In 2016 and 2017, the Consumer Federation of America reported in three separate comment letters that 34 financial firms changed their products and/or product offerings to comply with the DOL Fiduciary Rule. They did so against a backdrop of industry criticism that the Rule would be harmful not only to their own business models, but to their customers and clients as well. Some of the very same firms heftily contributed to that backdrop. However, in announcing their new products and offerings, many of these same firms reversed their position on the impact on investors. Now, they believe such changes are overdue, prudent, and beneficial to customers. Why the switch? And will such product improvements survive the recent vacatur of the DOL Rule? Time will tell.

Recent regulatory and industry actions on fiduciary have come fast and furiously. Unfortunately, they are mostly bad news for investors. The exception: actions in the states. The takeaway: Investors are on their own to identify real fiduciary advisors, who are also on their own to stand apart from brokers. The Institute’s Best Practices and the Campaign for Investors are more important than ever. Here’s an update on these actions and what they mean.

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.

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.

Investment managers owe fiduciary duties to clients, including the duty of loyalty and the duty of care. A persistent question, with no clear answer, is what precisely is required by the duties of loyalty and care. In this paper, I argue that much of investment management regulation is a response by regulators to the uncertainty inherent in the fiduciary obligation. Regulators design investment management rules to guide managers regarding the proscriptions imposed by the duty of loyalty and the diligence required by the duty of care. Regulators, acting through agency rulemaking and enforcement actions, are attempting to specify what precisely is required of investment managers in the context of exercising their fiduciary obligation to clients. Viewing investment management law as I propose here leads to an important insight about the law, and it challenges an alternative view of the fiduciary obligation. Some writers claim that detailed conduct rules effectively displace fiduciary duties. By contrast, I argue that, far from being an alternative to fiduciary duties, investment management law and regulation serves to explicate what the fiduciary obligation entails. Rules prepared by regulators governing the investment management industry are not a substitute for a fiduciary duty; they compose its essence.

Fiduciary September 2014 Special Webinar with five panelists: John Taft (JT), RBC Wealth Management, Michael Falk, Focus Consulting Group
, Jack Waymire, Paladin Registry, David Armstrong, WealthManagement.com, and Knut A Rostad (KR), Institute for the Fiduciary Standard

CFPB is reviewing its “Ethical foundation for CFP certification.” This review is timely. The advice market is undergoing a basic transformation. New technologies, the DOL Rule, more demanding investors and lowering costs are change agents. Higher ethical standards are in demand. CFPB should answer the call and lead.

Questions of good advice and financial planning are timely. 2016 will initiate the DOL COI Rule era, 76 years after the Advisers Act of 1940, and 47 years since the “birth” of financial planning. And timeless. The force behind the DOL rule reflects the “shared mission” and question that attracted the financial planning founders in 1969: Can advice replace sales as the industry “driving force”?

Recently, Securities and Exchange Commission (SEC) Chair Mary Jo White said she supported the SEC moving ahead with a uniform standard for broker-dealers and investment advisers. Knut Rostad’s paper is published here in the September issue of The Investment Lawyer.

SEC Commissioners Luis Aguilar and Daniel Gallagher have announced they will leave the SEC when their replacements are selected.1 Commissioner Aguilar has served seven years and Commissioner Gallagher almost four. The Commissioners depart at a time – in the midst of recent statements of SEC Chair White on the status of rulemaking at the SEC and the DOL proceeding with the Conflict of Interest Rule — of unprecedented focus on fiduciary duties. This focus reveals sharply different visions. The commissioners’ departure is an appropriate time to assess their views.

The “Best Interest” standard is central to the regulation of advisers and brokers. It’s key to the DOL COI proposed rule and recent SEC statements and decisions. Now, a Securities Industry Financial and Markets Association (SIFMA) statement discusses conflicts of interest, disclosure and fee transparency. Despite its obvious importance, federal policy makers and regulators still have not affirmed or promulgated a view of the “Best Interest” standard as drawn from the Advisers Act and common law.

Fiduciary law is complex in its nuances and structures; fiduciary principles are not so complex. Instead they reflect the wisdom of Emerson, who noted, “Nothing is more simple than greatness; indeed, to be simple is to be great.” So it is with principles on which fiduciary best practices and an emerging advisory profession must rest. This paper notes the attributes of character, suggests relevant operating principles or premises for best practices based on these attributes, why these principles matter, and how they starkly differ from principles underlying common brokerage sales practices aggressively advocated by brokerage lobbyists. Throughout, the simplicity of these principles and their meaning to investors stand out.

The Institute for the Fiduciary Standard today announced the formation of
a Best Practices Board to craft fiduciary best practices for investment and financial advisors.

Note: this op-ed, written by Institute for the Fiduciary Standard President Knut Rostad, is published on InvestmentNews.com.

Whether a financial advisor is an “investment advisor” or a “broker” (or neither) under the federal securities laws, an advisor may be an agent under the common law of agency. In such situations, for example the situation in which the financial advisor has discretionary trading authority over a client’s account, the advisor is a fiduciary who is subject to the fiduciary duties of loyalty, care, and a host of subsidiary rules.

Capitalism has played an important role in world history generally and in American history in particular. Nevertheless, today many Americans view capitalism with suspicion or even hostility. What’s needed is a remaking of the case for capitalism, which itself requires a restatement of capitalism’s old truths.

A discussion of the differences in the standards of investment advisers and brokers is essential amidst the calls for “harmonizing” the two. This paper seeks to highlight how these two standards differ in terms of the legal requirements and duties imposed on advisers and brokers.

Knowing how your financial advisor makes money can help you, the consumer, make a well-informed decision. This article attempts to arm consumers with tools they can use to get the best money advice possible.