More On Legal & Compliancefrom The Advisor's Professional Library
- Do’s and Don’ts of Advisory Contracts In preparation for a compliance exam, securities regulators typically will ask to see copies of an RIAs advisory agreements. An RIA must be able to produce requested contracts and the contracts must comply with applicable SEC or state rules.
- Advertising Advisor Services and Credentials Section 206 of the Investment Advisers Act contains the anti-fraud provision of the statute and ensures that RIAs advertising and marketing practices are consistent with the fiduciary duty owed to clients and prospective clients.
Whatever happened to the repeal of the broker/dealer exemption allowing brokers to give advice to customers--but not require a fiduciary duty to those clients? The Financial Planning Association (FPA) sued the Securities and Exchange Commission (SEC) over this rule--and won a court ruling requiring the rule to be overturned--in 2007. But that has not happened. Why?
Wealth Manager talked about this with fiduciary expert Ron Rhoades, in mid-March and again in May. Rhoades is an attorney, and director of research, chief compliance officer and private wealth manager for Joseph Capital Management, LLC. The exemption allows broker/dealers to provide advice as long as the advice is, according to the SEC, "solely incidental to the conduct of his business as a broker or dealer and who receives no special compensation therefor."
There's a great deal of debate going on about whether broker/dealers should put their clients' interests ahead of their own if they provide advice. If they have discretion over client assets, of course, they must be fiduciaries, but what about when they provide similar advisory services to investment advisors?
During the week of May 10, the Senate will debate amendments to its version of financial reforms--the Restoring American Financial Stability Act (S.3217). The House passed its version of reforms in December with a requirement extending fiduciary duty for broker/dealers who provide advice to investors. The Senate version originally had even farther-reaching fiduciary requirements, but these was stripped out in lieu of a "study" to determine whether broker/dealers should be required to put investors' interests ahead of their own. Now, at least two amendments to reinstate the fiduciary requirement have been filed, with more possible.
One way to, in practical terms, extend the fiduciary standard to providers or advice is to eliminate the broker/dealer exemption. Hear the exclusive WealthManagerWeb.com Podcast: "Ron Rhoades on the Status on the Broker/Dealer Exemption."
Comments? Please send them to firstname.lastname@example.org. Kate McBride is editor in chief of Wealth Manager and a member of The Committee for the Fiduciary Standard.