Fiduciary Expert Ron Rhoades on Status of Broker/Dealer Exemption

The B/D exemption from fiduciary duty to customers lives on, but legislation may change that

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from The Advisor's Professional Library
  • Scope of the Fiduciary Duty Owed by Investment Advisors A fiduciary obligation goes beyond the suitability standard typically owed by registered representatives of broker-dealer firms to clients. The relationship is built on the premise that the advisor will always do the right thing for the person or entity receiving advice.
  • Client Commission Practices and Soft Dollars RIAs should always evaluate whether the products and services they receive from broker-dealers are appropriate. The SEC suggested that an RIA’s failure to stay within the scope of the Section 28(e) safe harbor may violate the advisor’s fiduciary duty to clients, so RIAs must evaluate their soft dollar relationships on a regular basis to ensure they are disclosed properly and that they do not negatively impact the best execution of clients’ transactions.
(This story originally appeared on WealthManagerWeb.com)

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 kmcbride@wealthmanagerweb.com. Kate McBride is editor in chief of Wealth Manager and a member of The Committee for the Fiduciary Standard.

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