Sunday, May 19, 2013

Musings: “Custodial Support Services Agreements,” RIAs, and Properly Managing Conflicts of Interest

In recent weeks there have been a few articles discussing the implication of one or more independent RIAs receiving a portion of 12b-1 fees paid by mutual funds to a discount custodian.
Another article critical of the arrangement portrayed was posted by Andy Gluck at

Since these articles came out, the question has been posed by several readers of this blog: “Can Registered Investment Advisers (RIAs) receive compensation which is not paid directly by the client?” The Answer: “Yes, and no.”

And the following specific question has also been posed: “Can RIAs receive revenue-sharing, in the form of a portion of 12b-1 fees, from their custodian?” The Answer? “Yes, and no.” Or, as any good lawyer might opine, “it depends.”

Permit me to first convey some additional facts about the practice and compensation method under scrutiny. I then explore the fiduciary of loyalty and what it requires when a conflict of interest is present. I then return to the fee-sharing arrangement between the discount broker (custodian) and the independent RIA firm, and seek to offer an opinion as to whether it is proper.


In the practice under scrutiny, a discount custodian places certain mutual funds on the custodian’s “no-transaction-fee” platform. The mutual fund company pays the custodian all or part of the 12b-1 fees charged to fund shareholders. This practice in itself is not surprising, as this has become the more-or-less standard methodology by which no-transaction-fee funds are offered by discount brokerage firms.

What is surprising, however, is that the discount broker (custodian) then turned around and shared a portion of those fees with an otherwise independent RIA firm (i.e., not one associated with a broker-dealer), under a “custodial support services.”

What services could an RIA possibly be providing to a large discount brokerage firm (custodian)? Part 2A of Form ADV, the "Firm Brochure" of PHH Investments, Ltd. dba Retirement Advisors of America, dated March 2013, states that under the “custodial support services agreement with Fidelity … the Firm provides Fidelity with certain back office, administrative, custodial support and clerical services with respect to Firm accounts (“Support Services”). In exchange, Fidelity provides certain recordkeeping and operational services to the Firm, which may include execution, clearance and settlement of securities transactions, custody of securities and cash balances, and income collections. Fidelity pays the Firm a fee to defray the Firm’s costs and expenses for providing these Support Services. The amounts of these payments are calculated based on the average daily balance of eligible client assets, which consist primarily of client investments in ‘no transaction fee’ mutual funds. The Firm’s receipt of this fee may create a potential conflict of interest. It is the policy of the Firm to place the interest of its clients first, so the decision to invest or not in a particular mutual fund is not dependent upon either of these agreements.”

Similar arrangements may have existed for some time with other RIA firms. For example, here's one disclosure which sets forth the amount of compensation provided:

"[RIA FIRM] has entered into a custodial support services agreement with National Financial Services,
LLC and Fidelity Brokerage Services, LLC (together with National Financial Services LLC,
“Fidelity”) in connection with [FIRM]’s participation in the Fidelity Registered Investment
Advisor Group (“FRIAG”) platform. [FIRM] provides back-office, administrative, custodial
support and clerical services in connection with Client accounts on the FRIAG platform. For
these services, Fidelity pays [FIRM] the following percentage based upon NFPSI Client assets on
the FRIAG Platform:
    Assets                                       Percentage
    $100,000,001 - $150,000,000    0.10%
    $150,000,001 - $200,000,000    0.11%
    $200,000,001 - $500,000,000    0.12%
    $500,000,001 and over              0.14%"

[From the Form ADV, Part 2A dated 2005, of an RIA firm.]

