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.
- Pay-to-Play Rule Violating the pay-to-play rule can result in serious consequences, and RIAs should adopt robust policies and procedures to prevent and detect contributions made to influence the selection of the firm by a government entity.
Lots of good comments on my Aug. 30 blog (The Wall Street Journal’s Contribution to the Fiduciary Argument), and not all of them came from folks who agree with my point. While, “NotEntitled” was also clearly not a big fan of my position, he or she did make two valid points that are worth exploring.
The first point succinctly captures the essence of the entire current fiduciary debate:
“Brokers are brokers. Advisors are advisors. Consultants are consultants. Some professionals are all of the above. But not all brokers are providing advice or consulting. So why force all sales agents to adhere to a fiduciary standard?”
If it were only this simple. But, come on, we all know that it isn’t, don’t we? In addition to the practical experience of virtually everyone reading this (including me), study after study has demonstrated well beyond a shadow of a doubt that the vast majority of retail investors do not understand that brokers are, in fact, simply salespeople who do not have a legal duty to act in their clients’ best interests.
What’s more, in my years of experience covering advisors and brokers, I’ve come to realize that this “confusion” is no accident: from titles such as “financial advisor,” “trusted financial advisor,” “financial consultant,” “wealth manager,” and “financial planner,” to their multimillion dollar ad campaigns, Wall Street appears to do everything in its considerable power to confuse the issue.
While I’ve grudgingly admitted that, if worded properly, disclosures spelling out the differences between brokers and advisors could solve the problem, I don’t think anyone outside of SIFMA, FINRA, and the SEC truly believes that clear-enough wording will ever be forthcoming. So the simple answer to NotEntitled is that if securities salespeople would only act like salespeople, we wouldn’t be having this discussion.
The second good point raised by NotEntitled is this comment about why high fees may not be a bad thing:
“…it very well could be appropriate if the broker/advisor/provider is providing services that are expensive to provide, and maybe the plan sponsor ended up with a much better plan design that saves the company more than the [high fee]. Fiduciary responsibility mandates that the plan/participants/sponsor are charged APPROPRIATE fees, not the cheapest fees.”
Hard to argue with that. Still, the question remains of whether the company or the plan participants did,
The fact is that only under a fiduciary standard do “reasonable fees” become an issue at all. Which raises the question: “Just what are we trying to protect retail investors from?” To hear the Wall Street Journal tell it, they only need to be saved from being “systematically cheated,” which doesn’t seem to include higher fees. But how can it not?
If someone cons you into paying more for a car than it’s worth, or more to build a house than it should have, won’t you feel cheated? So why won’t clients feel the same way about recommendations from someone they believe is representing them? The obvious answer is that they would, if they knew what we know. But they don’t—which is why they need fiduciary protections.