How Brokers May Spin New Fiduciary Rules

The brokerage industry fought the new fiduciary rules from the Labor Department every step of the way.

The battle appears to be over, and it ended in something of a draw. The brokerage industry may not like the new rules for retirement accounts, but it is still free to practice business as usual in taxable accounts. And many mom-and-pop investors remain as confused as ever about whether their broker has a conflict of interest.

These new rules address conflicts of interest from brokers and other financial professionals who offer retirement advice by requiring advisers to abide by a fiduciary standard when managing assets in retirement accounts.

Many laypeople are confused about what this means and which professionals have a fiduciary responsibility to their clients. In its simplest form, a fiduciary standard means that professionals subject to the standard must put clients’ best interest before their own profits when offering financial advice or making investment decisions. For instance, a fiduciary is not only bound to offer appropriate investment choices, but must take special care to avoid conflicts of interest whenever possible and to disclose potential conflicts when they arise. The Investment Advisors Act of 1940 specifically defines a fiduciary’s role, and the Securities and Exchange Commission takes care to enforce the standard thoroughly.

Until the new rules took effect, SEC-registered investment advisers were bound to this standard, but broker-dealers, insurance agents and certain other professionals providing investment advice were not. Instead, they were bound by the less strict suitability rule. This rule requires brokers to make recommendations consistent with the customer’s best interests, meaning they cannot recommend totally inappropriate investments. But they are not bound to place their own interests below the client’s, which allows them to favor more expensive investments or to trade more frequently to generate more commissions. Nor are they required to disclose conflicts of interest.

The new rules subject brokers to the fiduciary standard that applies to RIAs, but only where retirement accounts are concerned. For taxable accounts, the suitability rule still applies.

A well-publicized poll from a few years ago found that many people erroneously believe that financial advisers at brokerage firms are fiduciaries; 76 percent of those surveyed thought so. (1) The same survey suggested that most investors were not aware that different standards applied to investment brokers and registered investment advisers.

Many brokers will take advantage of their clients’ confusion, apathy or both in order to put these mandated changes in the best possible light. For example, a couple I know works with a broker at a major wealth management company. The broker manages their portfolio, including retirement accounts, meaning he is subject to the new rules. He told his clients that the investments in their retirement accounts had been underperforming, so he would be moving assets into better performing and less expensive alternatives.

I asked if the broker had mentioned any other reason for the change, since it seemed obvious to me that the broker was acting in response to the new Labor Department standards. No, I was told, he mentioned no other reasons.

It is not hard to see why a broker would prefer to informally present such a change as his own good idea. We all want to present our professional services in the best possible light, and of course he would prefer to be the hero saving a client money rather than the villain forced to put the client’s interests first because the government said what he’d been doing was no longer legal. Failing to talk through the new regulations is not outright deceptive; many clients may not be interested in a detailed explanation. And the changes are bound to be mentioned in written disclosures, however voluminous they may be. But this does not help investors get a better grip on the situation.

The incident highlights a real, ongoing issue in the world of personal finance, one that the new rules do not effectively address. For many consumers, it is unclear which financial professionals are sitting on their side of the table and which are salesmen first and foremost. Everyone wants to appear helpful; many of the terms and titles tell consumers little unless they dig further. “Financial adviser” can mean a lot of different things, depending on who the adviser works for and which exact services the firm provides.

The Labor Department’s rules require advisers to commit to fiduciary standards, disclose any possible conflicts of interest and institute policies to mitigate any conflicts that do arise. But how many advisers will take the time to make sure clients read and understand the documentation, rather than just flagging the places the client needs to sign what they assume is standard legalese?

For now, proactive clients will still be best served by directly asking their advisers, or potential advisers, whether they are fiduciaries. In fact, it should be one of several questions, such as how often investments are monitored, what the adviser’s underlying investment philosophy is and how their fee structure works. But the concern behind the Labor Department’s new rules is that many investors do not know to ask these questions in the first place.

While the new rules are helpful, they are not enough to ensure that consumers can make the best possible decisions. Consumers need actual education on what a fiduciary is, whether or not their adviser is one and why the distinction matters. We cannot reasonably expect nonfiduciary advisers to voluntarily provide such an education if they are not required to do so.

A Higher Standard For Retirement Accounts

Unless you offer financial advice for a living, it is likely you did not notice an announcement from the Labor Department in early April.

But if you pay a professional of any stripe to manage your retirement accounts or advise you on how to manage them, you can be sure your adviser noticed. The long-anticipated new rule will reshape the way the financial industry offers retirement advice, in ways both major and minor.

Here are the basics of the new fiduciary rule that consumers should understand.

Brokers and other financial professionals are sometimes allowed to earn commissions and other forms of compensation that create potential or actual conflicts of interest. Their advice simply has to meet the test of “suitability” – that is, they must suggest investments that are not wildly out of line with a customer’s needs or situation. As long as the suitability requirement is met, brokers operating under these rules can favor products that result in higher commissions or bonuses – and they often do.

The new rule requires anyone offering financial advice about a customer’s retirement account to meet the stricter fiduciary standard, meaning they must put clients’ interests ahead of their own. Under the fiduciary rule, brokers will be required to disclose the commissions they charge in order to help protect investors from conflicts of interests that could arise if brokers receive more compensation for recommending their company’s proprietary investment products over competitors’ to retirement account investors. Not only will they have to disclose such commissions; brokers will also need to be able to demonstrate their advice is in the client’s best interest.