The foregoing Form ADV Part 2 disclosure results in several questions:
  • Are the Fees Paid Reasonable for the Services Provided? First, what are these “back office, administrative, custodial support and clerical services with respect to Firm accounts” that the RIA firm is providing to Fidelity? What value is the RIA firm providing to Fidelity, that merits Fidelity paying a portion of the 12b-1 fees to the RIA firm?
  • Is the Disclosure of Material Facts Made to Client Adequate, Explicit, and Understandable? Second, is the disclosure to the clients adequate? Given that I cannot pinpoint or evaluate the services provided, nor the amount of fees paid to the RIA firm, does the disclosure meet the requirement to disclosure all “material facts” with complete candor? Are other point-of-recommendation disclosures undertaken by the RIA firm to the clients, which provide the level of specific disclosure of material facts required under the fiduciary standard of conduct, in a manner designed to ensure complete client understanding?
  • Has the Client Been Harmed? Third, even with disclosure, is the investment of client funds in no-transaction-fee funds in the client’s best interests? I have previously written about 12b-1 fees, and cautioned RIA firms (and broker-dealers) to avoid them – it is the possible next big scandal to affect the securities industry.  See
Furthermore, since the time of my article referred to above, on the issue of 12b-1 fees, the U.S. Court of Appeals for the 9TH Circuit, in dicta, issued its own warning (applying ERISA’s strict “sole interests” fiduciary standard), stating: “Mutual funds generate this revenue by charging what is known as a Rule 12b-1 fee to all investors participating in the fund. Edison takes the position that because that fee applies to Plan beneficiaries and all other fund investors alike, the allocation of a portion of that total 12b-1 fee to Hewitt is irrelevant. As it put the matter at oral argument: ‘the mutual fund advisor can do whatever it wants with the fees; sometimes they share costs with service providers who assist them in providing service and sometimes they don’t.’ This benign-effect, of course, assumes that the ‘cost’ of revenue sharing is not driving up the fund’s total 12b-1 fee and, in turn, its overall expense ratio. It also assumes that fiduciaries are not being driven to select funds because they offer them the financial benefit of revenue sharing. The former was not explored in this case and the evidence did not bear out the latter, but we do not wish to be understood as ruling out the possibility that liability might—on a different record—attach on either of these bases.”

In essence, the 9th Circuit recognizes that no client would ever provide informed consent to a conflict of interest where the client would be harmed. Since substantial academic evidence exists that fees and costs matter, if 12b-1 fees are charged and not credited back to client accounts, is not the client harmed? In essence, don’t 12b-1 fees nearly always result in a higher overall expense ratio, with no real benefit to the client of a fiduciary advisor?

One can hypothesize that small periodic contributions to a no-transaction-fee fund might be appropriate, to avoid transaction fees and to deploy cash into the markets cost-effectively. But, even then, a prudent RIA firm would likely require the client to sell the no-transaction-fee fund once a certain level of assets was accumulated in same, and purchase a fund without 12b-1 fees instead, in an effort to keep the client’s fees and costs over time as reasonable as possible.


A conflict of interest cannot be dealt with merely by disclosure. A bona fide fiduciary standard requires much more.

The duty of loyalty is a duty imposed upon an investment adviser, as the investment adviser possesses a fiduciary relationship to his or her client. Investment advisers must take only those actions that are within the best interests of the client. The fiduciary should not act in the fiduciary’s own interest. Engaging in self-dealing, misappropriating a client’s assets or opportunities, having material conflicts of interest, or otherwise profiting in a transaction that is not substantively or “entirely fair” to the client may give rise breaches of the duty of loyalty. High standards of conduct are required when advising on other people’s money.

While the “best interests” fiduciary standard often permits disclosure of a conflict of interest followed by the informed consent of the client, it should be noted that the existence of conflicts of interest, even when they are fully disclosed, can serve to undermine the fiduciary relationship and the relationship of trust and confidence with the client. The existence of substantial or numerous conflicts of interest, which otherwise could have been reasonably avoided by the investment adviser, could lead to not only an erosion of the investment adviser’s relationship with the client, but also an erosion of the reputation of the investment advisory profession. Hence, investment advisers should reasonably act to avoid conflicts of interest.

Investment advisers should maintain objectivity and be free of conflicts of interest in discharging professional responsibilities. Objectivity is a state of mind, a quality that lends value to a member's services. It is a distinguishing feature of the profession.  The principle of objectivity imposes the obligation to be impartial, intellectually honest, and free of conflicts of interest. Independence precludes relationships that may appear to impair a member's objectivity in rendering investment advice.

Many types of compensation are permissible under these Investment Adviser Rules of Professional Conduct, including commissions, a percentage of assets under management, a flat or retainer fee, hourly fees, or some combination thereof.  However, the term “independence” requires that the investment adviser’s decision is based on the best interests of the client rather than upon extraneous considerations or influences that would convert an otherwise valid decision into a faithless act.

