More On Legal & Compliancefrom The Advisor's Professional Library
- Nothing but the Best Execution Along with the many other fiduciary obligations owed by RIAs, firms owe a duty to seek best execution of clients transactions. If they fail to do, RIAs violate Section 206 of the Investment Advisers Act.
- 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 RIAs failure to stay within the scope of the Section 28(e) safe harbor may violate the advisors 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.
When it comes to extending a fiduciary standard to brokers, which the SEC will consider in a rulemaking process under Section 913 of Dodd-Frank, there are some who argue that doing so will limit client choice when it comes to the products that would be available to clients, and client choice when it comes to how, and how much, they pay for those products. Elliot Weissbluth is not one of those people.
In fact, Weissbluth (left), the CEO of HighTower Advisors, says that the “choice” arguments presented by groups like SIFMA are “intellectually dishonest and vacuous.” Saying the problem is not one of client ignorance, he argues instead that there is “massive uncertainty and confusion” among clients as to what they can and can’t expect from their broker advisors, attributing said uncertainty and confusion to long-term, ongoing “deception” that you can “lay at the feet of Wall Street.”
SIFMA authorized a study by the consulting firm Oliver Wyman late in 2010 that concluded there would be “reduced product and service availability and higher costs under a uniform standard of care for investment advisers and broker dealers that does not appropriately recognize the important distinctions among business models.”
But another study conducted among AdvisorOne RIAs and broker readers in conjunction with Fi360 found not only that 95% of respondents believed that “investors do not “understand the differences between brokers and investment advisors,” but 74% do not believe that “it costs investors more to work with fiduciary advisors than brokers when all costs to the investor (not only the advisor’s compensation) are considered.” As for product and service, 68.6% of AdvisorOne’s respondents say they do not “believe a fiduciary duty for brokers who provide advice would reduce product and service choice for investors, while 66.9% didn’t believe a “fiduciary standard of care for brokers would price some investors out of the market for advice.”
Weissbluth acknowledges that the Wall Street firms have a “breadth and width” that smaller RIA firms can’t provide when it comes to access to investing products and getting the best price for those products, but “without a fiduciary duty, that sophistication benefits the firm and its employees; not the investor, not the client.”
A fiduciary standard, he says, is a “fairly black and white concept: Do you put your clients interests first, or not?” He also dismisses out of hand the concept that brokers could wear two hats, one when they’re selling product and the other when they’re providing advice. “Doctors take a Hippocratic oath. What if a doctor said, ‘Well, sometimes I follow the oath, and sometimes I don’t?’”
He points to his own firm as a model for what the Wall Street firms could do, saying “we’re succeeding with 20 [former] wirehouse teams that trade with The Street the same way they did before.” He says his firm also allows clients to choose whether they want to pay a fee for managing assets or the ticket charge for buying a given product. It’s a simple case, he says, of "uncoupling servicing the client from manufacturing and distribution” of the product. HighTower, he argues, is “the only firm that could comply today with Dodd-Frank without sacrificing choice," making it the “proof case that you can provide sophisticated choice to clients, under an unconflicted fiduciary standard.”