PracticalDermatology

One of the most important financial decisions you will make in your lifetime is who you will rely on as a financial advisor. Part of your decision-making process in evaluating potential advisors should be to understand how financial professionals make money and their legal duty to you as a client. Unfortunately, many investors believe that all advisors are the same in these two factors—when, in fact, this is not at all the case.

In this article, we will explore one fundamental difference between two types of financial advisors—those who have a fiduciary duty to their clients and those who do not. Not only is this a critical distinction for you as a potential client, it has also become a focus of the industry, and the government in trying to regulate it.

Regulations on Financial Advice

In the last decade, the Department of Labor (DoL) set out to regulate the quality of financial advice given to participants in qualified retirement plans (QRPs), including 401(k)s, profit-sharing plans, pension plans, 403(b)s, SEPs, and IRAs. Specifically, the DOL was concerned about conflicts that may incentivize advisors to promote products within these plans that are not in the best interests of the investor. As an example, if an advisor is compensated more when they place your wealth into one fund over another, there is an incentive to make decisions that may not be in your best interest. Imagine that a firm has a fund it wants its advisors to sell and is offering a reward every time they get a client to invest in that internal, proprietary fund. Even though that fund might carry larger fees than other similar products, the advisor still directs those dollars into the fund that pays out a larger commission or bonus. This doesn’t sound like a relationship that any investor should want to maintain.

On February 23, 2015, President Obama announced, “I am calling on the Department of Labor to update the rules and requirements that retirement advisors put the best interests of their clients above their own financial interests. It’s a very simple principle: You want to give financial advice, you’ve got to put your clients’ interests first.”

The DoL proposed its new regulations on April 14, 2015, and the final rulings were issued on April 6, 2016. The rule, which requires a fiduciary standard of brokers when advising clients of retirement plans, came under immediate attack. By January 2017, a bill was introduced by Representative Joe Wilson (R, SC) to delay the actual start of the fiduciary rule for two years.

By May 2018, the Fifth Circuit Court—a federal court one level below the Supreme Court— covering Texas, Louisiana, and Mississippi ruled that the Labor Department overreached by requiring brokers and others handling investors’ retirement savings to act in clients’ best interests. “The Rule is unreasonable,” the decision read, with the court finding fault in the department’s broadening of what is deemed financial advice and who gives it, among other issues.

Despite the court’s decision, the DOL said it will continue to rely on the regulation, for now, to govern advice in retirement accounts. The agency has delayed full implementation of the rule until July 2019, while it conducts a review mandated by President Trump that could lead to major changes. There is even the possibility that the DoL could appeal the Fifth Circuit Court decision to the US Supreme Court.

With all the Back-and-Forth Rhetoric on Capitol Hill, What are Your Options?

If you choose to work with a professional investment advisor, the distinction between a fiduciary and suitability standard becomes crucial. Unfortunately, many investors rely on an advisor without understanding how the advisor is obligated to work with them.

The largest and most popular financial firms are broker-dealers. Broker-dealers are primarily regulated by Financial Industry Regulatory Authority (FINRA), under standards that require them to make suitable recommendations to their clients. Instead of having to place his or her interests below that of the client, the broker-dealer’s suitability standard requires only that the broker-dealer reasonably believe that any recommendations made are suitable for clients. A key distinction in terms of loyalty is also important, in that a broker’s duty is to the broker-dealer he or she works for, not necessarily the client served.

Please do not focus on the term “broker,” as many firms have realized the negative implication the term implies and have begun calling members of their sales force “financial advisors,” a term you will see in their television commercials, print ads, and marketing materials.

In contrast to large broker-dealers, a Registered Investment Advisor (RIA) is an advisor or firm engaged in the investment advisory business and registered either with the Securities and Exchange Commission (SEC) or state securities authorities. An investment advisor under the RIA model has a fiduciary duty to his or her clients, which means that he or she has a fundamental obligation to provide suitable investment advice and always act in the clients› best interests. The DoL rule had little impact on their business model of RIAs.

In addition to their fiduciary duty to clients, independent RIAs are not tied to any family of funds or investment products. Further, RIAs typically use independent custodians to hold clients’ assets. For many investors, this provides a reassuring system of checks and balances, because your money is not held by the same person who advises you about how to invest.

RIAs typically charge a fee based on a percentage of assets managed. This structure is simple, transparent, and easy to understand—unlike many broker-dealer models where understanding all the ways the broker and firm are compensated can be difficult, if not impossible. The typical RIA fee model also gives the advisor an incentive to help grow the client’s assets—as the advisor succeeds when the client succeeds.

We would encourage investors to closely examine the qualifications of their current financial advisor(s), as well as anyone they are considering for this significant role. What licenses does the advisor hold? Does he or she have professional certifications? And, perhaps most importantly, does the advisor owe you a fiduciary duty to act in your best interests or are they subject only to the suitability standard?

Understanding how advisors make money and to whom they owe their duty (their clients or their firms) is a paramount first step in finding the right professional to guide you toward achieving your long-term financial goals.

The authors welcome your questions.

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This article contains general information that is not suitable for everyone. The information contained herein should not be construed as personalized legal or tax advice. There is no guarantee that the views and opinions expressed in this article will be appropriate for your particular circumstances. Tax law changes frequently, accordingly information presented herein is subject to change without notice. You should seek professional tax and legal advice before implementing any strategy discussed herein.