An investment adviser would not be independent if the investment adviser is dominated or beholden to or affiliated with an individual or entity interested in the transaction at issue and is so under their influence that the investment adviser’s discretion and judgment would be sterilized.  Compensation arrangements which vary the investment adviser’s compensation depending upon the investment strategy or products recommended by the investment adviser to the client creates such a severe conflict of interest that investment advisers should act to reasonably avoid such arrangements.

Let me restate this, to be clear: AVOID DIFFERENTIAL OR VARIABLE COMPENSATION ARRANGEMENTS. It will be most difficult to convince a jury that you, the advisor, were acting in the best interests of your client. And the burden of proof falls upon you, the fiduciary, in an action brought for breach of fiduciary duty.

A conflict of interest occurs when the personal interests of the investment adviser or the investment adviser’s firm interferes or could potentially interfere with the investment adviser’s responsibilities to his, her or its clients.  Hence, investment advisers should not accept inappropriate gifts, favors, entertainment, special accommodations, or other things of material value that could influence their decision-making or make them feel beholden to a particular person or firm.


Under the ERISA “sole interests” fiduciary standard and its prohibited transaction rules, an ERISA fiduciary must nearly always avoid conflicts of interest relating to compensation.

However, under the Investment Advisers Act of 1940 and state common law “best interests” fiduciary standard, certain conflicts of interest are permitted – but provided they are properly managed. (Yet, as we will see, it is difficult to properly manage conflicts of interest.)

Why is, under the Advisers Act and state common law, disclosure of a conflict of interest (alone, and without more) insufficient to meet one’s fiduciary obligations? This is because the legal concepts of estoppel and waiver possess a place in anti-fraud law, generally; however, in the fiduciary legal environment estoppel and waiver operate differently than that found in purely commercial relationships. Core fiduciary duties cannot be waived. Nor can clients be expected to contract away their core fiduciary rights.  Estoppel has a different role in the context of “actual fraud,” as opposed to its limited role when dealing with “constructive fraud.” For estoppel to make unactionable a breach of a fiduciary obligation due to the presence of a conflict, it is required that the fiduciary undertake a series of measures, far beyond undertaking mere disclosure of the conflict of interest.

It should be also noted that the common law rules applicable to fiduciaries also include the “no profit rule” (part of the commonly referred-to duty of loyalty), which requires a fiduciary not to profit from his position at the expense of his or her client. At times the no profit rule has been strictly enforced by courts in different types of fiduciary arrangements, even to the point of overturning transactions between fiduciaries and their clients where no extra profit was derived by the fiduciary above that which other market participants would have derived.  in the jurisprudence involving registered investment advisers, such a strict enforcement has not been undertaken - at least not yet.


The jurisprudence of the Investment Advisers Act of 1940 amply illustrates the true nature of fiduciary obligations.  When a conflict of interest is present, “disclosure” followed by “consent” are, in and of themselves, wholly insufficient to prevent a breach of fiduciary obligations.  Disclosure must occur timely and be of all material facts.  The burden is upon the investment adviser to reasonably ensure client understanding, and the client’s “duty to read” is circumscribed.  Such disclosure and achievement of client understanding is fundamental to securing not just the client’s “consent,” but rather the client’s informed consent.  Even then, the proposed action must remain substantively fair to the client.

Breaking this down into its parts, each part can then be separately examined:

First, disclosure must be affirmatively undertaken of all material facts relating to the conflict of interest and its potential impact on the client.

Second, the informed consent of the client is obtained.

Third, the transaction must remain substantively fair to the client.

Disclosure is Required of All Material Facts. “Under federal and state law, you are a fiduciary and must make full disclosure to your clients of all material facts relating to the advisory relationship.”  General Instructions for Part 2 of Form ADV, #3.  In fact, the SEC requires registered investment advisers to undertake a broad variety of affirmative disclosures, well beyond disclosures of conflicts of interest, and many of these disclosures are required to be found in Form ADV, Parts 1 and 2A and 2B.  For example, Part 2A requires information about the adviser’s range of fees, methods of analysis, investment strategies and risk of loss, brokerage (including trade aggregation policies and directed brokerage practices, as well as use of soft dollars), review of accounts, client referrals and other compensation, disciplinary history, and financial information, among other matters. (A full listing and discussion of the extent of these disclosures is beyond the scope of this article.)

