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.
- 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.
Industry officials are somewhat perplexed as to why Rep. Barney Frank, D-Mass., ranking member of the House Financial Services Committee, sent a May 31 letter to Securities and Exchange Commission Chairman Mary Schapiro, urging the agency not to put broker-dealers under the exact same fiduciary standard that advisors are subject to under the Investment Advisers Act of 1940.
In his letter to Schapiro, Frank (left) said that while Section 913 of Dodd-Frank gives the SEC the authority to establish a new fiduciary standard of care for broker-dealers, “the requirement that the new standard be ‘no less stringent’ …was not intended to encourage the SEC to impose the Investment Advisers Act standard on broker-dealers, but to ensure the new standard would not be a ‘watered down’ version of the investment advisors’ fiduciary standard.” Frank went on to say that if Congress intended the SEC “to simply copy” the Investment Adviser Act standard for brokers, it would have repealed the broker-dealer exemption.
The new fiduciary standard contemplated by Congress, Frank wrote, “is intended to recognize and appropriately adapt to differences between broker-dealers and registered investment advisors.”
Barbara Roper, director of investor protection for the Consumer Federation of America (CFA), said in an email to AdvisorOne that she’s “not sure what Congressman Frank was trying to achieve” with his letter to Schapiro.
The SEC’s study under Section 913 of Dodd-Frank, Roper said in her email, “made absolutely clear that the agency has every intention of pursuing an
approach that retains the ability of brokers to offer transaction-based advice compensated through commissions and to sell both proprietary products and from a limited menu of products."
“Moreover, [the SEC] has delayed dealing with principal trading restrictions so that they can be addressed as part of the larger fiduciary rule in a way that preserves brokers’ ability to conduct such trades. There is absolutely no reason to believe the SEC is going to diverge from that path, something I’m sure Congressman Frank is aware of.”
Lobbying efforts have no doubt heated up as Schapiro made clear recently that the agency would turn its attention to crafting a fiduciary duty for brokers after July 21, the date marking the one-year anniversary of Dodd-Frank.