While in Manhattan on business last week, I happened to score tickets to the red carpet premiere of the new movie “Star Trek Into Darkness.” A funny thing happened as I stood in the front row of the paparazzi line amidst hordes of barely adult Chris Pine groupies. An older couple wearing shiny yellow Star Trek jackets were led in beside me. Maybe, I thought, they herded all the aging fans into a far away corner. But that wasn’t the funny thing.
This was: I turned to the gray haired fellow and started a conversation. In the course of the usual pleasantries, I told him I wrote about an esoteric financial topic that only a small niche market cares about. I added I thought it was important enough for everyone to care about, but admitted, in that “aw shucks” way I’ve come to perfect, they probably never would.
The man, definitely of sophisticated bearing, asked me the name of the topic. I said I write articles on all types of matters pertaining to “fiduciary,” but then quickly allowed him to deny any knowledge of the significance of the word.
Now, here’s where that funny thing happened. He told me he knew precisely what it meant, and he agreed more people should. He also blamed the industry for destroying the true meaning of the word. At first I thought his awareness of fiduciary duty made sense. “Star Trek,” after all, is replete with examples of Kirk and Spock et al subordinating their own interests to the best interests of others. Isn’t that the very definition of “fiduciary duty”? (Those interested in learning more about the “Star Trek”-fiduciary connection are encouraged to read “401k Plan Sponsors, Star Trek and Fiduciary Duty,”FiduciaryNews.com, May 14, 2013).
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Still, I asked him what he did, figuring, despite his outward appearance, he must have been involved in the financial industry. No. He was a design engineer. In fact, he was a very good one. You know those technical Oscars they hand out? He won one during his stint as a special effects guy in Hollywood. (In other words, he was no mere fan of the “Star Trek” franchise, he was a somebody who once worked in it and could still count those who continue to work in it among his friends.)
As I learned more of his story, I began to understand his skepticism regarding the word “fiduciary.” He knew very well what “fiduciary” meant. And I mean the legal definition, not the philosophical one fiduciary advocates often refer to. He knew it meant more than merely the fuzzy “putting the client first.” He knew it meant this measurable fact: actively refusing to engage in self-dealing transactions.
He knew because he’s been victimized by a FINO — fiduciary in name only. In the increasingly Orwellian world we live in, words have been stripped of their true meaning, making it easier for modern-day snake oil salesmen to trick unassuming consumers. This has been going on for some time in the financial services industry. The DOL itself currently permits a fiduciary to engage in an otherwise self-dealing transaction through the Frost National Bank Advisory Opinion Letter.
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With the Frost Letter exemption, a FINO can legally claim to be a fiduciary and still engage in self-dealing transactions a true fiduciary would normally be prohibited from engaging in. This is the problem with the word fiduciary. Regulators, who normally place the best interests of the common investor first, have decreed they will instead support the best interests of Wall Street. They’ve openly declared a “fiduciary” no longer needs to place the client’s interest first.
Like my new friend on the “Star Trek” red carpet line, the typical investor or 401(k) plan sponsor probably won’t discover this until it’s too late. And then, after all the horses have fled the proverbial barn, the FINO, with the regulators on his side, will say “it was all legal.”
If being a fiduciary is all about building trust, what happens when no one trusts the word fiduciary?