Written by: Michael Conlon
Registered Investment Advisors have fairly broad discretion in constructing their trading practices to their specific business model and service offerings.
In doing so for your firm it is your responsibility to explain these trading practices in your Form ADV and compliance manual, and review the related policies and procedures in place to ensure they are followed consistently.
In addition, certain trading practices may create conflicts of interest which must be disclosed appropriately, and may require certain procedures in your compliance program to prevent or mitigate these conflicts from impacting your clients. Regulators look specifically for conflicts of interest between your firm, your employees, and your clients to ensure you are handling them appropriately and upholding your fiduciary duty.
Trading Practices & Conflicts In a Nutshell
Your RIA firm must disclose to clients specific details on your conflicts of interest and other relationships that may create influence decisions made when providing client services. Below we describe the specific trading-related practices and conflicts that you may need to disclose in your Form ADV and include related policies and procedures in your compliance manual.
If your firm places trades which result in your firm or its principals receiving an economic benefit from the trades, you must disclose this as a conflict related to your broker-dealer affiliations in your Form ADV Part 2A.
Regulators expect a higher level of care to be exercised when the broker-dealer and adviser have a relationship “so that the adviser’s fiduciary obligation to act solely in the interest of his beneficiary is satisfied.” The burden of justifying paying a commission rate in excess of the lowest rate available is particularly heavy. Placing trades with an affiliated broker-dealer means that you must make the good faith judgment that this broker is uniquely qualified to obtain the best price on these trades and that the trading costs are at least as favorable as those charged by other qualified brokers.
Client Directed Brokerage
There may be circumstances where a client asks your firm to direct their trades to a certain broker-dealer. Since this typically results in extra fees and costs in managing such an account, you will want to obtain certain documentation where the client has acknowledged this consequence in writing. You can accomplish this by obtaining written instructions from the client regarding the directed brokerage acknowledgment either as part of the client’s investment advisory agreement or by separate written acknowledgement signed by the client and a representative of the firm.
Client directed brokerage transactions may result in the client receiving a price that is less favorable than the price your firm could obtain by batching their trade along with those of other clients. They may also result in higher commissions or less favorable net prices than might achieved if your firm was empowered to select the broker-dealer. If you accept client directed brokerage, this must be disclosed in your Form ADV Part 1 and the consequences described above must be disclosed to clients in Form ADV Part 2A.
Your RIA firm may direct brokerage transactions to broker-dealers who provide research services to your firm consistent with the safe harbor provision under Section 28(e) of the Exchange Act of 1934.
Only research products and services that are used for the benefit of clients may be obtained with client commission dollars. The amount of the commission paid must be reasonable in relation to the value of the research services provided by the broker-dealer. By obtaining soft dollar products, and services via soft dollars, it is expected that you are doing so to reduce expenditures you would otherwise obtain via “hard dollars”.
When utilizing soft dollars, your firm will be expected to maintain a complete set of books and records that quantify soft dollar commissions paid and the nature of all services received.
Principal and Agency Trades
Principal and agency transactions are two examples where your firm has an interest in the circumstances or outcome of the client trades that then becomes a conflict of interest in the discretion or recommendation of that transaction.
Principal trades involve securities transactions in which your firm has a proprietary interest in the securities being traded. Principal transactions must be disclosed to the client in writing prior to the completion of the transaction. Written client consent must also be obtained. This consent may be obtained after execution, but prior to settlement, of the transaction.
Agency trades involve securities transactions in which your firm acts directly (or through an affiliate) as the client’s advisor and as broker for the person on the other side of the transaction. Advisors may execute agency trades as long as they can show that they are in the best interests of the advisory clients involved in the transaction.
For both principal and agency trades, your firm must disclose this in Form ADV Parts 1 and 2A and maintain appropriate documentation to support these transactions.
Cross trades are when clients of the same portfolio manager exchange the same security, that is, the buy and sell are offset without the need of going to the exchange for a participant in the trade. It is permissible as long as it is recorded as a cross trade by the broker and manager and providing fair market value, and that it was in the best interests of each participating client.
Trade away transactions may become warranted when your firm’s existing broker-dealer does not have access to markets that are suitable for your particular clients. As data regarding execution becomes more tangible through technology, best execution gains more transparency and may create obligations on advisors to select other advisors or relationships to ensure they uphold their client duties.
For both cross trades and trade away relationships, your firm must disclose this in Form ADV Parts 1 and 2A and maintain appropriate documentation to support these transactions.
Absorbing Transaction Costs
In some instances, RIA firms absorb ticket charges or other transaction-based costs for client trading, typically known as a wrap program. If you absorb ticket charges for any of your clients this may present a conflict due to your incentive to minimize trading volume. Wrap program information must be disclosed in your Form ADV Part 1 and 2A.
Through the Regulator’s Eyes
Regulators operate under the premise that transaction costs and commissions paid are the client’s property, so you must treat them as such and ensure that the benefits of these ultimately benefit the client and contribute to your fiduciary duty.
When circumstances exist that would alter your objectivity with respect to trading, such as noted the conflicts described above, these must be clearly disclosed as well.
CCO Best Practices for Trading Practices and Conflicts
- Review your firm’s Form ADV Part 1 and 2A to confirm that each of these trading practices are appropriately disclosed.
- In instances where conflicts of interest result, confirm that they are properly disclosed in Form ADV Part 2A in a way that identifies the conflict, why it is a conflict, and what procedures you have in place to prevent or mitigate these conflicts.
- Maintain books and records that document all client directed brokerage, soft dollar usage, principal trades, agency trades, cross trades, and trade aways. Each must be maintained for at least five years, two of which must be immediately accessible by your firm.
- For trades placed through an affiliated broker-dealer, maintain documentation that demonstrates the rationale for selecting this affiliate over other qualified broker-dealers.
- If you utilize soft dollars, maintain a soft dollar policy that explains the rules related to paying for research with client commissions, the actual amounts paid and the specific services received.
 Securities and Exchange Commission, News Digest, Issue No. 72-89, May 10, 1972.
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