A Custodial Referral Fee, a Podcast Testimonial, and a Check Made Out to the Adviser
Ben is a partner at Ridgeline Advisors, an SEC-registered investment adviser with $112 million in regulatory assets under management. Three items land on your desk in one week. First, the custodian offers Ben $4,000 a quarter through its 'advisor referral program' for every client he introduces to the custodian's new securities-based lending platform. Second, Ben wants to launch a podcast and has drafted episode one around a client's written testimonial - 'Ben turned my $800,000 into $1.6 million in four years' - and a chart showing the five-year return of six client accounts he selected because they performed best. Third, a client, Louise, is subscribing to a private real estate fund and hands Ben a $60,000 check made payable to 'Ben Ortiz' so he can 'wire it over faster.' Ben also prepares tax returns for four of his advisory clients for a separate fee and is a commissioned notary.
1. Analyze the custodial referral fee and the $60,000 check. What do you do with each?
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The check is the urgent one. Client funds must move directly from the client to the qualified custodian or the fund, never through the adviser. Accepting a check payable to Ben personally is custody of client assets, which triggers the surprise-examination or surprise-verification requirements of the custody rule, forces disclosure on Form ADV, and will almost certainly violate the firm's own policies and its E&O coverage. Louise should be told, in writing, to make the check payable to the custodian or the fund and to send it directly; if the subscription documents permit, use the fund's wire instructions verified by phone against a known number. Return the check the same day and document the instruction. Any prior pattern of holding client checks needs to go to compliance immediately - one incident can be a mistake, a pattern is a custody violation.
The referral fee is a conflict, not a windfall. $16,000 a year for steering clients to a lending platform is compensation from a third party connected to his advisory services. It must be disclosed on Form ADV Part 2A, disclosed to each affected client in writing before the recommendation, and consented to. Ben must also satisfy the duty of best execution and loyalty: if a client borrows against securities at a rate that is not competitive, the fee explains why the recommendation was made. Many firms prohibit these arrangements outright. Given the small dollar amount relative to the conflict, I would recommend declining it or donating it to the firm, and documenting that decision.
2. Evaluate the podcast under the SEC marketing rule. What can Ben say and what must change?
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The podcast is an advertisement. Under Rule 206(4)-1, testimonials are permitted - the old blanket prohibition is gone - but only with the required disclosures and only if they are not misleading. Ben must disclose clearly and prominently that the speaker is a current client, whether she was compensated, and any material conflict of interest. More importantly, he cannot use a statement he cannot substantiate, and 'turned $800,000 into $1.6 million in four years' implies a 18.9% annual return that will be read as typical.
The chart is the bigger problem. Six accounts hand-picked because they performed best is cherry-picking and is explicitly misleading. If any performance is shown, the rule requires one-, five-, and ten-year periods (or since inception if shorter) ending on the most recent practicable date, net of fees, and any related performance must include all portfolios that meet the criteria - a composite, not a beauty contest. Extracted performance must be shown alongside the total portfolio.
Practical steps: pull the testimonial or rewrite it without numbers; replace the chart with a compliant composite presentation prepared by compliance, or show no performance at all; establish written marketing policies and pre-approval; and retain the podcast episode and any social clips under the books-and-records rule, because a podcast with a three-year archive is a records obligation. State-registered advisers should check whether their state has adopted comparable marketing rules.
3. How should the tax preparation and notary activity be handled?
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Both are outside business activities and both create conflicts that must be disclosed, approved, and controlled - not simply tolerated because they are small.
Tax preparation. Preparing returns for four advisory clients for a separate fee means Ben wears two hats for the same people. It is an outside business activity requiring written firm approval and disclosure in the adviser's brochure supplement, and it must be disclosed to the affected clients along with the fee. Two specific risks: first, the tax work gives Ben access to information - cost basis, outside accounts, business income - that may reveal assets the firm is not managing, which is fine if disclosed and handled, but not fine if it is used to steer assets without disclosure; second, there is a self-review threat if Ben's tax advice depends on portfolio decisions he also earns a fee on. Some firms prohibit preparing returns for advisory clients outright; if Ridgeline allows it, require a written acknowledgment from each client and confirm the fee arrangement does not constitute additional compensation for advisory services that should be disclosed on the ADV.
Notary. Notarizing documents for clients, particularly anything touching the advisory relationship, should be prohibited. If a client's power of attorney or beneficiary form needs notarization, the adviser notarizing it concentrates authority and creates a document-integrity problem in exactly the situations - capacity disputes, beneficiary changes, elder exploitation - where the file will later be scrutinized.
Escalate all of this to the CCO with a written recommendation, and diary a follow-up in 30 days.