FiduciaryNews

Exclusive Interview: Ron Rhoades Threatens to Oppose Any Weakening of Fiduciary Standard

Exclusive Interview: Ron Rhoades Threatens to Oppose Any Weakening of Fiduciary Standard
November 17
00:02 2015

We first featured well known fiduciary advocate in our Exclusive Interview series nearly four years ago. He’s always been riding the crest of the leading wave. With a background in legal, financial, and academic matters, he has never failed to offer blunt and sometimes unexpected commentary. Well, a lot of water has flowed beneath the proverbial bridge since our last interview. Things have changed for Ron as well as for fiduciary advocacy. It’s nice to see one thing hasn’t changed – Ron’s ability to stick to his guns, consistently promoting for a real fiduciary standard and, yet, still willing to say what many believe but are afraid to say.

Just how well respected is Ron Rhoades? In less than a month his blogs have been chosen by readers as the FiduciaryNews.com Blog of the Week. If you like what read here, be sure to check out his blog Scholarly Financial Planner.

FN: Ron, first off, it’s been almost four years since we last interviewed you. You’ve had several changes in your own life, let alone what’s been going on in the fiduciary world. Tell us what’s new for you and maybe why you decided to alter your own direction on things.
Rhoades: It has been a year of transition for me, as I moved to Bowling Green, Kentucky and joined the Finance Department faculty in the Western Kentucky University Gordon Ford College of Business. It’s been a great move for both family and I.

I greatly enjoy working with Professor Andrew Head and the rest of the Finance faculty as we continue to grow and expand the offerings in an already-robust B.S. Finance (Financial Planning track) program. While I truly miss my students at my previous college, I enjoy providing instruction to the new students in my investments, retirement planning, and estate planning classes. I especially enjoy challenging students to acquire the personal verbal communication and networking skills that employers strongly desire, and in guiding them to develop S.M.A.R.T. goals  where they work on becoming a better person and future coach to others each and every day.

I’m taking students to conferences. Also, I’m taking students to visit firms to expose them to different business models and what a “day in the life” of a financial planner really looks like. These future financial planners are highly motivated to learn; they also surprise me with their capabilities every day. After just a few months, I would conclude that it’s a good fit for me here at WKU, and I look forward to helping the program continue to prosper.

On the fiduciary front, I continue to support several organizations who are involved in the fiduciary wars; most of the battlegrounds are in Washington. I travel to D.C. several times a year and seek to provide information to policy makers about the fiduciary standard, how it is and can be applied, and its benefits for individual Americans and for America’s economy and future prosperity. And, of course, I continue my writings on this issue, with articles in several publications and in my own blog.

FN: When we last spoke, it was before the DOL came out with their first (failed) attempt at redefining fiduciary. In our earlier interview, you made much of the DOL’s higher standard – which you called “acting in the sole interest of the client” – versus the SEC’s standard of “acting in the best interest of the client.” Since then, it looks like the DOL, while broadening the definition of “fiduciary” to include those advising IRA plans, has opted for the lesser standard of “best interest.” Why do you think the DOL has done this?
Rhoades: The DOL has the authority to enact class exemptions, in which the somewhat lower “best interests” fiduciary standard is applied, rather than ERISA’s strict “sole interests” fiduciary standard. It has chosen to do this, and the DOL has made a determination that such a class exemption is justified.

By way of explanation, under the sole interest standard of conduct, which is applicable to trustees, all conflicts of interest must be avoided. The U.S. Supreme Court recently again confirmed, in Tibble v. Edison, the long-held understanding that ERISA’s fiduciary standards are “derived from the common law of trusts.”

The sole interest rule prohibits the fiduciary from placing itself, himself, or herself in a position where the personal interest of the fiduciary may conflict or possibly may conflict with the interests of the entrustor (e.g., beneficiary or client). Essentially, where a conflict of interest exists, there arises a conclusive presumption that the transaction that creates the conflict of interest is invalid; this presumption is called “no further inquiry” rule. What that label emphasizes, as the official comment to the Uniform Trust Code of 2000 explains, is that “transactions involving trust property entered into by a trustee for the trustee’s own personal account [are] voidable without further proof.” Courts invalidate a conflicted transaction under the sole interests standard without regard to its merits – not because there is fraud, but because there may be fraud.

