Do Too Many Rules Really Lead to Bad Advice?

Regular readers of this blog will probably not be surprised to hear that I have a few problems with Don Trone’s April 11 ThinkAdvisor post, “United Airlines and the Fiduciary Paradox.” In that story, Don criticizes the Labor Department rules, in part by contending that: “The vast majority of people would say that too many rules are a disincentive. The job gets done, but rarely is it a reflection of our ability to provide a margin of excellence.”

For starters, I’m not sure how Don knows what “the vast majority of people would say” about rules or any other topic, and he doesn’t say, either. But I can tell you from personal experience that there are probably “too many rules” about paying income taxes, yet they have never once created a disincentive in my mind to follow every one of them.

(Related: Why a Diluted Fiduciary Rule Is Bad for Advisors: Betterment, CFP Board)

More important, though, is Don’s use of the phrase “too many rules.” By definition, “too many rules” are too many rules, so it’s probably more accurate to say that everyone would agree that “too many rules” are a problem. He does tell us: “Herein is the fiduciary paradox; so that we can act in the best interests of others, we need to decrease the number and complexity of rules that require that we do just that.” Unfortunately, Don doesn’t address the issue of what constitutes “too many rules” in the case of the DOL’s new standards, nor what just the right number of rules might look like.

But before we get to those thorny issues, let’s explore his example of the debacle on United Express flight 3411 the other day. In case you’ve been consumed by Brad Pitt’s latest romance, three days ago, an elderly passenger already in his seat was forcibly taken off the plane by Chicago police to make room for a member of an off-duty United flight crew member. According to his lawyer, he suffered a concussion, a broken nose and lost two front teeth.

Don cites Patrick Smith’s AskThePilot.com blog to explain the “real” cause of this attack: “Everything is scripted and rote and procedural, and employees are often so afraid of being reprimanded for making a bad decision that they don’t make a decision at all, or will gladly hand the matter to somebody else [in this case to police] who can take responsibility.”

I think we can all agree this was a terrible incident that never should have happened. However, in my view, the root cause of this debacle (in addition to some overzealous police) wasn’t an overregulated flight crew, it was too little regulation: a void that allows airlines to draft passenger contracts that allow them to, among other things, arbitrarily take paying passengers off flights for any reason at their discretion. If passenger rights were better protected, this wouldn’t have been an issue. (Editorial note to Don: If you’re going to use a story to illustrate your point, make sure that it actually illustrates your point.)

Back to Don’s point, which seems to be, “So that we can act in the best interests of others, we need to decrease the number and complexity of rules that require that we do just that.” Is it just me (with my training in logic) or does this statement suggest that advisors would have the greatest ability to act in the best interest of their clients if there were no rules requiring them act as fiduciaries?                            

That, at least to my mind, begs the question of why we have fiduciary rules for investment advisors at all. Are we talking about some utopian world in which if left to their own devices all financial and investment advisors would act the best interest of their clients at all times?

If so, I’d have to point out that it’s not this world. We know this because there are financial advisors who are not required to act in the best interest of their clients at all times: And, while some undoubtedly do, we all know of far too many cases when many don’t. And the reason they don’t is primarily that under the “suitability standard” they are not required to consider costs and loads when recommending or selling financial products.

Now, I’ve heard from a number of independent RIAs that the DOL’s new rules really are so burdensome as to create a disincentive to recommend products that really would be in the clients’ best interests. This may be a case of “too many rules,” but more likely is simply the wrong rules.

How many would be the right number of rules? In my view, it would be just enough rules to prevent all financial advisors from recommending heavily loaded investment and insurance solutions to clients when they could have gotten the same benefits at a lower cost. That would encourage all advisors to truly do their best and most creative work.

--- Read Why Brokers’ Transition to AUM Fees May Trigger a Boom for Independent Advisors on ThinkAdvisor.

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