Few of us know how to repair a laptop, grasp the details of income tax regulations, or understand the nuances of selecting the best mutual fund. We must rely on others to help us out.
In the legal sense, there are very few people who “owe” us their trust. Certainly, those selling us goods owe us accuracy and honesty. When I buy a 48-ounce bottle of 100% pomegranate juice from Safeway, I expect it to contain exactly 48 ounces and be 100% pomegranate juice, not a blend of pomegranate, grape, and apple. However, I cannot trust Safeway to know whether the health claims behind pomegranate juice are accurate or whether I can find it cheaper elsewhere.
In a similar fashion, salespeople for appliances, cars, or cable service have one basic goal, to sell products to their customers. They owe us honesty about the costs, features, and condition of their wares. But it is up to us to research products and decide whether they are good values for us.
Professionals in some fields give unbiased advice about certain products or services as they relate specifically to you. In a legal sense, such professionals do owe you trust. They have a “fiduciary” duty to be your advocate. The law requires a professional held to a fiduciary duty to work solely in the consumer’s interest. Examples of such professionals are physicians, attorneys, accountants, trustees, trust officers, and most real estate consultants.
When a professional has a fiduciary duty to you, you are called a client. When a professional is selling you a product or service, you are a customer.
One of the primary issues affecting how easily fiduciaries can advocate for you is their level of freedom from a conflict of interest. At times a potential conflict of interest can be so significant that a fiduciary will decline the engagement. Attorneys, for example, will turn you down if you want to sue someone they have represented in the past. The past association may cloud their ability to effectively advocate for you.
One of the greatest potential conflicts of interest is how you compensate the fiduciary. Typically, paying a flat or hourly fee is the easiest way to insure there is no compensational conflict. Compensating a fiduciary with commissions almost always carries some type of potential conflict. The greater the compensation from a commission, the greater the potential conflict.
For example, Real Estate Agent A acts as a buyer’s broker with a fiduciary duty to a buyer, who pays her an hourly fee plus 1% of any amount that the final purchase price is reduced from the list price. Agent B, also a fiduciary buyer’s broker, is only compensated by a commission if there is a sale. Which agent has the larger potential conflict of interest? Without a question, Agent B. He may face a situation where his client’s interest would be best served by a sale with a lower commission or even no sale at all. Advocating for his client would mean a direct financial loss for Agent B.
To minimize such potential conflicts, in most states real estate agents are required to clearly disclose fees and get clients’ written acknowledgement. Unfortunately, the total fees charged by investment advisors, and whether you are their customer or a client, is seldom clear, often even when the advisor assures you that you will be a client. Many advisors don’t know the difference.
What can you do to protect yourself? Next week I will give you a five-minute solution.