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By the Office of Compliance Inspections and Examinations1

Volume III, Issue 1 March 4, 2013

Significant Deficiencies Involving Adviser Custody and 

Safety of Client Assets

One of the most critical rules under the Investment Advisers Act of 1940 

(“Advisers Act”) is the custody rule,2 which is designed to protect advisory 

clients from the misuse or misappropriation of their funds and securities. Yet, 

the SEC’s National Examination Program (“NEP”) has observed widespread and 

varied non-compliance with elements of the custody rule.3 The NEP reviewed 

recent examinations that contained significant deficiencies. Approximately onethird of them (over 140) included custody-related issues.

In this Risk Alert, the NEP staff shares the custody deficiencies observed, which 

we hope will assist investment advisers in complying with the custody rule. 

When the NEP staff identifies the risk priority areas to focus on during an 

examination of an adviser, it often includes a review of the adviser’s books and 

records, business, and operations as they relate to the safety of its clients’ assets. 

The findings from these examinations have resulted in a range of actions. These 

have included remedial measures taken by advisers, including among other 

things, drafting, amending or enhancing their written compliance procedures, 

policies, or processes; changing their business practices; or devoting more 

resources or attention to the area of custody. Moreover, the NEP has also made 

referrals to the SEC’s Division of Enforcement where appropriate. 

 1 The Securities and Exchange Commission (“SEC”), as a matter of policy, disclaims responsibility for any 

private publication or statement by any of its employees. The views expressed here are those of the staff of the 

Office of Compliance Inspections and Examinations, in coordination with other SEC staff, including staff in the 

Division of Enforcement’s Asset Management Unit and the Division of Investment Management, and do not 

necessarily reflect the views of the Commission or the other staff members of the SEC. This document was 

prepared by the SEC staff and is not legal advice.

2

 Rule 206(4)-2 under the Advisers Act, 17 CFR 275.206(4)-2, as amended.

3

 The rule was first adopted in 1962. See Adoption of Rule 206(4)-2 under the Investment Advisers Act of 1940, 

Investment Advisers Act Release No. 123 (Feb. 27, 1962), 27 FR 2149 (Mar. 6, 1962). Major amendments 

were made in 2003 and 2009. See Custody of Funds or Securities of Clients by Investment Advisers,

Investment Advisers Act Rel. 2176 (Sept. 25, 2003), 68 FR 56692 (Oct. 1, 2003); Custody of Funds or 

Securities by Investment Advisers, Investment Advisers Act Rel. 2968 (Dec. 30, 2009), 75 FR 1456 (Jan. 11, 

2010). The staff of the SEC’s Division of Investment Management has published responses to frequently asked 

questions about the custody rule, available at 

http://www.sec.gov/divisions/investment/custody_faq_030510.htm. 

In this Alert: 

Topic: NEP staff 

observations regarding 

ways in which advisers fail 

to comply with the Advisers 

Act custody rule.

Key Takeaways: Advisers 

should review their 

practices in light of the 

deficiencies noted in this 

Risk Alert and their 

responsibilities under the 

custody rule to protect 

client assets.
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Background of the Custody Rule

SEC-registered investment advisers with custody of client assets must comply with the custody 

rule. An adviser has custody if it or its related person holds, directly or indirectly, client funds or 

securities or has any authority to obtain possession of them.4 For example, an adviser that serves

as the general partner of a pooled investment vehicle (“PIV”)(or holds a comparable position) 

generally has custody of client assets because the position of general partner gives legal ownership 

or access to client funds and securities.5 The custody rule prescribes a number of requirements 

designed to enhance the safety of client assets by insulating them from any possible unlawful 

activities or financial reverses of the investment adviser, including insolvency.6 The custody rule’s 

key safeguards include:

• Use of “qualified custodians” to hold client assets. An adviser with custody generally must 

maintain client funds and securities at a qualified custodian (e.g., a bank or a brokerdealer), either in a separate account for the client under the client’s name or in an 

account under the adviser’s name as agent or trustee for the adviser’s clients that 

contains only client assets (i.e., client assets may not be commingled with the adviser’s

assets). 7 

• Notices to clients detailing how their assets are being held. An adviser that opens an 

account with a qualified custodian on the client’s behalf must notify the client in writing 

and provide the client with certain information.8

• Account statements for clients detailing their holdings. An adviser must have a 

reasonable basis, after due inquiry, for believing that the qualified custodian sends 

account statements to clients at least quarterly.9 

 4 Rule 206(4)-2(d)(2).

5 Rule 206(4)-2(d)(2)(iii).

6 See Adoption of Rule 206(4)-2 under the Investment Advisers Act of 1940, Investment Advisers Act Rel. 123 (Feb. 

27, 1962), 27 FR 2149 (Mar. 6, 1962). 