Under ERISA, the “sole interests” fiduciary standard is also augmented by the prohibited transaction rules. ERISA section 406(a) prohibits various types of transactions between a plan and parties in interest. ERISA states that a plan fiduciary shall not cause the plan to engage in a transaction if the plan fiduciary knows or should know that such transaction constitutes a direct or indirect sale of property or furnishing of goods or services, or results in a transfer of any plan assets to any “party in interest.” These rules implicate the sale of investment products (including insurance contracts, such as annuities) to the plan and the payment to the broker, consultant, or investment adviser a fee or commission in connection therewith.

Now, obviously, the strict application of the prohibited transaction rules would mean hardly anyone could provide services to an ERISA-covered plan, unless that person was acting gratuitously. And, of course, we operate under capitalism. Hence, exemptions are necessary from the prohibited transaction rules.

Certain transactions with parties in interest are exempt from the prohibited transaction rules, either because they are permitted by a statutory exemption in ERISA (of which there are 20), because they are covered under a class exemption issued by the DOL, or because the DOL has granted an individual exemption.

The best known and perhaps most important statutory exemption is found in Section 408(b)(2), allowing the use of plan assets to pay fees for services. However, the exemption applies strictly to a fiduciary’s “contracting or making reasonable arrangements” with the plan’s service provider for “services that are necessary” for plan operation, and only if no more than “reasonable compensation” is paid for them. As often occurs with either statutory or class or individual exemptions, there are often substantial and significant conditions attached to the exemption.

The DOL may grant administrative exemptions to an individual or a class of individuals allowing them to engage in a variety of transactions involving employee benefit plans. DOL administrative exemptions are referred to as Prohibited Transaction Exemptions (PTEs). Class exemptions are administrative “blanket” exemptions that permit a person to engage in a similar transaction or a series of similar transactions with a plan in accordance with the terms and conditions of the class exemption, without requiring the person to obtain an individual exemption from the DOL.

Under the express terms of ERISA, the “Secretary may not grant an exemption under this subsection unless he finds that such exemption is – (1) administratively feasible, (2) in the interests of the plan and of its participants and beneficiaries, and (3) protective of the rights of participants and beneficiaries of such plan.”

So, ERISA permits the U.S. Department of Labor to ratchet down the fiduciary standard of conduct, from the sole interests standard found in trust law and from the prohibited transaction rules – to a “best interests” fiduciary standard. This is provided that, when the DOL acts to provide an exemption, the rules adopted are protective of the rights of the plan participants and that the rules are in the best interests of the plan and its participants.

So, in essence, the DOL can move the standard from “sole interests” to “best interests” if the rule is protective of the plan and its participants. The “best interests” fiduciary standard is somewhat more flexible. It permits transactions between a fiduciary and the assets under its, his, or her charge, but only if there is a mutual benefit to both the advisor and the client. At a minimum, the entrustor (client, or plan, or plan participant) should not be harmed by any transaction that involves the fiduciary.

FN: Why might the lower “best interests” standard actually harm retirement savers if DOL’s rules become finalized?
Rhoades: It really all depends on how the “best interests” standard is applied. If applied correctly, retirement savers won’t be harmed. If applied incorrectly, substantial harm can result.

The fiduciary standard is referred to as “the highest standard under the law.” In fact, the “best interests” standard is somewhat more lenient than the “sole interests” standard, in the sense that certain transactions proposed by a fiduciary may be permitted under the “best interests” standard which are otherwise prohibited under the “sole interests” standard, provided that the proposed transaction meets a set of criteria. In essence, properly applied, the “best interests” standard is not that far removed from the tough “sole interests” standard of conduct, and should not cause harm to retirement savers.

