Compensation

How an adviser or agent gets paid shapes the advice they give. Understanding compensation models (and the conflicts each creates) is foundational to every ethical obligation that follows.

What Are the Common Advisory Fee Structures?

Investment advisers charge clients through several fee structures, each with different conflict profiles:

• Asset-based fees are the most common for advisory accounts
• The key advantage: the adviser's income rises when the client's portfolio grows, creating natural alignment

What Is a Wrap Fee Program?

A wrap fee program charges one bundled fee that covers advisory services, trade execution, and usually custody, rather than billing the client separately for each.

• The client pays a single percentage of assets and is not billed per trade
• The sponsor of the program is the firm that organizes it and collects the wrap fee, then pays the managers and the executing broker-dealer out of it
• A sponsor must deliver a separate wrap fee program brochure (Form ADV Part 2A, Appendix 1) in place of the standard brochure, disclosing the fee, what it covers, and what it does not

The conflict runs the opposite way from a commission account. Because execution costs come out of the sponsor's own fee, the sponsor profits by trading less. Under-trading a wrap account to protect the fee is often called reverse churning, and it is the mirror image of churning a commission account.

Exam Tip: Gotchas

• A wrap fee is not automatically the cheaper choice, and recommending one still requires suitability analysis. For a client who trades rarely, the bundled fee can cost more than paying per trade. The adviser must compare the two against that client's expected activity, not assume the wrap is better because it is predictable.
• The wrap brochure replaces the standard Part 2A brochure, it does not accompany it. A question describing a sponsor delivering both is describing more than the rule requires; a question describing a sponsor delivering only the standard brochure is describing a violation.

How Do Commissions Create a Conflict?

• Transaction-based compensation paid to broker-dealer agents
• Creates a potential conflict: incentive to recommend frequent trading or higher-commission products
• Must be reasonable and disclosed to the client

Exam Tip: Gotchas

• Fee-based vs commission-based is a favorite exam topic. Fee-based (advisory) aligns interests; commission-based (brokerage) creates a conflict because more trades = more income for the agent.

When Are Performance-Based Fees Allowed?

Performance-based fees are fees tied to capital gains or capital appreciation of client assets. They create a strong incentive to take excessive risk if the adviser shares in gains but not losses.

General rule: Performance-based fees are prohibited unless the contract fits one of the statutory exceptions below. "Retail" and "qualified client" are not opposite categories: a retail, natural-person client CAN qualify through the dollar thresholds, qualified-purchaser status, or the adviser-insider/employee path.

Exception for qualified clients (under the Advisers Act qualified-client exemption), which includes any of:

• AUM with the adviser: $1.4 million+ (immediately after entering the contract), OR net worth over $2.7 million (excluding primary residence)
• A qualified purchaser (a separate, higher standard used elsewhere in securities law)
• Certain adviser insiders (an executive officer, director, or general partner of the adviser) or a qualifying employee who has participated in the adviser's (or a similar) investment activities for at least 12 months

A qualified client may be charged a performance fee, and it does not have to be symmetrical: a share of gains only (for example, a 20% cut of the profits) is permitted.

Fulcrum fee (a separate, independent exception, NOT limited to registered investment companies):

• A fulcrum fee (symmetrical) structure is one permissible path when a performance fee is charged to (a) a registered investment company (a mutual fund), OR (b) any other client with more than $1 million under the contract
• The adviser shares proportionally in both gains AND losses relative to a benchmark: the fee rises for outperformance and falls for underperformance
• A further, separate exception lets a business development company pay up to 20% of realized net capital gains
• These are independent statutory exceptions, not the only option: a client with more than $1 million under contract who also meets the qualified-client dollar threshold may instead be charged an asymmetric (gains-only) fee under the qualified-client exemption

State-level performance-fee parallel: The corresponding NASAA Model Rule establishes performance-based compensation exemption requirements for state-registered advisers that mirror the federal qualified-client standard.

