Now What?

With FPA's win in its lawsuit against the SEC, financial advisors need to reflect on what that means for the profession.

Being a finance person is better than being a doctor. You can cure the whole family, not just one person. And it's good medicine-you can see them get better day by day.
-Storai Sadat, former medical student, now head of Ariana Financial Services, Mercy banks/micro-lenders in Afghanistan

The essential purpose of [the IAA] ...[was] to protect the public from the frauds and misrepresentations of unscrupulous tipsters and touts and to safeguard the honest investment adviser against the stigma of the activities of these individuals by making fraudulent practices by investment advisers unlawful.
-H.R. Rep. No. 76-2639, at 28 (1940) as cited by Judge Rogers in his opinion on FPA vs. SEC

By now, we have all had the chance to absorb David's victory. Goliath fell-big time. The Financial Planning Association prevailed in its lawsuit against the Securities and Exchange Commission. Let all the people rejoice.

Question: What does this mean for us?
Just to assure we are all on the same page: Three years ago, our very own Financial Planning Association sued the Securities and Exchange Commission. Some thought it was inappropriate. Others thought it was out of our league. Nonetheless, our fearless leaders had grown weary of watching brokers parade as personal financial advisors. While they could understand that the law legitimately exempted commission-generating stockbrokers, they thought charging advisory fees exceeded the limitations of "merely incidental." 
The SEC had ruled that these brokers did not need to register as investment advisors, and taking exception, the FPA claimed the Investment Advisers Act of 1940 applied to fee chargers. It asserted that advisory services were not "merely incidental" if they served as grounds for billings separate and apart from sales commissions. It argued that Congress intended for the 1940 Investment Advisers Act to apply to folks who claimed to be personal financial advisors, acted like personal financial advisors, charged and received fees like personal financial advisors and purported to function like personal financial advisors.
If they presented themselves to the world as personal financial advisors and received compensation for it, they needed to register as such with the authorities and accept the duties that attended.
If not, then they needed to tell their clients that they were just salesmen and agents of the brokerage. They should have disclosed that they were not members of an authentic profession. In other words, they had either to accept fiduciary responsibilities or tell their customers that they were actually salespeople and not responsible for putting client interests first. Either way was fine. "Buyer beware" was not fine.
The FPA stressed the unfairness and inappropriateness of expecting consumers of financial advice and products to tell the difference between someone selling whatever sells and someone with legitimately earned credentials who has stepped up to meet the requirements of law, designation and a personal pledge to put the client first. The FPA reminded the court of the tens of thousands who have earned the rights to use the Certified Financial Planner trademarks and made such commitments. It focused on the CFP requirements of education, experience, examination and, especially, ethics, for folks who serve as client-centered advisors professionally dedicated to putting their client's best interests ahead of their own.
The FPA said it was unfair for them to walk like advisors and talk like advisors while actually serving as mere sales reps whose primary obligations were to their brokerages. In other words, the FPA maintained that the Investment Advisers Act of 1940 does not exempt fee-based brokerage programs from their responsibilities for being who they say they are, for what they say, for doing the work they say they will do and for keeping their promises. In other words, the FPA contended, if you say you are a personal financial advisor, be a personal financial advisor.
Frankly, it would be simple enough. Register. Disclose. Keep your promises. Advise. Be accountable. It really does not seem that tough.
In early April 2007, the U.S. Court of Appeals for the District of Columbia agreed. Two of three judges ruled that the SEC was wrong for exempting wirehouse sales personnel from the 1940 Act's requirements.

