Merrill Retention Package Angers FAs With “TRO” Language

Merrill Lynch financial advisors are worried about one paragraph in the retention contract they received last Friday, October 24—very worried. And it has to do with the so-called broker protocol agreement.

“The contract has an insidious clause in it that is essentially a way around the broker protocol,” says one recruiter, who spent Monday morning fielding scores of calls from angry Merrill brokers who read the eight-page contract over the weekend. The broker protocol is an agreement signed by dozens of brokerage and RIA firms. It dictates that a participating firm will not harass an FA that moves to another participating firm with legal injunctions like temporary restraining orders in an attempt to keep them from taking basic client data with them.

Merrill Lynch is a signor to the protocol. Bank of America is not. (Neither firm’s spokesperson was available for comment.)

The retention contract essentially states that the signing FA—should he decide to leave during the seven-year term of the contract—“agrees to not recruit any Bank of America employee, either directly or indirectly,” and also to “return to Bank of America all customer info and records in any shape or form and to be enjoined from using or disclosing all such records.” An FA who doesn’t abide by these rules could face a temporary restraining order, according to the contract.

“That is very important. No large financial advisor leaves a firm without his assistant or his team,” says the recruiter. One Florida-based million-plus producer confirmed that notion, saying, “If that’s the case, that’s a deal killer. Client service—especially right now—is the entire business. If I can’t bring everyone with me, I can’t leave,” he says. He added that he was having two different attorneys vet the contract before he signs it. All advisors have until November 14 to decide if they will sign the deal or not.

A Merrill advisor from Texas who produces over $1.75 million, says the protocol language alone is enough to cause him to consider switching firms. “Management hasn’t even mentioned it. It seems like they’re taking advantage of the situation,” he says. And while he thinks the upfront cash and deferred bonus money being offered by Merrill is pretty much the industry standard, for many Merrill advisors, the industry standard is not enough. “For years, we were told that we were above the standard,” he says. He’s not the only top-tier producer who’s unhappy, he says. “The reaction from other advisors has been mixed, even from producers who are in the top rung like I am.”