Fundamentally, there are just two types of relationships in commerce today – arms-length relationships involving the seller and purchaser of a product or service, and fiduciary-entrustor relationships involving certain services arrangements in which public policy dictates that fiduciary protections are necessary.

In an arms-length relationship consent by a customer to proceed, when a conflict of interest is present, is generally permitted. Caveat emptor (“let the buyer beware”) applies to such merchandiser-customer relationships. The customer is not represented by the merchandiser but is rather in an adverse relationship – that of seller and purchaser.

In such arms-length relationships, it is a fundamental principle of the common law that volenti non fit injuria – to one who is willing, no wrong is done. Customer consent to the transaction generally gives rise to estoppel – i.e., the customer cannot later state that he or she can escape from the transaction because a conflict of interest was present, or because full awareness of the ramifications of the conflict of interest were absent. The customer, in such instances, bears the duty of negotiating a fair bargain. The law permits customers, in arms-length relationships, to enter into “dumb bargains.” Generally, jurists will not set aside even grossly unfair bargains unless fraud, misrepresentation, or mutual mistake of fact exists, or unless the contract is so unjust and burdensome that it is deemed “unconscionable.”

But the fiduciary relationship is altogether different. The entrustor (client) and fiduciary actor have formed a relationship based upon trust and confidence. In such a form of relationship, the law guards against the fiduciary taking advantage of such trust. As a result, judicial scrutiny of aspects of the relationship occurs with a sharp eye toward any transgressions that might be committed by the fiduciary.

Hence, mere consent by a client in writing to a breach of the fiduciary obligation is not, in itself, sufficient to create waiver or estoppel. If this were the case, fiduciary obligations – even core obligations of the fiduciary – would be easily subject to waiver.

Instead, to create an estoppel situation, preventing the client from later challenging the validity of the transaction that occurred, the fiduciary is required to undertake a series of steps.

First, disclosure of all material facts to the client must occur. For some commentators on the fiduciary obligations of investment advisers, this is all they believe that is required; often this erroneous conclusion is derived from misinterpretations of the landmark decision of SEC v. Capital Gains Research Bureau.

Second, the disclosure must be affirmatively made and timely undertaken. In a fiduciary relationship, the client’s “duty of inquiry” and the client’s “duty to read” are limited; the burden of ensuring disclosure is received is largely borne by the fiduciary. Disclosure must also occur in advance of the contemplated transaction. For example, receipt of a prospectus following a transaction in which a conflict of interest is present is insufficient, as it does not constitute timely disclosure of all material facts.

Third, the disclosure must lead to the client’s understanding. The fiduciary must be aware of the client’s capacity to understand, and then must match the extent and form of the disclosure to the client’s knowledge base and cognitive abilities.

Fourth, the informed consent of the client must be affirmatively secured. Silence is not consent. Also, consent cannot be obtained through coercion nor sales pressure.

Fifth, at all times, the transaction must be substantively fair to the client. If an alternative exists which would result in a more favorable outcome to the client, this would be a material fact which would be required to be disclosed. A client who truly understands the situation would likely never gratuitously make a gift to the advisor where the client would be, in essence, harmed.

These requirements of the common law – derived from judicial decisions over hundreds of years – have found their way into our statutes. For example, ERISA’s exclusive benefit rule unyieldingly commands employee benefit plan fiduciaries to discharge their duties with respect to a plan solely in the interest of the plan’s participants and for the exclusive purpose of providing benefits to them and their beneficiaries. And the Investment Advisers Act of 1940 was widely known to impose fiduciary duties upon investment advisers from its very inception, and it contains an important provision that prevents waiver by the client of the investment adviser’s duties to that client.

So, in essence, if conflicts of interest are properly managed under the “best interests” fiduciary standard, the client won’t be harmed. But, regulators must not permit these fiduciary protections to be diminished, or else harm can and will result. Certainly, regulators should not permit conflicts of interest to just be “disclosed away.” Much more is required of the fiduciary, even under the “best interests” standard.

