Incidental advice & ERISA

[MSN]

If a person is going to be a fiduciary investment adviser to a plan under ERISA, could they do so and not be an investment adviser representative? This question stems from a 408(b)(2) notice I saw from a registered representative (who is not an IAR) that disclosed that the rep was providing fiduciary investment advice under ERISA, but that such advice was "solely incidental" to the brokerage services provided. Since incidental advice falls under an exemption from registration in the 40 Act, it seems possible for someone to provide fiduciary advice under ERISA without being overtly licensed to do so, which doesn't feel right to me.

If a plan sponsor, or other named fiduciary, would select an individual who wasn't an IAR to give investment advice, would that alone constitute a breach of their fiduciary duty to participants in that it's not acting "with the care, skill, prudence, and diligence under the circumstances then prevailing that a prudent man acting in a like capacity and familiar with such matters would use in the conduct of an enterprise of a like character and with like aims?" If it would be a breach, can the arrangement meet the suitability requirements under FINRA?