“Best” is a fairly nebulous concept. After all, it would not be reasonable to expect advisers to have an omniscient understanding of all potential products the world over, and to evaluate the single best course of action for a particular client. In practice, the fiduciary rule means that an adviser should offer advice that a similar prudent professional would make in his or her place with the same level of knowledge and care for the client’s interests.

This is, of course, a simplified explanation. The final rule is nearly 60 pages long, with many additional supporting materials.

The new rule only applies to retirement accounts. Taxable investment accounts are, at least for now, subject to the old suitability rule unless the adviser is held to the fiduciary standards for other reasons (such as the Securities and Exchange Commission’s rules for registered investment advisers). This means that some firms will either have to separate out clients with retirement accounts from those without or extend their fiduciary standard beyond what is technically required to cover all clients.

For institutions whose employees offer advice on retirement accounts, the Labor Department rule requires a Best Interest Contract agreement with clients. The contract will acknowledge the adviser’s status as a fiduciary and lay out a commitment to provide advice in the client’s best interest, to charge no more than “reasonable” compensation and to make no misleading statements about any conflicts of interest. For new clients, the Best Interest Contract can be, and almost certainly will be, included with the general paperwork involved in establishing a working relationship with the firm; for existing clients, a contract must be in place before any new advice that would be covered by the rule is offered.

Additionally, financial firms will need to take steps to fairly disclose any conflicts of interest, along with any fees and compensation. They will have to refrain from providing any incentive for advisers to act contrary to their clients’ best interests, such as quotas or bonuses for particular products. And firms will need to implement policies designed to prevent violations of the new standards, including a person responsible for preventing material conflicts of interest.

The Labor Department itself can only enforce the rule as it pertains to plans covered by the Employee Retirement Income Security Act, usually shortened to ERISA. For IRAs and other retirement savings accounts not covered, enforcement technically falls to the Internal Revenue Service. For either sort of plan, however, the new rules prohibit financial institutions from requiring consumers to fully surrender the right to pursue a class-action lawsuit. Labor clearly plans to use the potential for a lawsuit by clients themselves as a major deterrent.

The new rules take effect on April 10, 2017, but some of the more detailed requirements will not be enforced until January 1, 2018. During this generous transition period, we will doubtless see some debate over how the rules should be implemented. It is possible that larger brokerage firms or other affected companies may push back in hopes of getting the rule jettisoned outright, but the Labor Department has already incorporated many firms’ requests, such as an extended implementation period and grandfathering existing investments in certain cases. As Jeff Masom, co-head of sales for Legg Mason Inc., told The Wall Street Journal, the Labor Department had “certainly made a lot of concessions” in developing the final rule. (1)

In the future, the SEC and the Financial Industry Regulatory Authority are likely to expand the rules to taxable accounts as well, which would extend the fiduciary standard to all financial advice. As Michael Kitces observed in his explanation of the new rules, “it’s clearly untenable in the long run for advice to retirement accounts to be held to a fiduciary standard, while everything else remains the domain of suitability and caveat emptor!” (2)

However, the decision to start with retirement accounts was smart from a consumer perspective. After all, if you have only one investment account, it is likely to be a retirement account such as a 401(k) or IRA. It seems probable regulators will eventually push for a consistent standard across the board, but in the meantime, the new rules will still cover many savers, in part or entirely.

The rules offer a “streamlined” method for advisers who qualify as Level Fee Fiduciaries, recognizing that advisers whose compensation has no connection to the products they recommend effectively prevent many potential conflicts of interest. This means that many RIAs that do not receive third-party compensation will feel less of an impact from the new rules. The compensation structure of firms that eschew commissions and other sales-based payments and are based on a percentage of assets under management is one that regulators have not deemed to be designed to push clients toward any particular investment.

However, Level Fee Fiduciaries must still provide justification for recommending that an investor roll over their 401(k) account to an IRA, or from one IRA to another, due to the additional fees the investor may incur as a result. For firms that are already committed to a fiduciary standard, the main change will be some additional documentation to make the client-centric logic behind such recommendations clear. The new rule should create minimal additional administrative burden for such firms, in contrast to broker-dealers who may have to make significant changes to how they conduct business.

Overall, the new rules are a step in the right direction. Many firms that were not previously committed to a fiduciary responsibility to their clients will need to take steps to make sure they offer all retirement savers the same high standards.

Investments That Pay Well In Retirement

Most think of money when investing for retirement but there are other things that will pay much better when addressed when young. Chief among these is health and teeth. Education comes in third and, of course, family must be number four. Why list them in this order? Wouldn’t family be first? These are great questions but the reason they are in this order is age related.

Young people don’t consider their family that important but they will undertake education and job experience when nudged. Health awareness should be driven into them from early in their life and looking after their teeth is part of it.

As they grow, however, many of these early lessons take a back-seat to more exciting things and needs change. Many in their late forties, for instance, may not have seen a dentist in decades. They also may have little knowledge of the risks they take with their diet.

At this time in their lives they may also be suffering marriage and family break-downs that lead to other problems, such as addictions. While drug taking is now common among teens it is also something adults do even though they should know better.

The spiral into health and education neglect is showing up ever more in those who are seeking jobs and may even be homeless. Unable to manage their lives they give up and expect that others will provide for them. This does not need to happen and if they had invested more int their own skills and abilities when younger they may escape such trauma.

The best advice for the young is to invest wise for old age. You only get that one chance to do it. If at the age of 50 you are hospitalised with a heart attack or have all your teeth extracted it is too late for regrets.

Money is not important if health and other things are neglected. If one has invested in knowledge, skills, and good health then the rest falls into place.

Norma Holt has knowledge that enables her to understand many issues. Social, political, and behavioural problems are usually on her list for discussion and the depth of her research will amaze.