Testimony of Tamar Frankel, LL.M. S.J.D. Professor of Law EmeritaBoston University School of LawBefore the N.J. Bureau of Securities Re: Fiduciary Duty/Pre-Proposal on November 19, 2018
Legislation and Rulemaking
“Proposal Reg BI fails to explain best interest; however, it explains why conflicts can be beneficial” – Knut A. Rostad
Adviser and Broker Dealer Standard of Conduct: For generations, the Advisers Act of 1940 has served well as a “contract” between advisers and their clients. The Commission’s rulemaking here effectively puts this “contract” under review and renewal.
In a memo to CFP Board from the Institute, we comment on its new standards. The proposed standards move financial planners towards professionalism on a number of fronts. Two stand out. One, in a sharp departure from the current standards, all CFPs who render financial advice are held to fiduciary conduct. Two, in the proposed standards conflicts begin to be addressed.
Candid conversation with John Taft of SIFMA on conduct standards.
Contrary to what some of the critical comments received by the DOL/EBSA suggest, fiduciary duties are neither too “ill-defined” nor “vague” to be applied to investment advisory activities. Such duties have been applied to other professionals for centuries. Additionally, there is a significant body of case law applying fiduciary duties of due care, loyalty, and good faith upon the activities of investment advisers (both at the federal and state level).