Exam Tip: Gotchas

• An asymmetric (gains-only) fee under the qualified-client exemption requires a qualified client, and "qualified client" isn't just the two dollar tests: it also covers qualified purchasers and certain adviser insiders/employees. The separate fulcrum-fee and BDC statutory exceptions do NOT require meeting this qualified-client test, and the BDC path is itself a gains-based (not symmetrical) fee that doesn't need qualified-client status.
• The fulcrum-fee (symmetrical) structure isn't limited to registered investment companies. It also covers any other client with more than $1 million under contract, plus a separate BDC 20%-of-net-gains path. Do not mark a gains-only fee to a qualified client as prohibited.

What Do the Pay-to-Play Rules Restrict?

Pay-to-play restricts investment advisers from receiving compensation for advisory services to government entities for 2 years after a covered associate makes a political contribution to an official who can influence the hiring of the adviser.

De minimis contribution thresholds:

• Official the contributor can vote for: $350 per election
• Official the contributor cannot vote for: $150 per election
• Contributions at or below the de minimis threshold do not trigger the 2-year ban
• Contributions above the threshold trigger the 2-year cooling-off period
• Strict liability: the intent of the donor does not matter, only the fact of the contribution
• An adviser that provides advisory services to a government entity, or whose covered investment pool has a government-entity investor, must maintain records of contributions by the adviser and its covered associates. This recordkeeping duty does not apply to advisers with no government-entity clients or investors
• New-covered-associate exception: a contribution made more than 6 months before someone becomes a covered associate does NOT count against the adviser, UNLESS that person solicits clients for the adviser after joining (only then does the fuller look-back reach that pre-hire contribution)
• Returned-contribution exception: a narrow cure exists if the adviser discovers a disqualifying contribution within 4 months and it didn't exceed $350, among other conditions

MSRB Pay-to-Play Rule: Similar pay-to-play restrictions apply to municipal securities dealers making political contributions to issuers.

Exam Tip: Gotchas

• The $350/$150 thresholds depend on voting eligibility, not on the size of the government account or the adviser's AUM.
• A brand-new covered associate isn't automatically caught by a contribution made 8 months before hire if they never solicit clients afterward: that's the 6-month exception, not the full 2-year window.

What Are Soft Dollar Arrangements?

Soft dollars occur when an adviser directs client brokerage (commission business) to a broker-dealer in exchange for research or other services, rather than paying cash for those services.

The soft-dollar safe harbor: Advisers may pay higher commissions for eligible research and brokerage services if the adviser determines in good faith that the commission is reasonable relative to the value received.

Three-step test for safe harbor protection:

1. The product or service must be eligible research or brokerage
2. It must provide lawful and appropriate assistance in making investment decisions
3. The commission must be reasonable relative to the value received

Conflict created: The adviser may choose a higher-cost broker because of soft dollar benefits rather than because it offers best execution for the client.

Disclosure: Soft dollar arrangements must be disclosed to clients in Form ADV Part 2A.

Exam Tip: Gotchas

• Office rent and furniture are NOT eligible under the soft-dollar safe harbor. These are the classic wrong answers. Research reports and analytical software are eligible.

How Must Compensation Be Disclosed?

• All forms of compensation must be fully disclosed to clients in writing before advice is rendered, as a material conflict of interest
• Includes: direct fees, commissions, referral fees, soft dollars, revenue sharing, 12b-1 fees
• The requirement is written disclosure, not client consent, for third-party compensation generally; consent is a separate, specific requirement for particular transaction types (principal and agency-cross transactions)
• Failure to disclose is a violation of fiduciary duty

What Should You Check on Exam Day?

• Can you rank the four advisory fee types by conflict level, and explain that commissions reward trading more while a wrap fee rewards trading less (reverse churning), so both need a suitability comparison?
• Can you state the qualified-client dollar thresholds ($1.4 million-plus AUM with the adviser, or more than $2.7 million net worth excluding the primary residence), plus the non-dollar paths (qualified purchaser, adviser insiders/employees)?
• Can you explain why the symmetrical fulcrum-fee structure (a registered investment company OR any client with $1M+ under contract, plus a separate BDC 20% path) is its own exception, not a second condition?
• Do you know the pay-to-play ban period (2 years) and the two de minimis thresholds ($350 if the contributor can vote for the official, $150 if not), plus the 6-month new-covered-associate exception (unless that person later solicits clients)?
• Do you know third-party compensation requires written disclosure rather than consent, and can you list what soft dollars may buy (research, analytical software, market data) versus may not (rent, furniture, travel)?