FN: Many ERISA attorneys I’ve spoken to suggest the current “Best Interest Contract Exemption” language in the DOL’s proposed rule actually allows brokers to now call themselves “fiduciaries” while continuing to charge conflict-of-interest fees. This would seem to go against the DOL’s argument that they are saving retirement savers billions of dollars per year (since that savings number is predicated on eliminating the conflict-of-interest fees). [Ed. note: Within the current language, only index funds and higher cost classes of individual funds will not be permitted to contain conflict-of-interest fees. The current language does not automatically disallow single class funds with conflict-of-interest fees unless there is a fund with an identical portfolio and no conflict-of-interest fee.] What language would you recommend the DOL adopt that would allow them to actually live up to the hype of eliminating these fees?
Rhoades: I believe BICE could be misconstrued, in several respects, so as to permit over time the perverse economic incentives that result from conflicts of interest. Accordingly, I believe we have to view the Best Interest Contract Exemption (or BICE) as a temporary, interim measure, designed to permit the investment industry time to adjust to a true fiduciary environment. Otherwise, BICE could institutionalize best practices, particularly if it is not applied correctly in FINRA arbitration, which appears likely.

Hence, first and foremost, I have suggested to the DOL that it “sunset” BICE after a period of 6-7 years. The provision of investment advice has been in a state of transition for several decades. In just the past decade the transition away from product sales to fiduciary relationships in which fees are paid directly by the client has accelerated dramatically. New deployments of technology have aided advisors serving the middle class, and the increased competition among fee-only investment advisers continues to drive down the level of compensation. Hence, I don’t think that BICE, which creates an exemption that could, over time, swallow up the fiduciary principle, should be permitted to exist indefinitely. If the industry does not change enough in the next 6-7, BICE could always be extended at the end of any sunset period, but the industry would have to justify its continuation.

Second, BICE’s permission of differential compensation to the firm (although not to the individual advisor) presents a huge difficulty. These differential compensation schemes create perverse economic incentives, which in turn jeopardize the entire U.S. private retirement system. Moreover, to the extent financial advisers or their firms might believe that, under BICE, they can recommend higher-cost products that pay their firm more, with no harm to the client, these investment advisers are not acting as expert advisers with the due care required of a fiduciary. The academic evidence is compelling that higher-cost products possess a heavy drag which, on average, negatively affects returns. Accordingly, for the period of time during which BICE might be in existence, I recommend that the DOL expressly set forth that the bar for receipt of higher compensation should be set high. The standard of due care should be expressly set forth, and the burden of proof for adherence to such standard should rest, in any judicial or arbitration proceedings, with the firm and the adviser. Additionally, where there is a dispute involving investment product selection, and where differential compensation arrangements exist, expert testimony should be backed either by extensive back testing, or commonly accepted academic evidence, or both, under the Daubert standard for the admission of expert evidence.

Third, the DOL should set forth examples of unreasonable compensation. While I do not believe that the U.S. Department of Labor should declare what constitutes “reasonable compensation,” it would be proper for the DOL to provide examples of unreasonable compensation.

For example, suppose a defined contribution plan participant seeks to rollover a $500,000 401k account into an IRA account. The fiduciary adviser, under BICE, seeks to charge a commission. A single family of mutual funds were to be recommended, due to breakpoints on the commissions paid on “A” class shares, falls to 2% for a $500,000 investment. However, no breakpoint discounts are typically provided on sales of many variable annuity products, nor for nearly all equity indexed annuities and fixed annuities. This provides an economic incentive to a broker-dealer firm and/or insurance company to recommend variable annuities over mutual funds. Or to recommend spreading out investments over many different fund families in order to maximize the commissions (as the break-point discounts would be less). These economic incentives are powerful, as evidenced by the substantial sales of variable annuities despite their often-high fees and costs or other unfavorable characteristics. It would be easy for the U.S. Department of Labor to illustrate that a 5% commission on a $500,000 variable annuity sale, in conjunction with a rollover into an IRA account, amounting to $25,000, would be “unreasonable.”

