[READ MORE: To Find the Right Financial Adviser, ‘Do a Beauty Contest’]
The rule still has a chance to live on, legal experts say, but its fate depends on the Trump administration’s next steps and what may unfold in the courts. The future of the rule was already called into question last year when the new leadership at the Labor Department said it would review the regulation and delayed its full implementation by 18 months to July 2019. After this month’s court ruling, the agency said that pending further review, it would not enforce the rule.
But there is another complication. The Securities and Exchange Commission is reportedly working on its own proposal for financial professionals, which would likely apply to all investment accounts and not just tax-advantaged retirement money.
In October, Jay Clayton, the S.E.C. chairman, said that he was “focused on the standards of conduct that investment professionals must follow in providing advice to Main Street investors.” Last June, he invited the public to submit comments on the issue. (The S.E.C. declined to comment on the details of any future proposal.)
Regardless of whether any form of the fiduciary rule survives, however, consumers need to proceed with caution.
“Given the uncertainty, there is more reason now than ever for an investor to simply ask a financial adviser whether he or she is acting as a fiduciary, at all times,” said Arthur Laby, a professor at Rutgers Law School. Fiduciary is the legal term that means an adviser must put its customers’ financial well-being before their own.
One ally for consumers in lieu of the federal government could be the states. Champions of the Labor Department’s fiduciary rule, include William F. Galvin, the Massachusetts secretary of the commonwealth, who recently called on the federal government to appeal the court decision striking down the rule.
In the meantime, he said his office would continue to aggressively pursue investigations to ensure retirees were protected. Just last month, he brought charges against Scottrade, now part of TD Ameritrade. “If the Department of Labor will not enforce its own laws and rules, then the states must do what they can to protect retirees,” he said at the time.
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In anticipation of the fiduciary rule, Scottrade banned a list of activities that could tempt its representatives to put their own financial interests ahead of customers, including sales quotas and contests, bonuses and special awards. But Scottrade held two sales contests anyway, according to the Massachusetts regulator’s complaint.
Both contests “perversely incentivized Scottrade agents to bring in new assets from customers, including through the rollover of retirement assets,” the complaint said. It also noted that “Scottrade’s own internal-use materials instructed agents to target a client’s ‘pain point’ and emotional vulnerability.”
Ultimately, Secretary Galvin’s office charged the firm with engaging in unethical and dishonest conduct. TD Ameritrade declined to comment on the matter.
Ameriprise Financial recently settled allegations that the firm’s representatives recommended and sold higher-priced mutual fund shares to retirement account holders, which made the brokers more money, when cheaper shares were available. About 1,791 customers’ accounts paid nearly $1.8 million in unnecessary upfront sales charges, as well as higher ongoing fees and expenses, according to the Securities and Exchange Commission.
Ameriprise did not admit or deny the findings, but as part of a settlement with regulators it paid back customers (with interest) as well as a $230,000 penalty.
Regardless of how the fiduciary saga ends, there are several things consumers can do to minimize that they will be on the receiving end of any of these shenanigans.
• Work with a fiduciary, or someone who pledges to put your financial interests ahead of their own — all of the time, with all of your money. Get them to pledge to their fiduciary duty in writing. Working with a fiduciary is not fail-safe, but it is a consumer’s best defense. So-called investment advisers, who generally must register with the S.E.C. or a state securities regulator, must put their customers’ interests first, regardless of what accounts they are working with.
• Choose a financial planner with strong credentials. Anyone can call themselves a financial adviser, at least for now, so don’t accept titles at face value. Certified financial planners hold a professional designation with rigorous curriculum and experience requirements. They can manage your entire financial life, but can also provide guidance locating reputable specialists, like an estate planner, or, say, a life insurer who will sell you only what you need.
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• Consider paying the adviser outright. No financial adviser is entirely free of conflicts. But it’s often easier to eliminate those conflicts when they are paid for their time or advice and their paychecks are not dependent on selling you a financial product.
• You can find a list of fee-only financial planners through the Garrett Planning Network, the National Association of Personal Financial Advisors and the XY Planning Network.
Apply the same sort of rigor in your search for a financial adviser as you would when seeking a doctor or a lawyer, advised Tamar Frankel, a fiduciary expert and professor at Boston University School of Law. “The rules do not do it now,” she said. “So you have to do it now.”
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Article source: https://www.nytimes.com/2018/03/22/your-money/financial-advisers-customer-interest.html?partner=rss&emc=rss
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