Find Out If Fiduciary Duty is Required From Commission-Based Advisor

by | Apr 27, 2015 | *Financial Awakenings, Fee Only Financial Planning, Weekly Column

Joined in businessCan a financial advisor represent your best interests and still earn a commission? Surprisingly, this can sometimes be the case. It’s up to you to find out.

Being required to put the consumer’s interest first, which means representing a client rather than selling products and services to a customer is called having a fiduciary duty. While fee-only planners are inherently fiduciaries, they don’t exclusively own the fiduciary domain. The definition of a fiduciary duty does not inherently ban receiving commissions. Numerous statutes and applications of common law can require someone receiving a commission from selling a financial product to act in a fiduciary capacity. One such circumstance was discussed in a blog post at www.kitces.com by Duane Thompson, president of Potomac Strategies, LLC, a legislative and public relations consulting firm.

Those registered with the SEC as Registered Investment Advisors (RIA) under the Investment Advisers Act of 1940 are required to uphold a fiduciary standard of care. Advisors must register as RIAs if they, “for compensation, engage in the business of advising others” about investing in securities and as a central part of the business.

The 1940 Act has almost nothing to say about linking compensation to fiduciary responsibility. While large firms selling financial products can argue whether they must register as RIAs, it is clear that anyone registered as an RIA is held to a fiduciary standard, regardless of their compensation structure.

That said, the chances are an advisor who is compensated 100% by commissions is not an RIA and not held to a fiduciary standard. Of the 11,475 adviser firms registered with the SEC, only four are commission only, according to Thompson. Of the remainder, those that receive commissions also charge some type of fee.

The overwhelming odds are that, if you don’t pay a fee to a company giving investment advice or selling a financial product, they are not legally required to look after your best interests. Even though an RIA who is totally or in part compensated by commissions has a legal obligation to put your interests first, they may still have a conflict of interest, which the SEC requires them to disclose. The size of that conflict of interest depends on the percentage of an adviser’s revenue derived from selling financial products.

For example, a RIA receiving 90% of their revenue from the sale of financial products has a large conflict of interest. The sustainability of the company and advisers’ careers depends upon sales. Arguably it’s going to be very difficult for an adviser to remain unbiased, especially if what may be in the client’s best interest is a no-load, low cost index mutual fund or variable annuity, both which pay no commission.

Conversely, an advisor receiving 99% of their revenue from fees and 1% from commissions on the sale of low-cost term life insurance has almost no conflict. The sale of the insurance is most likely a convenience for clients and has an insignificant financial impact to the adviser.

In order to find out the likelihood of advisers upholding a fiduciary standard, first ask whether they are a RIA with the SEC. If not, they owe you no fiduciary responsibility. You are a customer.

If an adviser is an RIA, however, don’t assume there is no conflict of interest that may taint the fiduciary relationship. Ask how much of the firm’s gross revenue comes from commissions on the sale of financial products and how much comes from fees paid directly by clients. The higher the percentage of revenue that comes from fees, the lower the conflict of interest and the greater the chance you will receive unbiased, client-centered advice.

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