More On Legal & Compliancefrom The Advisor's Professional Library
- The Custody Rule and its Ramifications When an RIA takes custody of a clients funds or securities, risk to that individual increases dramatically. Rule 206(4)-2 under the Investment Advisers Act (better known as the Custody Rule), was passed to protect clients from unscrupulous investors.
- Suitability and Fiduciary Duty Recommending suitable investments is more than just a regulatory obligation. Many investors bring cases claiming lack of suitability, so RIAs must continuously put the onus on clients to notify the advisor of changes in their financial situation.
Apparently I wasn’t clear enough in my last blog about the “authentic” fiduciary standard thing. I got the following e-mail string with from advisor who prefers to remain anonymous:
Him: “I do think that you should refrain from adding a modifier to the fiduciary term; it reminds me somewhat of the CFPBOS as they had licensee, professional or Certificant follow the CFP.”
Me: “Now, don’t get me started on the CFP Board, but I do agree about the CFP designation; any of those modifiers makes it seem less professional. As for fiduciary, like the Committee for the Fiduciary Standard, I'm concerned about a "fiduciary standard" that is greatly watered down, to the point of meaninglessness. Hence the "authentic" meaning of a real fiduciary standard, not one so lame that brokers can simply get on with biz as usual.”
Him: “I hear you, Bob, but if it is principles-based then it is up to the courts and juries to decide. Do you want it to be draconian or fair?”
Me: “It’s up to the courts only to the extent the law reads that way. So far, the Dodd-Frank Act has carved out proprietary funds and commissions, neither of which true fiduciaries can be involved in. If SIFMA has its way, we'll have another two dozen similar carve outs and brokers’ behavior won't change one bit.”
Him: “There you go again with an adjective: ‘TRUE’ Fiduciary. I am not 100% sure about the proprietary funds, though, being a disallowed product from a “true “ fiduciary. However it seems as if you are saying that a proprietary product is always inferior, I am not sure that is an accurate assumption.”
Notice how opponents of the a fiduciary standard for brokers are quick to broadly generalize (putting words like “always,” “never,” “every,” or “none,” in someone else’s mouth), in sophomoric attempts to make people who don’t agree appear ridiculous, and distract attention for the real point. In this case, “a proprietary product is always inferior” just sounds like it can’t be true. But of course that’s not the point. Proprietary products simply come with so many major conflicts of interest that it’s very hard to recommend them and still fulfill a fiduciary duty. And if a fiduciary does recommend one, the onus is on them to absolutely, positively show that the client is better for it.
But the real point is that to hear them tell it, SIFMA and the FSI embrace a “fiduciary” standard for brokers. It’s just that with all the carve outs, exceptions, and clever definitions, it’s not the same as the ‘40 Act standard, or any other established fiduciary standard. So, to be clear, those of us who advocate a ‘40 Act-type standard for all financial advisors feel the need to make that clear, through the use of adjectives such as “authentic,” “genuine,” or “true.” I’m sure we all wish that wasn’t necessary, but in the Real World…