Fiduciary advisors are in peril. The brokerage industry is smothering fiduciary advisors in a well-oiled Wall Street-Washington lobbying campaign. Their strategy: persuade policymakers and regulators that “best interest” advice harms investors, while higher cost, opaque products sales help investors.
Amazingly, their strategy is working.
Key policymakers seem to believe that established law and precedent has been turned upside down; i.e.: fiduciary duties are harmful to our health and warrant a warning label. As such, fiduciary rulemaking at the DOL is gasping for air. By all signs, no majority of SEC Commissioners (three of the five) support a meaningful and true fiduciary rule for broker-dealers.
Meanwhile, FINRA, the brokerage industry’s private self-regulating organization, while discussing fiduciary issues, remains true to its brokerage heritage and ambitions to regulate fiduciary advisors, or RIAs. Encouraged by recent developments, various schemes to promote FINRA’s takeover of RIAs exams circulate in Washington. All share one element: granting FINRA more influence to extend brokerage sales rules over RIAs.
This lobbying campaign is a blunt attack on the very rationale for the Advisers Act of 1940: the unquestioned need to protect investors and true investment advisors by separating, in law, securities sales from investment advice. Each has a vital role in the capital markets. Experience teaches they must be kept separate in the minds of investors to be effective in practice. This should not be controversial. There is no serious debate on this point in other professions; medical doctors do not lobby Congress in the public arena for more robust sales rules.
Brokerage sales rules are no substitution for fiduciary advisor best practices. They are starkly different. Explicitly, all brokers say they do right by investors and, clearly, many brokers do so. Implicitly, however, a very different picture emerges as industry lobbyists vigorously defend and protect conflicted advice, opaque fees and expenses, and misleading or incomplete or incomprehensible communications. The tone from the top is clear.
In some respects, investors are ahead of RIAs in recognizing the problem in the marketplace.
Investors are disaffected with financial services and financial institutions generally. They are of two minds on “advisors.” While some research suggests investors are satisfied, other research suggests this satisfaction is very thin and the disaffection with Wall Street has seeped into investors’ views of advisors.
So industry consultant Chip Roame is on to something, when he says of advisors and brokers, that the public believes “The whole industry is evil… you are lumped in with Madoff.” Further, according to researcher Bob Fronk of Harris Interactive, investors know what to do. “One thing the public is screaming out loud and clear about financial services is: be more sincere, be more honest, be more transparent.”
Investors do not distinguish advisors from brokers in their titles. Yet, and this is a big “yet,” as Fronk’s remark suggests, they do distinguish sales practices from advisory services. They distinguish opacity from transparency and straight talk from mumbo jumbo.