FINRA registered representatives are subject to FINRA rule 8210. This rule makes it so investigators can subpoena a person, and require them to testify on the record, and compels them to produce documents. It’s FINRA’s version of a subpoena. It’s a unique request, that applies only to FINRA registered representatives. It allows investigators to essentially subpoena you – i.e. require you testify on the record. While they are similar to SEC subpoenas – they differ in practice. FINRA investigators regularly tell parties that FINRA isn’t the government and is a private organization. As a result, some people think that they cannot require you to testify under threat of contempt or jail time. People think their response is voluntary. This isn’t entirely accurate. Failing to respond to a FINRA 8210 means you lose your license. For full-time reps, that means you lose your livelihood. As a result, it’s not really voluntary. Because FINRA isn’t a government agency, there is no 5th amendment privilege, and in some cases, the conduct under investigation may be criminal, and the testimony being given is under oath. So as a result, pleading the fifth and trying to retain your license isn’t an option.
Here’s what to do if you get an 8210 request
Receiving an 8210 request subpoena can be a worrisome event. When you receive one, you need to make sure your interests are represented, and you’re being protected. We recommend you contact our FINRA defense lawyers to get help. You should also notify your compliance officer. It’s likely they’ll have already gotten a copy from FINRA. At this point, you’ll start the process of complying with the 8210 request. That means getting documents and prepaying for the OTR interview. The OTR interview before FINRA and SEC are similar. They involve sitting in a conference room and answering questions under oath. In both cases, you can have an attorney present to represent you.
Before you get to this point though
It’s critical you sit down with your attorney who’ll help you. Your attorney will determine what’s in your best interest, and what might be adverse for you. Your broker-dealer, and the broker-dealer lawyers are going to look out for the broker-dealer. It’s important you have an attorney whose going to look out for you. Too often, reps think their firm is looking out for them. Once they are suspended by FINRA, they realize they were the firm’s scapegoat. When it comes to the SEC, you could face fines, as well as losing your license. The minute you get the 8210 request, you have to focus on protecting yourself.
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