SEC Staff also recently noted that under the “antifraud provisions of the Advisers Act, an investment adviser must disclose material facts to its clients and prospective clients whenever the failure to do so would defraud or operate as a fraud or deceit upon any such person.  The adviser’s fiduciary duty of disclosure is a broad one, and delivery of the adviser’s brochure alone may not fully satisfy the adviser’s disclosure obligations.”  SEC’s “Staff Study on Investment Advisers and Broker-Dealers - As Required by Section 913 of the Dodd-Frank Wall Street Reform and Consumer Protection Act” (Jan. 21, 2011), p.23 (available at

Furthermore, disclosure must be undertaken with absolute candor and clarity. As stated by Justice Cardoza: “If dual interests are to be served, the disclosure to be effective must lay bare the truth, without ambiguity of reservation, in all its stark significance ….”  Wendt v. Fischer, 243 N.Y. 439, 154 N.E. 303 (1926).

The extent of the disclosure required is made clear by cases applying the fiduciary standard of conduct in related advisory contexts. “The fact that the client knows of a conflict is not enough to satisfy the attorney's duty of full disclosure.” In re Src Holding Corp., 364 B.R. 1 (D. Minn., 2007).  "Consent can only come after consultation — which the rule contemplates as full disclosure.... [I]t is not sufficient that both parties be informed of the fact that the lawyer is undertaking to represent both of them, but he must explain to them the nature of the conflict of interest in such detail so that they can understand the reasons why it may be desirable for each to [withhold consent].") Florida Ins. Guar. Ass'n Inc. v. Carey Canada, Inc., 749 F.Supp. 255, 259 (S.D.Fla.1990) (quoting Unified Sewerage Agency, Etc. v. Jeko, Inc., 646 F.2d 1339, 1345-46 (9th Cir.1981)); see also British Airways, PLC v. Port Authority of N.Y. and N.J., 862 F.Supp. 889, 900 (E.D.N.Y.1994) (stating that the burden is on the client's attorney to fully inform and obtain consent from the client); Kabi Pharmacia AB v. Alcon Surgical, Inc., 803 F.Supp. 957, 963 (D.Del.1992) (stating that evidence of the client's constructive knowledge of a conflict would not be sufficient to satisfy the attorney's consultation duty); Manoir-Electroalloys Corp. v. Amalloy Corp., 711 F.Supp. 188, 195 (D.N.J.1989) ("Constructive notice of the pertinent facts is not sufficient.").  A client of a fiduciary is not responsible for recognizing the conflict and stating his or her lack of consent in order to avoid waiver.  Manoir-Electroalloys, 711 F.Supp. at 195.  Rather, “[t]he lawyer bears the duty to recognize the legal significance of his or her actions in entering a conflicted situation and fully share that legal significance with clients.”  In re Src Holding Corp., 364 B.R. 1, 48 (D. Minn., 2007).

But, having said all of the foregoing, what is a “material fact”?  “When a stock broker or financial advisor is providing financial or investment advice, he or she … is required to disclose facts that are material to the client's decision-making.”  Johnson v. John Hancock Funds, No. M2005-00356-COA-R3-CV (Tenn. App. 6/30/2006) (Tenn. App., 2006). A material fact is “anything which might affect the (client’s) decision whether or how to act.”  Allen Realty Corp. v. Holbert, 318 S.E.2d 592, 227 Va. 441 (Va., 1984).  A fact is considered material if there is a substantial likelihood that a reasonable investor would consider the information to be important in making an investment decision. TSC Industries, Inc. v. Northway, Inc., 426 U.S. 438, 449 (1976); Basic, Inc. v. Levinson, 485 U.S. 224, 233 (1988).

In essence, a material conflict of interest is always a material fact requiring disclosure.  The existence of a conflict of interest is a material fact that an investment adviser must disclose to its clients because it "might incline an investment adviser -- consciously or unconsciously -- to render advice that was not disinterested." SEC v. Capital Gains Research Bureau, Inc., 375 U.S. at 191-192.

Disclosure Must be Adequately Undertaken.

