USA – FLORIDA Trends and Developments Contributed by: Diego R. Figueroa Rodríguez and Maria Ojeda, DLA Piper
ists and galleries occasionally utilise advisory services for strategic career advancement or advice on collec - tion development. The relevance of art advisors The art market is characterised by information asym - metry, limited liquidity and opacity, underscoring the need for specialised guidance. Pricing in most private sales remains undisclosed, provenance research often demands considerable diligence and legal and regula - tory frameworks (or lack thereof) vary widely across jurisdictions. Engaging a knowledgeable advisor helps collectors avoid overpayment, prevent acquisition of works with problematic provenance or title issues and mitigate risks associated with speculative trends that could lead to financial loss. Importantly, reputable advisors maintain independence from galleries, auc - tion houses and artists, ensuring objective recommen - dations aligned exclusively with their clients’ interests. Unlike many professions in Florida, where real estate brokers, insurance agents, accountants and numer - ous other service providers are licensed and regulated by the state, art advisors are not subject to a dedicat - ed licensing or regulatory regime. There is no state or federal agency that issues art advisor licenses, admin - isters qualifying examinations, or maintains a registry of authorised practitioners. Legal Considerations The legal framework Some art advisors rely on informal arrangements, but the law imposes duties regardless of whether a con - tract exists. Acting for a client in an art deal creates fiduciary responsibilities with real consequences. In Florida, as well as in the rest of the USA, art advisors’ conduct is governed by the common law of agency and fiduciary duty, by contract law and by a range of state and federal statutes that apply more broadly to Art advising is regarded by law as a profession defined by trust, specialised expertise and an inherent imbal - ance of power between the advisor and client. This perspective imposes fiduciary responsibilities on advisors, irrespective of their personal awareness of these obligations. Courts hold art advisors to an commercial transactions. The fiduciary relationship
elevated standard, given that clients may lack mar - ket knowledge; therefore, advisors are required to act exclusively in the client’s best interests with complete transparency and loyalty. Fiduciary duties are derived from equity law rather than established business practices. Within the US, courts employ both legal (rules and contracts) and equitable (fairness and relationships) frameworks, with fiduciary obligations anchored in the latter to safe - guard trust-based professional relationships. Accord - ing to Florida law, when an individual consents to act on behalf of another, an agency relationship is created, which carries fiduciary duties regardless of whether the agreement is formalised in writing. Florida courts acknowledge that a fiduciary relationship emerges whenever one party places trust and confidence in another. Once an art advisor undertakes representa - tion for a client, fiduciary law prescribes certain core duties central to the advisor’s professional obligations, as outlined below. • Loyalty: Ensuring that the client’s interests always take precedence over any interests of the advi - sor. Advisors are obligated to act exclusively in the client’s best interests. They must avoid conflicts of interest and are prohibited from accepting commis - sions or benefits from third-party sellers unless the client provides informed, written consent. • Obedience: Advisors must follow all lawful instruc - tions and terms set out in the controlling agree - ments and act within the scope of their authority. • Reasonable care and diligence: Advisors must operate with the skill of a prudent person in simi - lar circumstances. They are required to exercise sound judgment tailored to the client’s specific needs and level of sophistication. This includes diligently gathering relevant information, carefully assessing risks and safeguarding the client from undue harm. When clients lack market experience, advisors must take additional steps to thoroughly explain transactions and ensure clients understand the nature and risks of each transaction. • Full disclosure: Advisors must disclose any infor - mation that could impact the client’s interests, including commissions, financial relationships with sellers and any potential conflicts of interest. Clients are entitled to know if the advisor receives
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