Fourth, the DOL should tie the receipt of compensation, in time, to the delivery of services. An up-front commission should not pay for years of services that, due to different circumstances, may not actually be ever delivered. For example, a 5.75% sales load on a Class A stock mutual fund sale possesses a 0.43% impact on the returns of that fund, over a 15-year period, assuming the fund has a 10% annual return. But statistical data tells us that stock mutual funds are only held, on average, for four years. We need to be wary of letting sales loads to be paid up front for future services that may be impliedly promised but which are never delivered.

Fifth, if 12b-1 fees are to be paid to a broker dealer firm, services of an investment advisory nature must be provided; once those services stop, so should the 12b-1 fees. A brokerage firm receiving ongoing 0.25% 12b-1 fees from mutual funds held in a $500,000 brokerage account, or $1,250 a year, but not providing ongoing investment advice, is simply receiving “unreasonable compensation.” Only a minimal account maintenance fee should be charged, instead.

Sixth, some broker-dealer firms and insurance companies might take the position that during the first year of a client engagement much higher compensation is allowed under BICE, if financial planning services (such as tax planning, estate planning recommendations, reviews of property and casualty insurance, etc.) are undertaken. Certainly more work is required in the first year to structure and implement the investment portfolio for the client and to explain the investment strategy and the characteristics of the investment products. However, it must be remembered that we are dealing with IRA accounts and qualified retirement accounts under BICE. While fees for investment advice can be deducted (directly by the investment adviser, or indirectly via the product provider) from such accounts under the I.R.C., there is no provision in the tax law that permits fees to be paid from those accounts for other services such as most aspects of financial planning. It is possible that the DOL or the Treasury Department may issue a cautionary warning to financial advisors.

The Best Interests Contract Exemption could be a nice transitional rule, if it is correctly interpreted and applied. The DOL needs to provide a lot more examples of what is not permitted under BICE, to aid in its future transition. And even then, BICE needs to sunset, because over time pressures will mount to misinterpret BICE. If this were to occur, BICE could eviscerate ERISA’s strong fiduciary standard.

FN: In 2012 you told us of a rather novel idea where revenue sharing could only exist in a 401k plan if those fees could be reimbursed to the retirement savers investing in those funds and not used to pay general fund expenses. Fred Reish and others have since advocated this and it appears many plans are now doing this. How do you see the same reimbursement methodology applying to 12b-1 fees in IRA situations, (i.e., plans that do not include a recordkeeper that is normally responsible for accounted for this reimbursement)?
Rhoades: About 80% of 12b-1 fees collected by mutual fund complexes are paid to the broker-dealers at which the mutual fund is held. The brokerage firm simply needs to credit the client back the amount of the 12b-1 fee, either as a credit against an investment advisory fee or as a cash credit to the fund.

Bank trust departments have, in most states, been doing this for years. There is no reason brokers cannot do it as well.

We need to remove conflicts of interest, not just disclose them. Getting rid of 12b-1 fees altogether would be the preferred solution. 12b-1 fees are seldom understood by investors and they don’t provide any real benefits to fund shareholders. They are also anti-competitive – in the sense that individual investors can’t really negotiate these fees. There is no reason a $2m portfolio client should be paying a 1% 12b-1 fee, assuming the client was placed in Class C shares. But, if we can’t get rid of 12b-1 fees altogether, let’s get the majority of these fees back into the hands of the clients.

FN: The DOL has, knowingly or unknowingly, introduced a twist that calls into question the fiduciary validity of using conflict-of-interest funds even when reimbursement occurs. Regulators have cited peer reviewed academic studies that show conflict-of-interest funds significantly underperform funds without conflict of interest. As with nearly all performance-based studies, the conclusions are based on aggregate (i.e., average) data, not individual fund data. That means that while, on average, the typical conflict-of-interest fund will underperform the non-conflict-of-interest fund by 1%, there is no doubt conflict-of-interest funds that don’t underperform exist (and do ones that underperform by much more than 1%). This suggests plan sponsors (and investment advisers) increase their fiduciary liability by using conflict-of-interest funds. The question is, under what real-life circumstances will this liability be realized and what is the best way to avoid it.
Rhoades: Investing is a zero-sum game, plain and simple. We now possess absolutely compelling academic research that supports the view that low-cost investment strategies outperform high-cost investment strategies, on average, over time.

