This blog heading is colloquially true, especially when it comes to Investment Adviser contracts. A recent review of compliance violations found- first of all- that 22% of advisers didn’t have contracts with their clients. A contract isn’t required unless a fee of some kind is collected from or owed by a client. So if you are paying a fee of any kind- flat, hourly, percent of assets, performance based -a contract is required.
So what devilish details should you watch for in an advisory contractual relationship? Here’s a short list:
- First and foremost: The absence of a contract altogether! Do you really want to work with and pay someone without formalizing rights and expectations on paper?
- Any provision that compensates the adviser based on “a share of capital gains upon, or capital appreciation of, the funds- or any portion of the funds -of the client. (Sec. 205(a)(1) of the Investment Advisers Act). I see these so-called performance fees in contracts all the time.
- Mandatory arbitration clauses. These have become so common that the average person doesn’t blink an eye signing them. By doing so, you’re giving up- in most cases -the right to sue individually or to be party to a class action against the adviser. My contract only has a voluntary mediation clause; we agree to sit down and talk about a dispute before consigning our souls to the lawyers. Never had to use it.
- Be aware of with whom it is you’re actually contracting. Is it the adviser himself or some obscure LLC or other obfuscatory entity that your adviser can hide behind? My clients contract with me, and only me, directly.
Your Constructive Comments are Welcome!