Federal Fiduciary Failure
How do you know when an investment recommendation is worth heeding? Red tape and legal jargon aside, it’s about finding an advisor who exemplifies a few simple ideals:
“There’s no confusion in the minds of investors as to what they want. They’re very clear. They want somebody they trust who makes recommendations that put their interest first and don’t allow the advisor to profit financially at their expense.”
— Phyllis Borzi, Dept. of Labor EBSA head, 2009–2017
That makes sense, doesn’t it? There’s even a term the investment world has been using since at least the 1940s to describe this highest standard. It’s called fiduciary advice.
Why Fiduciary Advice (Still) Matters
Fiduciary advice makes sense to us too. Investors deserve nothing less than the fairest possible shake from anyone entrusted with advising them about their personal wealth. For decades, the fiduciary standard has shaped this highest level of care for those of us committed to delivering it.
Having a fiduciary duty to our clients puts us on similar footing with other professional consultants, such as physicians or attorneys. You hire us partly because we have dedicated our career to understanding every facet of your wealth. But you also hire us to always use our knowledge to advise you according to your highest financial interests – even ahead of our own.
However, to our frustration, it has probably become harder instead of easier for you to know when you are receiving this level of care … and just as significantly, when you are not. As Borzi adds, “everybody claims to be a trusted advisor when some are really only salespeople.”
Unfortunately, the fiduciary standard has been under attack lately. A recent Securities and Exchange Commission (SEC) overhaul has downplayed rather than strengthened its significance by overlaying it with a new industry standard, paradoxically called “Regulation Best Interest.”
Regulation Best Interest: One Size Fits None?
You may not have marked the day, but June 30th, 2020 was a big one for financial practitioners across the country. It was the day the SEC’s Regulation Best Interest (Reg BI) took effect.
Reg BI does not require you as an investor to do anything. It’s aimed at those of us offering you investment advice or recommendations. Here is an SEC excerpt:
“[Reg BI is] designed to enhance the quality and transparency of retail investors’ relationships with investment advisers and broker-dealers, bringing the legal requirements and mandated disclosures in line with reasonable investor expectations, while preserving access (in terms of choice and cost) to a variety of investment services and products.”
At face value, this seems reasonable, if vague. Here’s more from the SEC (emphasis ours):
“Individually and collectively, these actions are designed to enhance and clarify the standards of conduct applicable to broker-dealers and investment advisers, help retail investors better understand and compare the services offered and make an informed choice of the relationship best suited to their needs and circumstances, and foster greater consistency in the level of protections provided by each regime, particularly at the point in time that a recommendation is made.”
Still not crystal clear? In English, the intent is to ensure you (the “retail investor”) have enough information to decide whether a professional investment recommendation is best suited to your needs, essentially no matter who is offering it.
That still seems logical enough. But let’s take a closer look at how investment advice “best suited” for you in theory may translate in practice.
“Apple and Orange” Advisory Differences
In our mind, new regulations should either eliminate, or at least make it easier for investors like you to recognize two very different practices that still exist side by side in the financial industry:
“Full-time” fiduciary advisors offer a fiduciary level of care throughout their relationship with you.
“Best interest” recommendations can be one-off pieces of advice you may receive during point-in-time transactions.
Despite its promising name, Reg BI may muddy what clarity had existed between these higher and lesser standards of care. By attempting to apply the same broad rules to both, Reg BI has the potential to discount the still-stark differences between them:
Our Take on Reg BI: Less Isn’t Always More
How could one set of regulatory rules apply equally to both lesser and higher standards of care?
In theory: Both groups should minimize their conflicts of interest, and disclose any inherent conflicts they cannot eliminate.
In reality: When is the last time you read a financial disclosure, and understood what it meant or asked probing questions until you did? For most of us, it’s been a while. As such, legal disclosures alone may fail to protect investors from falling for sales pitches in disguise.
In practicality, this means:
Continued double standards: Suffice it to say, Reg BI leaves some large legal loopholes to be leveraged by those who wish to continue offering incidental investment advice.
Business as usual: “Best interest” recommendations may still end up tainted by unnecessary conflicts of interest (such as compensation models that don’t actually align with investors’ best interests) and/or an incomplete understanding of your greater financial goals.
More due diligence: You, the investor, must still sort out which side of the table an investment recommendation is coming from. Worse, the well-established terminology that used to help you distinguish fully fiduciary from merely suitable advice has been subsumed under the fuzzier, untested language of Reg BI.
What Comes Next?
To say the least, we are underwhelmed by Reg BI – and we are not alone.
Jane Bryant Quinn, a veteran financial journalist, described the new landscape as follows:
“[Reg BI] creates fake fiduciaries. It’s a disaster for investors because now a salesperson can basically say, ‘I have your best interest at heart — I put your interest ahead of mine.’ They’re allowed to use exactly the same language that fiduciaries use but without actually being fiduciaries.”
Here is additional commentary from Borzi:
“Ironically, the final [Reg BI] product that emerged from the SEC not only did not address this endemic problem of conflicted compensation, but also exacerbated investor confusion by allowing brokers to market themselves as working in their clients’ best interest without actually holding them to a clear, fiduciary best-interest standard or ending the harmful incentives that conflict with that standard.”
Here is one more take from “Nerd’s Eye View” financial thought leader Michael Kitces:
“[I]n issuing the new Regulation Best Interest rules, the SEC declined to equalize the standard of care for broker-dealer-delivered versus RIA-delivered advice as mandated by Dodd-Frank, and instead expanded the broker-dealer exemption that would allow broker-dealers to even more easily provide comprehensive financial planning advice without being subject to a fiduciary standard for that advice … which creates, literally, a double-standard for the delivery of financial planning advice.”
Fortunately, this tale of fiduciary peril is not yet over. We, Kitces, Borzi, and many others like us continue to press for legal, political, and industry reforms to cut through the confusion.
We hope to update this important piece over time with improved news. Until then, we encourage you to use the table above as a handy checklist for determining when an investment recommendation is most likely to truly be in your highest financial interest … and when it is not.