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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.