a compliance consulting firm serving independent advisors nationwide. (The 4 p.m. webinar on Friday is free but you must register to attend.) Below are some of what these experts said.
With regard to Twitter:
When an IA rep uses Twitter to send a link to an article from an online magazine, newspaper, or other site to clients and prospects "following" him, that communication is subject to SEC advertising rules. However, Bernstein says that merely sending a link is not advertising—as long as you don’t give your opinion.
· If a rep sends links to articles, however, it could be deemed advertising, which means some broker/dealers may require pre-approval of a tweet with a link. It depends on your BD. Many BDs allow reps to re-circulate articles. Most BDs will permit it, so long as the rep does not add content. Your BD may require you to print it out and retain each tweet in hard copy.
· IA reps have it a easier than registered reps. There is no preapproval required of IAs in any of the SEC rules.
On the topic of blogging:
· Yes, advisors can write blogs. Twitter is a microblog. However, a blog is like any other communication, and a rep needs it pre-approved, which makes blogging difficult.
· Some BDs regulations do not allow blogs. But it is a manpower issue and cost issue.
· Blogging is easier for IA reps because they do not need pre-approval of the material.
· A blog from an IA rep can discuss typical clients and situations that are hypothetical. You can “make up” a client and talk about his issues and problems and how you solved them—as long as you disclose that these are hypothetical abstracts and not real situations.
· Blogging about the economy, financial planning, or market commentary is less likely to pose compliance problems, but market commentary must avoid predictions.
· Commenting on your blog is permissible. But any commenting should be screened, so that you can take down a comment or edit it.
· You must be able to remove blog comments that are testimonials from clients.
If an advisor is using Linkedin:
· A "recommendation" on your Linkedin profile by a client does indeed constitute a testimonial and, thus, violates SEC rules prohibiting RIAs from using client testimonials in advertising.
· If a client writes a recommendation praising you as a moral or religious person, it will be construed as a testimonial—even if it does not address your skills as a professional investor.
· The testimonial prohibition is commonly thought to pertain specifically to clients. There is not a lot of guidance about using testimonials from non-clients. But the fact that there has not been many enforcement actions for using testimonials by non-clients indicates that using testimonials from non-clients may be within SEC rules. But the SEC may ask you to remove such recommendations from Linkedin. For instance, if you are on the board of directors at your church or synagogue, another board member could write a recommendation for you in your capacity as a board member and that would probably not be construed as a violation of the rules.
Because social networking is so new, there is no body of enforcement actions and rulings that you can reference. The SEC will be busy in coming months addressing the many issues posed by advisor use of social media .