A BD Rep Surveys His Clients: The Fiduciary Issue Crystallized

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  • Nothing but the Best Execution Along with the many other fiduciary obligations owed by RIAs, firms owe a duty to seek best execution of clients’ transactions.  If they fail to do, RIAs violate Section 206 of the Investment Advisers Act.
  • Conducting Due Diligence of Sub-Advisors and Third-Party Advisors Engaging in due-diligence of sub-advisors isn’t just a recommended best practice— it is part of the fiduciary obligation to a client. An RIA should be extremely reluctant to enter a relationship with a sub-advisor who claims the firm’s strategy is proprietary.

Here’s an exchange I recently had with an independent registered rep, who has been a friend of mine for a long time. I hope you’ll find this as enlightening as I did. 

RR: “I recently sent out a client satisfaction survey to my rather well-educated clients (if I do say so myself) explaining the fiduciary vs. suitability standard and asked if they were aware of which standard applied to our relationship and if that mattered to them. So far the answers are all: ‘Don’t know and don’t care.’”  

Me: “Thanks for the email. I'd love to see what you actually sent to your clients. Did you really explain to them that as a registered rep under the ‘suitability standard’ you are legally working for your BD and therefore are legally required to represent its interests, rather than those of the clients? And did you go on to explain to them that under a fiduciary duty to your clients, you would be legally required to represent the client's interest, ahead of your own, or any other institution, including your BD? That's the reality, and my sense is that not one financial consumer in 10,000 truly understands this and its ramifications for who's really looking out for their best interests.” 

RR: “Legal compliance didn’t allow me to go into the detail of the Suitability standard as I was not allowed to infer any relationship was better than any other. I got really upset at this and other restrictions and wrote an email to my BD’s head of marketing review—and this time, I sent it. The prior two or three emails I have written over the years, I deleted after venting. I have had one long phone call with the head of advertising compliance, with another scheduled this week, so they are being responsive, but they feel their hands are tied by FINRA in most instances.” 

Me: Frankly, I can’t think of anything to add here; his response seems to illuminate the problem with our current system far better than I could. 

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