“The [SEC} Staff believes that it is the firm’s responsibility—not the customers’—to reasonably ensure that any material conflicts of interest are fully, fairly and clearly disclosed so that investors may fully understand them.”  SEC’s “Staff Study on Investment Advisers and Broker-Dealers - As Required by Section 913 of the Dodd-Frank Wall Street Reform and Consumer Protection Act” (Jan. 21, 2011), p.117 (available at

As stated in an early case applying the Advisers Act:  “It is not enough that one who acts as an admitted fiduciary proclaim that he or she stands ever ready to divulge material facts to the ones whose interests she is being paid to protect. Some knowledge is prerequisite to intelligent questioning. This is particularly true in the securities field. Readiness and willingness to disclose are not equivalent to disclosure. The statutes and rules discussed above make it unlawful to omit to state material facts irrespective of alleged (or proven) willingness or readiness to supply that which has been omitted.” Hughes v. SEC, 174 F.2d 969 (D.C. Cir., 1949).

Disclosure Must Be Sufficient to Obtain Client “Understanding.”  As stated in an early decision by the U.S. Securities and Exchange Commission: “[We] may point out that no hard and fast rule can be set down as to an appropriate method for registrant to disclose the fact that she proposes to deal on her own account. The method and extent of disclosure depends upon the particular client involved. The investor who is not familiar with the practices of the securities business requires a more extensive explanation than the informed investor. The explanation must be such, however, that the particular client is clearly advised and understands before the completion of each transaction that registrant proposes to sell her own securities.”  In re the Matter of Arleen Hughes, SEC Release No. 4048 (1948).

Even with Informed Consent, the Proposed Transaction Must Be Fair and Reasonable to the Client.  “One of the most stringent precepts in the law is that a fiduciary shall not engage in self-dealing and when he is so charged, his actions will be scrutinized most carefully. When a fiduciary engages in self-dealing, there is inevitably a conflict of interest: as fiduciary he is bound to secure the greatest advantage for the beneficiaries; yet to do so might work to his personal disadvantage. Because of the conflict inherent in such transaction, it is voidable by the beneficiaries unless they have consented. Even then, it is voidable if the fiduciary fails to disclose material facts which he knew or should have known, if he used the influence of his position to induce the consent or if the transaction was not in all respects fair and reasonable.”  [Emphasis added.Birnbaum v. Birnbaum, 117 A.D.2d 409, 503 N.Y.S.2d 451 (N.Y.A.D. 4 Dept., 1986).


Regardless of whether conflicts of interest are permitted under federal securities law for RIAs, or under state common law, there is both early authority and recent academic research indicating that investment advisers, to truly act in the best interests of their client, should avoid conflicts of interest to the extent reasonable to do so:
  • “[T]he Committee Reports indicate a desire to ... eliminate conflicts of interest between the investment adviser and the clients as safeguards both to 'unsophisticated investors' and to 'bona fide investment counsel.' The [IAA] thus reflects a ... congressional intent to eliminate, or at least to expose, all conflicts of interest which might incline an investment adviser — consciously or unconsciously — to render advice which was not disinterested.”  SEC v. Capital Gains Research Bureau, Inc., 375 U.S. 180, 191-2 (1963). 
  • “The IAA arose from a consensus between industry and the SEC that ‘investment advisers could not 'completely perform their basic function — furnishing to clients on a personal basis competent, unbiased, and continuous advice regarding the sound management of their investments — unless all conflicts of interest between the investment counsel and the client were removed.'” Financial Planning Association v. Securities and Exchange Commission, No. 04-1242 (D.C. Cir. 3/30/2007) (D.C. Cir., 2007), citing SEC vs. Capital Gains at 187.
  •  “The temptation of self-interest is too powerful and insinuating to be trusted. Man cannot serve two masters; he will foresake the one and cleave to the other. Between two conflicting interests, it is easy to foresee, and all experience has shown, whose interests will be neglected and sacrificed. The temptation to neglect the interest of those thus confided must be removed by taking away the right to hold, however fair the purchase, or full the consideration paid; for it would be impossible, in many cases, to ferret out the secret knowledge of facts and advantages of the purchaser, known to the trustee or others acting in the like character. The best and only safe antidote is in the extraction of the sting; by denying the right to hold, the temptation and power to do wrong is destroyed.”  Thorp v. McCullum, 1 Gilman (6 Ill.) 614, 626 (1844).
  • “Conflicts of interest can lead experts to give biased and corrupt advice.  Although disclosure is often proposed as a potential solution to these problems, we show that it can have perverse effects.  First, people generally do not discount advice from biased advisors as much as they should, even when advisors’ conflicts of interest are honestly disclosed.  Second, disclosure can increase the bias in advice because it leads advisors to feel morally licensed and strategically encouraged to exaggerate their advice even further. As a result, disclosure may fail to solve the problems created by conflicts of interest and may sometimes even make matters worse.”  Cain, Daylian M., Loewenstein, George, and Moore, Don A., “The Dirt on Coming Clean: Perverse Effects of Disclosing Conflicts of Interest” (2003).
These cases leave open the possibility that most conflicts of interest are prohibited for RIAs operating under state common law and the Investment Advisers Act of 1940. The purpose of avoiding conflicts of interest is, without a doubt, to maintain the complete objectivity of the investment adviser, and to avoid the conflict of interest even unconsciously affecting his or her judgment.


