August 24, 2010
I would like to voice my opposition to the misguided attempt of the SEC to impose a fiduciary standard on all Registered Representatives. Legal fiduciary duty governing investment advisers does not provide greater investor protection that the suitability standard governing broker-dealers. I point out as my example both Allen Sanford and Bernie Madoff. Both of these men were fee only investment advisors head to a fiduciary standard. Where was the consumer protection in these cases?
The big difference to me is that fiduciary standard is backward looking and enforces breeches retroactively through SEC enforcement or private lawsuits. Suitability is forward looking and tries to prevent harm to consumers through ongoing and frequent FINRA and broker-dealer audits and compliance processes. The suitability standard governing broker-dealers and registered representatives is already robust and heavily enforced. Fiduciary standard is never enforced until there is a breach and consumers have already been damaged.
If fiduciary standard is applied by the SEC to every advisor and broker-dealer this will further damage consumers by driving up the cost of investing. Compliance costs are already substantial and adding another layer of regulation will just cost everyone more money.
As a investment advisor representative of my broker-dealer, I hold a General Lines State Insurance license, A Series 7, 24, 63, and 6 securities license and I hold a CLU as well as a ChFC from the American College. All of these licenses and organizations have extremely high ethical standards in force that I must adhere to. I am already held to fiduciary standard on fee based investment advice. As a series 24 Registered Principle I also have the responsibility for suitability within the firm I work for. I have to review every transition every day in order to confirm that all services were performed in the best interest of the client. Our firm is proud of our high standards and every service is judged by the philosophy that we will give our clients the same advice we would give to ourselves and/or our families. Our broker-dealer examines and audits our firm at least annually. We had to hire a full time person whose primary responsibility is compliance. Compliance issues and requirements eat up enormous time, money, and resources leaving less time to find and assist the public with addressing their financial concerns.
There will always be the unethical crook out there no matter what the standard who will figure out how to subvert the rules and steal client money. This does not mean we shouldnt try to do anything about it, but I do believe that current requirements are sufficient to protect consumers.
Compliance makes it more and more difficult to serve my clients. I cant even write them a letter without prior approval of the broker-dealer. If they require customized presentations due to the complexity of their situation all material must be approved prior to using with the public. If I want to write an article for a trade magazine or newspaper, a blog on the internet, etc every word must be approved prior to use.
Fiduciary standard raises many questions in my mind:
Will I be required to adopt a fee only business model? Many of my clients cant afford to pay a fee. Will financial advice then become a service for only the wealthiest Americans? How does charging a fee make the advice better? Some of the worst planning I have ever seen in my 27 year career has come out of fee based or fee only investment firms. Moving to a fee only model will not result in better, unbiased advice from me or my firm. We already hold ourselves to the highest ethical standards there can be. I fear the liabilities will drive up my errors and omissions coverage and I may eventually have to get out of this business because liability may become to great a risk.
I strongly oppose the adoption of Fiduciary standard for all.