Yay good guys.
Now what? The thing is, like all victories, this one will pass quickly if we do not do some chewing and stewing. If the court's decision is to have its greatest meaning, we need to think about it and bring it into ourselves and our sense of who we are. It begs us to drill for meaning and answer that question: Now what?
If imitation is the most sincere form of flattery, we have to ask ourselves the question: Why do the salesmen want to look like authentic advisors? Who is it/what is it that they think we are that is worthy of impersonation?
I am strangely unsatisfied. As happy as this decision makes me, it forces that question again: "Now what?" Those nagging questions remain. Is this a beginning or an end? Now that we have it, what are we supposed to do with it? How ought we to regard it and use it? What does it say about us? What does it mean to our self-perception and notions of the financial planning profession and its purpose on the planet? 
In this full flush of victory, how do we take it and make it ours? Now what?
Why are we so happy about this?  Is it about competitive advantage - "a level playing field?" That would be a bit silly. That will not last.
On the other hand, could it be that the real joy is in being seen for ourselves? In taking the case and ruling as it did, the court has proclaimed that our profession has arrived and stands for something. This message is strong. It says that the profession of financial advice is vital. It is a profession that serves the public and the public's interest. It should not be so hard to tell who is a member of this profession, even if it is hard to tell from first impressions alone. Those who would claim this stature must earn it. At the very least, they must stand up for accountability.
Let's make a couple of things clear. First, I have nothing against salespeople. The sales act is about great communication-listening, sharing and understanding, even persuading when it is right. Good sales folks make the world go around, and there are tens of thousands of great salespeople among the financial planning profession's best and brightest.
That said, sales means something different for members of an authentic profession. When we make a commitment to put our clients' interests first, we make the commitment to work on their behalf and not place sales quotas, employers' profitability or personal rewards above those interests. Of course, we all have to stay in business. However, members of an authentic profession tell the truth. We register and we disclose. We work at our craft to become better in order to serve our clients better. We develop our understandings to become better sources of wisdom and counsel. Most importantly, we know we hold positions of great responsibility with respect to our clients. We have the attitude of a fiduciary, and we treasure the trust our clients repose in us.
In contrast, we do not subscribe to an attitude that says, "If it sells, it must be good." We know the reason that something sells is because clients justifiably trust us in the contexts of their whole lives. We know we are working with the intimate, the tender and the vital. We know that violations of such trust must surely fall within the definition of sin even in these times of behavioral relativity.
I suggest this means turning inward, grasping the implications of the court's recognition of investment advisors, i.e., personal financial advisors, as more accountable and responsible and more prestigious than brokerage sales forces. I further suggest we should accept the court's implicit trust of personal financial advisors who do register, as required.
Moreover, this also means taking ourselves seriously as a unique profession unto ourselves. We are not merely the representatives of financial product manufacturers. We are advisors, with our primary loyalties to our clients.
This court decision qualitatively separates financial planning professionals once and for all from the product manufacturers of the financial services industries. Authentic financial planners are per se separate from the brokerage industries. We serve clients in the real world. Our responsibilities are to these clients and their financial health and well-being. We are not merely product distributors.
The court recognized the truth of our claims that we are special. As personal financial planners, we hold positions of special trust and confidence in the eyes of our clients and the world that are simply not reflected in retail brokerages-just as Congress anticipated when it passed the legislation in the first place. This begins to complete the vision of such leaders as the late Harold Gourges, who predicted the need to separate product manufacturing, sales and advice some 25 years ago.
Make no mistake. This is a major victory. Notwithstanding current opposition, it elevates the integrity of the financial services industry while providing a major boost to the respect and esteem of bona fide financial planners. Most importantly, it assures the citizenry of improved access to authentic financial counsel and advice by someone who is on their side.
Our professional association took a wrong and made it right. It took a mission-driven risk and announced to the world that authentic financial planners do not try to fool those who trust them. It declared who it was, it declared who we are as folks who will fight for what is right. That is leadership.
Personally, I think the court was exceedingly kind to the brokerage world. Let's face it, the practical issues did not turn on the niceties of the words "solely incidental" or SEC rule-making authority, though these were the purported issues. The real issues started at the roots of an attempted deception whereby retail brokers were presenting themselves to the public as legitimate, client-centered life advisors. If I were prosecuting, I would aver that brokerages have been actively intending to confuse the public with claims of advisory legitimacy without lawful accountability. They went out of their way to create the illusion that they were part of a profession that is rapidly becoming a learned profession. They wanted to look like folks whose members had worked hard and long over the past 40-odd years to build trust and accountability. They just did not want the legal duties that attend.
They wanted to look like us. They wanted the public to think they are like us. Who knows? Maybe many actually believed it themselves. In any event, the court told them to forget it. It was not going to work that way.
This, then, is about profession. It takes us right back to the notions of mission, function and purpose of the financial planning profession.
Indeed, I suggest it is more even than trustworthiness, transparency, competency or rates of return. I suggest that it has to do with issues that emerge when we are dealing with matters that go to the heart of one's self-image and self-esteem, one's sense of security on the planet and one's beliefs about the world and the way it works.
On a lesser scale, I further suggest it has to do with the role of money in modern times. People want help with money. They want help with their money and how to relate it to their hopes, dreams and aspirations. Most assuredly they really want help with understanding money and the demands it places upon them. They want someone who knows them and can help them interface with this awesome force that is money.
I believe this decision is a watershed event for the financial planning profession. It sees us for what we do and for ourselves. We are members of an authentic profession. We are special.

Richard B. Wagner, JD, CFP, is the principal of WorthLiving LLC, based in Denver. He is the 2003 recipient of the Financial Planning Association's P. Kemp Fain Jr. Award, which recognizes a member who has made outstanding contributions to the profession.