Without knowledge of all of the facts behind these “custodial support services” arrangements, it is impossible to know if the existence of these “custodial services support agreements” and the sharing of revenues by discount brokers to RIA firm arising from these agreements causes harm to the client.

It is easy to suspect that the practice of paying 12b-1 fees to the RIA firm is not in accord with the RIA firm's fiduciary duty. The services provided by the firm do not appear to be of the type which would result in each client who bears the burden of such fee receiving a benefit in accordance with the payment of such "extra" 12b-1 fees.

However, I cannot rush to judgment. More facts are required.

Unfortunately, Jed Horowitz may have uncovered just the tip of a very dark and ugly iceberg. Many RIA firms possess insurance agency affiliates, and often the investment adviser representatives recommend the purchase of costly life insurance and annuity products.

Moreover, In the world of dual registrants (i.e., where RIAs are jointly licensed as broker-dealer firms, or have an affiliated broker-dealer firm) many more pervasive conflicts of interest exist.  Just look at this disclosure, found in a large dual registrant's Form ADV, Part 2:

  • "Some of our Advisors may participate in incentive trips and receive other forms of non-cash compensation based on the amount of their sales through NFPSI, affiliated marketing groups or nonaffiliated marketing groups or product manufacturers. To the extent your Advisor participates in an incentive trip or receives other forms of non-cash compensation, a conflict of interest exists in connection with the Advisor’s recommendation of products and services for which they receive these additional economic benefits."

(There is no discussion in the Form ADV from which the above paragraph was taken as to how such conflict of interest was properly managed, to keep the best interests of the client paramount. Presumably such discussion is lacking because proper management of such an insidious conflict of interest was not even possible.)

The fact of the matter is, many firms - especially dual registrants - don't believe that the fiduciary duty to avoid conflicts of interest, or to properly manage conflicts of interest, is all that important. Many believe that once a conflict of interest is disclosed, that such disclosure provides a license to the advisor to engage in conduct which harms the client. Of course, nothing could be further from the truth.

We have a long way to go to create a profession. Especially as Wall Street and the insurance companies continue their assault on the SEC and DOL/EBSA, to not proceed with the application of fiduciary duties by regulation. (Alternatively, they desire a "new federal fiduciary standard" that involves disclosure only.)

In the meantime, I hope that a reader of this blog post will forward more information about these "custodial support service" arrangements to me (E-mail:, so that I can then provide an informed opinion on this matter.

1 comment:

  1. Thanks Dr Ron,
    Interesting piece. May I add an insight from down here in little old Australia: prior to the market turmoil of 2007-8 our law just said that disclosure of benefits from issuers of product or providers of platform and other services to the client was enough. As a result of a few horrendous cases which emerged after the crash, the Federal Government decided that as a result of these few cases disclosure didn't work, and that prohibition was in order. Accordingly, under a package of legislation called FOFA (Future of Financial Advice) 'volume-based commissions' from third parties where you're giving advice to a retail client are presumed to be 'conflicted remuneration' and are therefore banned (unless exempted or unless you can rebut that presumption). It also includes an obligation to act in the client's best interests - not a new concept to those of us in the stockbroking industry. FOFA starts July 1, 2013 so we're heading into an interesting phase. Cheers, Doug


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