7 Rule 206(4)-2(a)(1). 

8 Rule 206(4)-2(a)(2). The client must be provided with the name and address of the qualified custodian and the 

manner in which the client funds or securities are being held. The adviser must promptly inform the client when the 

account is opened and following any change in this information.

9 Rule 206(4)-2(a)(3). See In re Gerasimowicz, Advisers Act Rel. 3464 (instituted Sept. 14, 2012)(administrative and 

cease-and-desist proceedings instituted against a registered adviser and its principal in connection with allegations of 

misappropriation of assets and repeatedly making material misrepresentations and omissions to clients). Among the 

charges in this case, in addition to fraud, were allegations that (1) the advisers and principal, not the custodian, sent 

quarterly statements to fund investors; (2) the adviser did not obtain an annual surprise examination; and (3) the 

principal and the adviser did not distribute annual audited financial statements, prepared in accordance with GAAP 

and audited by an independent public accountant that is registered with and subject to regular inspection by the 

Public Company Accounting Oversight Board (“PCAOB”), within 120 days of the end of fiscal year (thus failing to

satisfy the “audit approach” exception to the custody rule on which the adviser was purporting to rely).
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• Annual surprise exams. Advisers that have custody of client assets in many cases must 

undergo an annual surprise examination by an independent public accountant that 

verifies client funds and securities.10 

• Additional protections when a related qualified custodian is used. If the adviser’s related 

person (or the adviser itself) acts as the qualified custodian, then the annual surprise 

examination must be conducted by an independent accountant registered with, and 

subject to regular inspection by, the PCAOB, and the adviser must obtain from the 

accountant at least once each year a report of the internal controls relating to the 

custody of client assets.11

• The audit approach for advisers to pooled investment vehicles. With the “audit 

approach,” the adviser, at least annually, distributes audited financial statements to 

investors in the pooled investment vehicles. If using the “audit approach,” advisers to 

pooled investment vehicles do not have to comply with the notice and account 

statement delivery obligations of Rule 206(4)-2(a)(2) and (a)(3) and are deemed to 

have satisfied the surprise examination requirement of Rule 206(4)-2(a)(4).12

Deficiencies Identified

The custody-related deficiencies NEP staff observed can be grouped into four categories: failure by 

an adviser to recognize that it has “custody” as defined under the custody rule;13 failures to comply 

with the rule’s “surprise exam” requirement;14 failures to comply with the “qualified custodian” 

requirements;15 and failures to comply with the audit approach for pooled investment vehicles.16

 Failure By Advisers To Recognize They Have Custody

In its review, NEP staff observed the following situations where an adviser failed to recognize 

that it has custody under the rule:

 10 Rule 206(4)-2(a)(4). See also paragraphs (b)(3),(b)(4), and (b)(6) of Rule 206(4)-2. The independent accountant 

must file Form ADV-E in accordance with Rule 206(4)-2(a)(4) following a surprise examination. See also In re 

Gerasimowicz, supra note 10 (alleging adviser did not obtain an annual surprise examination under the custody rule

and failed to meet the “audit approach” exception to the surprise examination requirement).

11 Rule 206(4)-2(a)(6). 

12 Rule 206(4)-2(b)(4). 

13 Rule 206(4)-2(d)(2). As noted above, an adviser has custody if it or its related person holds, directly or indirectly, 

client funds or securities or has any authority to obtain possession of them. As one example, an adviser who serves

as the general partner (or holds a comparable position) to a pooled investment vehicle has custody of client 

funds/securities. 

14 Rule 206(4)-2(a)(4). See “Annual surprise exams” above. 

15 The term “qualified custodian” is defined in Rule 206(4)-2(d)(6) to mean certain banks and savings associations, 

broker-dealers registered with the SEC, futures commission merchants registered with the Commodity Futures 

Trading Commission, and foreign financial institutions that meet certain criteria. See “Use of ‘qualified custodians’

to hold client assets” above. 

16 See “The audit approach for advisers to pooled investment vehicles” above. 
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• The Role of Employees or Related Persons17: The adviser’s personnel or a “related 

person” serve as trustee or have been granted power of attorney for client accounts.18

• Bill-Paying Services: The adviser provides bill-paying services for clients and, 

therefore, is authorized to withdraw funds or securities from the client’s account.19

• Online Access to Client Accounts: The adviser manages portfolios by directly 

accessing online accounts using clients’ personal usernames and passwords without 

restrictions and, therefore, has the ability to withdraw funds and securities from the 

clients’ accounts.20

• Adviser Acts as a General Partner: The adviser serves as the general partner of a 

limited partnership or holds a comparable position for a different type of pooled 

investment vehicle.21

• Physical Possession of Assets: The adviser has physical possession of client assets,

such as securities certificates.22

• Check-Writing Authority: The adviser or a related person has signatory and check 

writing authority for client accounts.23

• Receipt of Checks Made to Clients: The adviser received checks made out to clients 

and failed to return them promptly to the sender.24

 Surprise Exam Requirement 

NEP staff observed deficiencies regarding surprise exams when: 

• A Form ADV-E was not filed within 120 days after the date of the exam chosen by the 

accountant.25

 17 A “related person” is defined in Rule 206(4)-2(d)(7) to mean “any person, directly or indirectly, controlling or 

controlled by the adviser, and any person that is under common control with the adviser.”

