Let the food fight begin. As expected, people from all corners of the financial services industry are weighing in with their ideas about the future shape of the industry, including thoughts about whether all financial advisors should be held to the fiduciary standard of client care.
In March, T. Timothy Ryan, president and chief executive officer of the Securities Industry and Financial Markets Association, told a U.S. Senate committee he advocates a "universal standard of care that avoids the labels that tend to confuse the investing public and expresses, in plain English, the fundamental principles of fair dealing that individual investors can expect from all of their financial services providers."
Ryan said the 2007 Rand Corp. report commissioned by the Securities and Exchange Commission found that efforts to describe financial services providers' duties in terms of "fiduciary duty" or "suitability" confused investors. "The Rand report makes clear that individual investors generally do not understand, appreciate or care about such legal distinctions."
In late February, Financial Planning Association board member Deena Katz told a U.S. Senate committee that Congress could help boost the chances for successful baby boomer retirements by ensuring that all financial advice offered to investors "be based on fiduciary principles; i.e., the simple and equitable concept that recommendations will be made based on the best interest of the client, that conflicts of interest will be minimized and that any remaining conflicts be clearly disclosed."
Katz, an associate professor in the personal financial planning department at Texas Tech University and chairman of Evensky & Katz, a Coral Gables, Fla.-based fee-only planning firm, also said that all professionals who provide advice to retirees should be held to this fiduciary standard, as they would be under ERISA.
The debate stems from the polyglot regulation of advisors put in place decades ago. John Bogle, founder and former chairman at the Vanguard Group, traces the fiduciary standard to eight centuries of English common law, which states that a fiduciary duty is basically a legal relationship of confidence or trust between two or more parties.
Speaking last month at the IA Compliance Summit in Washington, D.C., Bogle said there are two types of investment advisors. One is defined by the Investment Company Act of 1940 as working at a management company and providing selection and portfolio management advice to mutual funds. The other is defined by the Investment Advisers Act of 1940 as getting paid for providing advice to others. The latter, Bogle said at the summit, excluded broker-dealers because the advice component is incidental to the conduct of their businesses.
Bogle firmly supports the fiduciary duty standard. After he cited the FPA, the National Association of Personal Financial Advisors and other industry organizations whose members operate under such a standard, Bogle said the standard "must be extended to other advisors, including broker-dealers who elect to act as advisors."
"Of course, this idea generates heat, but I am not sure why," Bogle said. He contrasted the difference between investment professionals paid solely through fully disclosed fees and "sales representatives who sell the products and services of the companies they represent."
Indeed, Bogle's comments drew criticism. "I question the logic," said David Bellaire, general counsel and director of government affairs at the Financial Services Institute, a membership group for independent broker-dealers and financial advisors.
Bellaire said the issue is more about reviewing, examining and enforcement on the advisory side than it is about dealing with regulatory standards. He said the Bernard Madoff case is a lesson that investment advisors should be held to the same level of supervision and examination as broker-dealers are now.
"Most of our members are dually registered firms used to FINRA, SEC and state exams on the broker-dealer side, and to the SEC and state exams on the investment advisor side," Bellaire said, "And in my experience, these types of advisors hold themselves to the higher standard of the two," depending on the circumstances.
Congress has other things on its mind these days, so this debate won't be solved anytime soon-if ever. Meanwhile, stay tuned.