From the December 2009 issue of Investment Advisor • Subscribe!

Fiduciary Pushback

More On Legal & Compliance

from The Advisor's Professional Library
  • Client Communication and Miscommunication RIA policies and procedures must specify what type of communications should be retained. The safest course of action is for RIAs to retain all communications—to clients, from clients, and about client accounts.  To comply with fiduciary obligations, communications must be thorough and not mislead.
  • Privacy Policies and Rules Whether an RIA is SEC or state-registered, the firm must have policies and procedures in effect to protect clients’ privacy. Policies and procedures should explicitly require an RIA to send out its privacy notice each year.

The American College, which provides educational exams for the Certified Financial Planner mark and other planner designations, supports an amendment to the Investor Protection Act by Rep. Dan Maffei (D-New York) that would exempt some advice-givers from a fiduciary standard because "we don't believe that a 'one-size-fits-all' fiduciary standard is in the best interest of consumers," says Keith Hickerson, senior strategy consultant at the College. "That approach works fine with a fee-based business model, but it becomes much more challenging when an advisor is serving as a fiduciary for the client but is contractually obligated to primarily represent the company at the same time." An advisor who is an employee of a company has certain obligations to that company, Hickerson says, "such as to market, in some cases, a limited or preferred product set." This concept of a one-size-fits-all fiduciary duty "is even more problematic when it's considered for all intermediaries, not just brokers, dealers, and investment advisors, such as an insurance agent with risk management responsibilities, for example." Hickerson adds that the only way to implement a "fiduciary duty for all" is with a "fee-for-service model, and few consumers choose that approach. It has negative implications for cost and consumer access to the products and services they currently enjoy."

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