More On Legal & Compliancefrom The Advisor's Professional Library
- Client Communication and Miscommunication RIA policies and procedures must specify what type of communications should be retained. The safest course of action is for RIAs to retain all communicationsto clients, from clients, and about client accounts. To comply with fiduciary obligations, communications must be thorough and not mislead.
- 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.
Elisse Walter, chairwoman of the Securities and Exchange Commission, told members of the Senate Banking Committee on Thursday that the SEC is “giving serious consideration” to its rule to put brokers under a fiduciary mandate, and confirmed previous reports that the agency will move forward with a request for public input on the rule.
Sen. John Tester, D-Mont., said to Walter: "I think this [rulemaking] should be a priority because it is a benefit to investors. You should push it."
Walter (right) told Tester, the newly named head of the Subcommittee on Securities Insurance and Investment, that she believed the issue was "very important," and said that assessing the rule's cost implications was "the right thing to do."
After gauging costs, she said, the SEC should "take a hard look at the different rules that are applicable" to advisors and broker-dealers "to see where they should be harmonized."
Noting that the agency has “extensive experience in the regulation of broker-dealers and investment advisors,” Walter told lawmakers in her testimony regarding the agency's progress in implementing Section 913 of Dodd-Frank that SEC economists continue to review “current information and available data about the marketplace for personalized investment advice” regarding investment advisors and broker-dealers, and the “potential impact of the [SEC] study’s recommendations."
The SEC, Walter said in her remarks, believes “the public can provide further data and other information to assist us in determining whether or not to adopt a uniform fiduciary standard of conduct or otherwise use the authority provided under Section 913 of the Dodd-Frank Act.” She said the SEC would likely seek public comment in the "next month or two."
Specifically, Walter said the SEC is drafting a public request for information to obtain data specific to the provision of retail financial advice and the regulatory alternatives. “The request aims to seek information from commenters—including retail investors, as well as industry participants—that will be helpful to us as we continue to analyze the various components of the market for retail financial advice,” she said.
Walter testified along with other financial regulators during a hearing titled “Wall Street Reform: Oversight of Financial Stability and Consumer and Investor Protections.”
Before turning to the list of Dodd-Frank-related rules that the SEC has passed, Walter told lawmakers the agency lacked the resources to fully implement the Dodd-Frank mandated rules.
“…It has been clear to me from the outset that the Act’s significant expansion of the SEC’s jurisdiction over OTC derivatives, private fund advisors, municipal advisors, clearing agencies, and credit rating agencies, among others, could not be handled appropriately with the agency’s previous resource levels without undermining the agency’s other core duties," she said. "This is proving especially true as we turn from the first step of rulewriting to efforts to support and monitor implementation and the ongoing process of examinations and enforcement of those rules.”
Enactment of President Barack Obama’s budget request for fiscal 2013, she said, would fill “the remaining gaps.” The request would give $1.566 billion, and permit the agency to hire 676 additional people, Walter said. “A number of these new hires are needed to focus on enforcement, examinations, regulatory oversight, and economic and data analysis related to the Act.”
To date, the SEC has made “substantial progress in writing the huge volume of new rules” under Dodd-Frank, Walter said, as well as in conducting the various studies required by the Act.
Of the more than 90 Dodd-Frank provisions that require SEC rulemaking, she said, the SEC has proposed or adopted rules for more than 80% of them, and also has finalized 17 of the more than 20 studies and reports under the Act.
“While this has been a challenge,” she said, "the considerable progress the commission has made is a direct result of the thoughtful, thorough and professional efforts of our staff, whose efforts in fulfilling the Dodd-Frank Act mandates have come in addition to carrying their normal workloads.”