Are Brokers Fiduciaries, Even Though They Accept Commissions? Yes, Says Financial Advice Ethics Expert Ron Rhoades Hot

With financial regulators and Congress wrestling with how to implement the Dodd-Frank Act, figuring out who should regulate RIAs, and being urged to consider creation of a single fiduciary standard that would apply to all financial advisors—fee-only and commission, I emailed Rhoades several questions about the obligation of commission-compensated brokers to act as fiduciaries. Below are Rhoades’ answers to my questions about how brokers can accept commissions and still be a fiduciary.  

 

If commissions are agreed-to in advance with the client, are reasonable in amount for the services and advice provided, and no additional compensation to the broker results from the sale of the product (such as other forms of revenue-sharing arrangements), then the commission fee structure is essentially the same as paying an agreed-upon fixed fee for the advice to be provided, given the amount to be invested. However, difficulties exist with commissions, in several respects:

First, is the amount of the compensation reasonable? If all you are doing is recommending an asset allocation to the client, and picking mutual funds, and if you charge 4% of $1,000,000 invested across multiple fund complexes, these acts might very well result in unreasonable compensation for the services provided. In each case, expert testimony is required to examine the services provided, and to determine whether the fee is “reasonable” under the fiduciary standard for the advice which is provided. There are many, many different circumstances in which brokers are currently operating on a commission basis, where the compensation might be viewed by an expert as unreasonable.

Second, have you as a fiduciary limited yourself too much, in terms of the products being able to be accessed? Dodd-Frank permits a broker, if the fiduciary standard is applied, to have a limited range of product offerings. Even then, the SEC may place limits on this practice.

Third, have you avoided all differential compensation? As stated above, differential or variable compensation is difficult to defend under the “best interests” fiduciary standard, and likely prohibited under ERISA’s tougher “sole interests” fiduciary standard.

 

Technically, the “best interests” fiduciary standard of conduct does not prohibit commission-based compensation, nor does it prohibit additional compensation being paid to the fiduciary from a third party. In theory, there is nothing different from a flat fee being charged for one-time investment advice, versus a commission; the only difference is how the fee is computed (not necessarily the amount), and who pays it (either way, it results in a payment from the client, whether direct or indirect).

The problem arises when the amount of compensation varies depending upon the advice which is given. For example, if one product pays a fiduciary 6%, plus 0.25% trailing fee indefinitely, while another product pays a fiduciary only 4% with no trailing fee, then the fiduciary has a financial incentive to recommend the higher-cost product. In this respect, the fiduciary bears the burden of demonstrating, in a court of law (or arbitration), that the client is not harmed by paying a higher fee. Since substantial economic evidence demonstrates that higher-fee products possess, on average, lower returns, it becomes very problematic for the fiduciary to try to justify his or her actions.

Given the higher attention being paid by litigation attorneys to fiduciaries who recommend (or, in the case of plan sponsors, approve the selection of) higher-fee-and-cost products, it is only a matter of time before some client of a fiduciary would challenge the fiduciary in an arbitration or legal proceeding. In my mind, the better way is to avoid the conflict altogether. Specify and agree with the client on the amount of compensation to be paid, in advance of any recommendation being undertaken. Then adhere to that amount of compensation.

Of course, the business practices of Wall Street will be forced to change, under a levelized compensation approach. Gone will be the insidious practices of payment for shelf space (a type of “pay-to-play” arrangement), soft dollar compensation, and other compensation structures which result in the fiduciary (individual or firm) receiving greater total compensation as a result of recommending X product, instead of Y product.

Even fee-only advisors possess conflicts, however, which may cause differential compensation. The classic examples involve whether to purchase a fixed immediate annuity, or to pay off a mortgage or other debt. In both instances, a fee-only advisor whose fees are based upon the amount of investment assets managed would possess a conflict of interest. In these instances, fiduciary advisors must be very careful to justify the advice that they provide. There may be solid reasons to not purchase an immediate annuity for a client who is retired (there are many factors at play). There may be good reasons to not pay down a mortgage (due to deductibility of interest, possible low interest rate being paid relative to returns obtained in the capital markets, etc.). This is a case where the conflict of interest is unavoidable, and must be properly managed. Fee-only advisors are to be applauded for avoiding commission-based compensation, and other third-party payments, which can result in conflicts of interest. Yet, fee-only advisors may, in some instances, still possess a conflict of interest, which must in such instance be properly managed.

 

Yes, and the broker is probably already a fiduciary. Most brokers, I would observe, are already fiduciaries under state common law.

 

Not under the ’34 Act. But, rather, fiduciary status arises under state common law. Here’s the key. A person registered under the ’40 Act, and operating as an investment adviser, is automatically a fiduciary. At the time the 1940 Investment Advisers Act was adopted, everyone thought it imposed fiduciary duties. (The U.S. Supreme Court only confirmed that fact, in its seminal 1963 Capital Gains decision.)

A person registered under the ’34 Act may be, and often is, still a fiduciary. It was commonly known (and stated by NASD, now known as FINRA, and by the SEC, in the early 1940’s) that brokers were fiduciaries when they provided personalized investment advice—i.e., when they formed a relationship of trust and confidence with the client. Fiduciary status results not from the application of the ’40 Act (which relates only to whether registration is required), but due to the application of state common law.

The ’34 Act, unlike ERISA, does not preempt the application of state common law, as to the application of the fiduciary standard of conduct. Many, many brokers (and even some insurance agents) are found to be fiduciaries, applying state common law. In fact, the #1 complaint in arbitration proceedings against brokers in the past five years has been for “breach of fiduciary duty.”

When the ’40 Act was enacted, nowhere in the ’40 Act did it state that brokers were not fiduciaries. Indeed, it was commonly known at the time that brokers were fiduciaries when providing personalized investment advice—i.e., when in a relationship of trust and confidence with the client. And simply by the use of a title such as “financial consultant,” or a designation such as “financial planner,” the broker has taken the necessary step to invite the client into, and accept, a relationship of trust and confidence. Every instance is still a facts-and-circumstances analysis, yet most brokers – who pride themselves in knowing their clients, meeting with them regularly, etc. – have likely formed the relationship of trust and confidence which results in fiduciary status being imposed, as to those clients.

 

Technically, yes under state common law and under the Advisers Act, but not under ERISA (unless the DOL grants exemptive relief in this area). Differential compensation under ERISA would violate its strict “sole interests” fiduciary standard and ERISA’s prohibited transaction rules.

For example, in the retirement space arena a mutual fund may have share classes which vary from R-1 to R-6. R-1 may have a 1.00% 12b-1 fee (which is passed on to the brokerage firm in a revenue-sharing arrangement), while class R-6 might have a 0.05% annual 12b-1 fee. Other classes would have fees in between. This permits the fiduciary advisor to negotiate, in advance with the client, what the fees to be received will be. (Even then, I think 12b-1 fees are fraught with problems, including anti-competitiveness.)

If the agent is being paid a straight commission, then the commission should be negotiated in advance between the fiduciary and the client. Any product which fits within that commission level can then be considered by the fiduciary. (A disclosure must be made that other products will not be considered by the fiduciary, and the ramification of that limitation should likewise be explained to the client). If, however, no agreement is made in advance with the client as to the maximum amount of commission to be charged, then the selection of a fund with a higher commission becomes problematic, for the reasons noted above.