18 Rule 206(4)-2(d)(2)(ii).

19 Rule 206(4)-2(d)(2). See Custody of Funds or Securities of Clients by Investment Advisers, Section II. A., 

Investment Advisers Act Rel. 2176 (Sept. 25, 2003), 68 FR 56692 (Oct. 1, 2003).

20 Rule 206(4)-2(d)(2).

21 Rule 206(4)-2(d)(2)(iii).

22 Rule 206(4)-2(d)(2)(i).

23 Rule 206(4)-2(d)(2).

24 Rule 206(4)-2(d)(2)(i).

25 Rule 206(4)-2(a)(4)(i).
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• Evidence suggested that examinations were not being conducted on a “surprise” basis 

(e.g., exams were conducted at the same time each year).26

 Qualified Custodian Requirements

Certain advisers did not satisfy the “qualified custodian” requirements when:

• Client assets were held in the adviser’s name, but not in an account that was under the 

adviser’s name as agent or trustee for the client and that held only client assets.27

• The adviser commingled client, proprietary, and employee assets into one account.28

• Certificates of securities29 held by the adviser’s fund were held in a safe deposit box 

controlled by the adviser at a local bank.30

• The adviser did not have a reasonable basis, after due inquiry, for believing that a 

qualified custodian was sending quarterly account statements to the client.31

• In instances where the adviser opened a custodial account on behalf of a client and sent 

account statements to the client, the statements sent by the adviser failed to include 

 

26 Rule 206(4)-2(a)(4).

27 Rule 206(4)-2(a)(1) requires the qualified custodian to maintain client assets in a separate account for each client 

under the client’s name or in accounts under the name of the adviser as agent or trustee for the clients (which is 

permitted only if the accounts contain only clients’ funds and securities). See SEC v. Commonwealth Advisors, Inc., 

(M.D. La.)(filed Nov. 8, 2012) (adviser alleged, among other things, to have engaged in a scheme to hide losses 

from certain hedge funds it managed and to have violated the qualified custodian requirements of the custody rule 

because it held fund assets in an account in its name, rather than in an account in the client’s name or in the adviser’s 

name as agent or trustee for the client).

28 Rule 206(4)-2(a)(1).

29 Although Rule 206(4)-2(b)(2) excepts certain privately offered securities from the requirement that client 

securities be held by a qualified custodian, this exception is subject to several conditions, including that the 

privately issued securities must be uncertificated and their ownership must be recorded only on the books of the 

issuer or its transfer agent. In addition, the securities must have been acquired from the issuer in a transaction 

or chain of transactions not involving any public offering and must be transferable only with the prior consent 

of the issuer or holders of the issuer’s outstanding securities. 

30 As the SEC has explained, because client funds and securities must be held on behalf of the client by the qualified 

custodian so that the qualified custodian can provide account information to the clients, keeping stock certificates in 

the adviser's bank safe deposit box, for example, would not satisfy the requirements of the rule. See Custody of 

Funds or Securities of Clients by Investment Advisers, Investment Advisers Act Rel. 2176 (Sept. 25, 2003), 68 FR 

56692 (Oct. 1, 2003) at note 18.

31 Rule 206(4)-2(a)(3).
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notification urging clients to compare the account statements from the custodian with 

those from the adviser.32

 Audit Approach Issues

Some advisers that relied on the “audit approach” with respect to pooled investment vehicles 

were not in compliance because:

• The accountant that conducted the financial statement audit was not “independent” 

under Regulation S-X, as required by the custody rule.

• The audited financial statements were not prepared in accordance with GAAP (e.g.,

organizational expenses were improperly amortized rather than expensed as incurred, 

resulting in a qualified audit opinion; financial statements were prepared on a federal 

income tax basis; the adviser could not substantiate fair valuations and the accountant 

therefore could not issue an unqualified opinion on the financial statements).33

 

• The adviser failed to demonstrate that the audited financial statements were distributed 

to all fund investors. Rather, it appeared that in many instances the statements were 

only made available “upon request.”34

• The audited financial statements were not sent to investors within 120 days of the 

private funds’ fiscal year ends (or 180 days for fund of funds).35

• The auditor was not PCAOB-registered and subject to PCAOB inspection.36

• A final audit was not performed on liquidated pooled investment vehicles.37

 32 Rule 206(4)-2(a)(2). The custody rule does not require an adviser that opens a custodial account on the client’s 

behalf to send account statements to the client separate and apart from those the qualified custodian sends. If the 

adviser does send clients its own account statements, however, the adviser must include a notice in the statement, 

when opening an account for a client and when sending subsequent account statements to the same client, urging the 

client to compare the account statements from the qualified custodian with those from the adviser.

