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The Institute for the Fiduciary Standard

A resource site for investors, brokers, academics and the media.


Building a fiduciary culture of honesty, integrity, and expertise.

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Does Raymond James Support the Fiduciary Standard … in Practice?

By Knut Rostad on May 30, 2012

Scott Curtis, president of Raymond James Financial Services, raises an interesting question when he states that while he supports the fiduciary “concept,” he cannot support the fiduciary standard because the standard “hasn’t been defined to the FA level.”

This is a curious remark as the principle-based fiduciary standard has been articulated through seventy years of court cases and SEC opinions – as a principle-based standard. Take the example, as Scott Curtis does, of the issue of conflicts.

What does the Investment Advisers Act require when a material conflict cannot be avoided and must be managed in the client’s best interest? Curtis notes the conflict must be disclosed to the client, but disclosure alone is insufficient. There is more. A material conflict puts a greater duty on the adviser. The adviser must also receive informed consent from the investor: i. e.:  consent that is intelligent and independent. This consent means the investor understands the nature of the conflict and the actual or potential harm it might pose. Finally, the adviser should only proceed with the transaction if the adviser can mitigate or manage the conflict to be able to determine the transaction is in the best interest of the investor.

This duty  is  articulated in the SEC Arlene Hughes case, and two points deserve special mention. First, the adviser is responsible for ensuring the investors’ best interest is upheld. The SEC was explicit in noting that it is the investment adviser who is held accountable for assuring that his or her client understands the nature of the conflict and the risk or harm that it imposes. On this point there is no ambiguity.

Further, and this gets to the heart of the strength of the fiduciary standard, the SEC notes there can be no “hard or fast rule” for addressing material conflicts, because the duty adjusts according to the needs of the particular client. The greater the gap of knowledge of the client about the potential harms associated with the conflicted recommendation, the more stringent the fiduciary duty. This principle means, of course, a “one size fits all” disclosure regime is suspect on its face of fiduciary breach for the simple reason that all clients are not equal in their investing knowledge.

This  presents a key question (or two) for RJFS. Does RJFS agree a new uniform standard should abide by the priniples set out in Hughes? Does RJFS agree its dually registered brokers, when operating through their RIA today, should abide by these principles?

In his remarks to a standing room crowd at RJFS’ national conference, RJFS Chair Dick Averitt is reported to have embraced the fiduciary standard because, in part, of its mandate to serve society at large, as attorneys and medical doctors are obliged to do. Further, Averitt related how early in his career he came to the realization he was more motivated by helping clients than he was by making money, and that changing how he approached investors consistent with this realization was instrumental to his future success. Lets hope as Averitt leaves the day-to-day operating decisions of RJFS, the Averitt Principle remains in place.

Dan Moisand

 

Dan Moisand is a nationally recognized fiduciary fee-only financial planner, an Institute Real Fiduciary™ Advisor and Chair-elect of the CFP Board.

The Institute has enshrined the ‘Moisand Rule’ on fiduciary practices. It is basic and is more important today than ever: “You have to avoid conflicts. If I avoid a conflict, I don’t worry about it.”

Watch the video of Moisand speaking here.

Bob Veres

 

Bob Veres is a long term observer of financial planning. His Newsletter, “Inside information” Is a staple of leading planners. In the May edition he writes about fiduciary and the Institute.

"But a much bigger point is that the fiduciary standard—as Knut Rostad of the Institute for the Fiduciary Standard has pointed out—has been determined by the Supreme Court (1963 ruling) to be at the very heart of the Investment Advisers Act of 1940. It is the foundation of what it means to be an RIA registered with the SEC instead of a tipster or a tout."

- Bob Veres, Parting Thoughts ... The SEC's Own Compliance Culture

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