Series 66

Client Communication and Compensation Issues - Introduction

Disclosure - The Brochure Rule
Investment advisors must disclose the nature of the relationship between the client and the IA. IAs cannot participate in, nor be compensated by, any percentage gains of a client's portfolio. These terms must be included within the investment advisor's contract.

The most important rule regarding disclosure is the brochure rule, which requires an IA to provide a written disclosure document to each investment advisory client or potential client. The IA can simply provide a copy of the Form ADV Part II, or create a brochure with substantially the same content. The document must include all of the following information:
  • Background information of the IA and any IARs

  • Services available and the fees for those services

  • Disclosure of any compensation received from third parties (such as commissions or referral fees)

  • Whether the IA exercises discretion over client funds

  • Types of clients for whom advisory services are provided, including any minimum dollar amount for assets to be managed

  • Disclosure of any affiliation with a broker-dealer

  • Any material legal or disciplinary action that occurred within the last 10 years

  • Any financial condition of the IA (such as bankruptcy) that might impair its ability to meet client commitments must also be disclosed if the IA:
    • has discretion over client accounts.
    • has custody of client monies or securities.
    • requires prepayment of more than $500 in fees, more than six months in advance.
The brochure must be provided at least 48 hours before entering into an advisory contract, or at the time of entering into a contract, if the client has the right to terminate the contract without penalty within five business days. Each year, the IA must deliver (or offer to deliver) its disclosure document to existing clients. Failure to meet disclosure requirements is considered fraudulent behavior.

Look Out!
It is crucial for you to know when the brochure must be given; the timing of this disclosure is frequently tested on the exam. Remember, it is not true that a brochure must be provided prior to entering into the contract; however, the contract must then explicitly offer the right to terminate without penalty within five business days. If this offer is not part of the contract, the brochure may not be provided at the time of signing the contract. Watch for answers such as "...if the IA states he/she has a right to terminate within five business days..." - this is incorrect, since a verbal statement is not sufficient.

Under the USA, an additional disclosure is required if the IA acts as principal for its own account or as broker for both an advisory client and another person on any securities transaction. In these instances, the IA must disclose (prior to completion of the transaction) in what capacity it is acting, and it must receive the client's written consent.

Wrap fee (or wrap account) programs require a special disclosure form instead of the Form ADV Part II. For these purposes, the SEC definition of wrap accounts does not include:
  • Managed account programs - Traditional portfolio management services offered by money managers

  • Mutual fund asset allocation programs - Bundled programs that charge a percentage of assets fee to manage a portfolio of no-load (or load-waived) mutual funds
The wrap fee disclosure must include the following information (where applicable):
  • The amount of the wrap fee, the services that are included, and whether the fees are negotiable
  • Any additional fees that might be required
  • What methods are used to select portfolio managers
  • What compensation is paid to the person who recommended the program

    Exam Tips and Tricks
    Be prepared to answer a number of questions on the "brochure rule", and be familiar with what must be included on Form ADV Part II. Here are two questions you might encounter on the exam:
  1. The brochure rule applies to:
    1. only discretionary advisory contracts.
    2. only written advisory contracts.
    3. only oral advisory contracts.
    4. both oral and written advisory contracts.
The correct answer is "d". The brochure rule applies to all investment advisory contracts.
  1. Under the brochure rule, the IA clients (or potential clients) must receive a copy of the brochure:
    1. at least 48 hours prior to entering into an advisory contract.
    2. within 24 hours of entering into an advisory contract.
    3. at the time of entering into an advisory contract, as long as the client can terminate the contract without penalty within three days.
    4. within five days of entering into an advisory contract.
The correct answer is "a". "c" is wrong because this provision only applies if the client can terminate within five days.

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