September 16, 2004
Dear SEC Commissioners:
Im a fee-only financial planner in Texas and have the following comments regarding the so called Merrill Lynch rule.
In the beginning, brokers offered transactional advice. Should I buy or sell this stock? Should I invest in this mutual fund? As a result, they were compensated based on the value of the transaction through commissions. Financial planners, on the other hand, typically offered comprehensive advice on a wide range of issues from estate planning to investment advice. They usually took a more holistic approach and were compensated as such by consideration of a clients total or investable asset base. Compensation was typically fee-based.
Because of this distinction, the regulatory structure for brokers and planners has evolved differently. Brokers are regulated by the NASD. The NASD is focused on transactional issues like ensuring the client transactions are executed as ordered by the client and in a timely fashion.
Planners, on the other hand, are regulated by the SEC under the Investment Advisers Act of 1940. The regulation focus is on ensuring the clients interests are placed first, conflicts are disclosed, and compensation is transparent. This, without a doubt, is a higher standard than transactional integrity.
Moving forward to the recent past, we have seen a shift in the landscape, with brokers offering comprehensive planning and charging a fee for this service. The current SEC rule calls these services incidental to the transaction. This ruling does not seem to jibe with the current regulatory requirements that planners face. Why would brokers performing the same activities as planners and using the same compensation method as planners not be required to meet the same higher regulatory requirements? And, more importantly, why would the consumer not be protected by requiring brokers to meet the higher standards? What is good regulatory policy for one group should be good for the other.
I respectfully request you repeal the Merrill Lynch temporary rule and require brokers offering planning advice to meet higher standards like planners now face. This is the only way to ensure a level playing field for consumers.