33 Rule 206(4)-2(b)(4)(i).

34 Rule 206(4)-2(b)(4)(i).

35 Rule 206(4)-(2)(b)(4)(i). See Investment Advisers Act Release No. 2968 (Dec. 30, 2009) 75 FR 1456 (Jan. 11, 

2010) at footnote 45 (stating that, although the custody rule requires an adviser relying on the audit approach to 

distribute financial statements to investors within 120 days, the Commission’s most recent custody rule amendments 

did not affect the staff’s views expressed in a 2006 no-action letter in which the staff stated it would not recommend 

enforcement action against an adviser to a fund of funds that distributed the financial statements within 180 days). 

See ABA Subcommittee on Private Investment Entities, SEC Staff Letter, Aug. 10, 2006.

36 Rule 206(4)-(2)(b)(4)(ii). 

37 Rule 206(4)-2(b)(4)(iii). In order to use the audit approach, an adviser to a pooled investment vehicle must 

distribute audited financial statements to the pooled investment vehicle’s investors upon the pool’s liquidation. 
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• The adviser requested investor approval to waive the annual financial audit of a fund—

but did not obtain a surprise examination.38 The adviser, therefore, failed to either 

undergo a surprise exam or comply with the audit approach.

In addition to the deficiencies found in this set of examinations, registrants should also be aware 

that the staff has observed that advisers to some PIVs may be using financial statements for those 

PIVs to satisfy the custody rule’s audit approach that are not prepared in accordance with U.S. GAAP 

or audited in accordance with U.S. Generally Accepted Auditing Standards as described in the 2003 

Custody Rule Adopting Release, without satisfying the conditions set out in that guidance.39 For 

example, the staff has observed instances in which the PIV’s audit was not conducted in accordance 

with U.S. Generally Accepted Auditing Standards and/or the financial statements prepared in 

accordance with International Financial Reporting Standards did not contain information 

substantially similar to statements prepared in accordance with U.S. GAAP (e.g., the Schedule of 

Investments or Financial Highlights were omitted, or included but were labeled as unaudited).

Conclusion

The Advisers Act custody rule is designed to protect and safeguard client assets. Advisers may 

want to consider their policies and procedures and their compliance with the custody rule in light 

of the deficiencies noted in this Alert. Deficiencies in this area have resulted in actions ranging from 

immediate remediation to enforcement referrals and subsequent litigation. 

 38 Rule 206(4)-2(b)(4).

39 See Footnote 41 of the 2003 Custody Rule Adopting Release; See also Staff Responses to Questions About the 

Custody Rule, Question VI 5, available at http://www.sec.gov/divisions/investment/custody_faq_030510.htm 

(providing staff guidance to pooled vehicles organized outside of the United States, or having a general partner or 

other manager with a principal place of business outside the United States, to allow them to use the “audit approach” 

even if they have their financial statements prepared in accordance with accounting standards other than U.S. GAAP 

so long as they contain information substantially similar to statements prepared in accordance with U.S. GAAP and 

meet certain other conditions).
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NEP staff also welcomes comments and suggestions about how the Commission’s examination 

program can better fulfill its mission to promote compliance, prevent fraud, monitor risk, and 

inform SEC policy. If you suspect or observe activity that may violate the federal securities laws or 

otherwise operates to harm investors, please notify us at 

http://www.sec.gov/complaint/info_tipscomplaint.shtml.

This Risk Alert is intended to highlight for firms risks and issues that the staff has identified in the course of 

examinations regarding investment advisers’ obligations when they maintain custody of client assets. In addition, 

this Risk Alert describes factors that firms may consider to (i) assess their supervisory, compliance and/or other risk 

management systems related to these risks and issues, and (ii) make any changes, as may be appropriate, to address 

or strengthen such systems. These factors are not exhaustive, and they constitute neither a safe harbor nor a 

“checklist.” Other factors besides those described in this Risk Alert may be appropriate alternatives or supplements to 

consider. The risks, issues and associated factors described are for informational purposes only. They do not 

necessarily represent legal or regulatory requirements. They do not present any legal opinion or advice. Moreover, 

future changes in laws or regulations may supersede some or all of the discussion in this Alert. Some of these risks, 

issues and associated factors may not be applicable to a particular firm given the characteristics of its business or 

operations. The adequacy of supervisory, compliance and other risk management systems can be determined only 

with reference to the profile of each specific firm and other facts and circumstances.