That’s not to say that certain higher-cost strategies may not be worthwhile. Exposure to certain factors may involve slightly higher fund management fees. International funds may have slightly higher costs. Tax-managed, low-turnover stock funds in taxable accounts may be worthwhile.

I’m not saying that active investment management is doomed. No one can “disprove” active management, because there are literally thousands of active management strategies, and new ones arise each day. But low-cost passive strategies, on average, outperform high-cost active strategies, by a wide margin. And alpha is increasingly becoming more difficult to generate, for a variety of reasons, even before fees are deducted.

But I would say that fiduciaries possess an absolute obligation to be the careful steward of their clients’ funds, and that means controlling fees and costs. Every fiduciary is entitled to expert-level professional compensation (if, of course, they are doing their expert job).

I think that, given the academic research present, investment advisers have a lot of due diligence to do. They need to justify, in each and every instance, why a higher-cost fund is better than a lower-cost fund. And they need to back this up with back-testing or with academic research, to provide a basis for expert testimony to be admitted should litigation ensue. This is especially true when a conflict-of-interest is present, as the burden of proof shifts to the fiduciary under the best interests standard to justify the greater expenditure of the client’s funds.

Remember – fiduciaries represent the client, not the fund companies. Fiduciaries act as shoppers – purchaser’s representatives. Hence, fiduciaries need to look for the best bargains. We are dealing with other’s people’s money, and it is not our job to play with it, nor use our client’s funds imprudently.

I’m not convinced that very-low-cost active managers can’t be chosen who may outperform; further research is needed here. But certainly fiduciaries are more easily protected when going the passive investment management route, with very low total fees (management and administrative fees, transaction costs, and opportunity costs). And higher-cost funds should be avoided, always.

This is likely what high-cost insurance and investment providers (asset managers) fear the most – the rise of an army of knowledgeable, expert fiduciaries, pressuring product manufacturers to lower fees and costs.

FN: How likely is it the DOL’s new rule will ever be implemented? Take us through an expected time line of events and the likely response from opponents, including a new Republican administration.
Rhoades: The hurdles to implementation remain substantial, but it’s possible the DOL rule will make it through. The most comprehensive, intensive effort to influence Congress than has been seen in several years is now taking place in Washington, D.C.. Wall Street and the insurance companies are pouring hundreds of millions of dollars into campaign contributions, visits by lobbyists and CEOs, paid advertising campaigns on a national scale, and more. Every time I visit a Congressional staffer, they remark on the huge number of visits they have received from those opposed to the Department of Labor’s fiduciary rule. The pro-fiduciary advocates are making efforts, but we lack the manpower to visit every Congressional office, multiple times. I would say pro-fiduciary advocates have one visit to a Congressional office this year for every 30-40 (or more) visits by anti-fiduciary lobbyists.

While one would think that plan sponsors – business interests – would support DOL fiduciary rulemaking (as they are often “on the hook” in excessive-fee cases, while brokers and insurance companies escape responsibility under the suitability standard for their advice to plan sponsors), SIFMA and FSI have convinced many business owners that the DOL fiduciary bill would hurt them, not help them.

After ensuring that Rep. Wagner’s bill (voted on in the House a couple of weeks ago) didn’t receive bi-partisan support, consumer groups (including AARP, Consumer Federation of America, Consumers Union) and other pro-fiduciary groups are addressing the next most pressing concern – Rep. Richard Neal’s bill in the House of Representatives. If passed, it would establish a “best interests” standard of conduct that – in actuality – is not in the best interests of investors. This is a SIFMA-funded and FINRA-supported standard that just preserves the suitability standard, in essence. Making certain that the bill does not receive bi-partisan support is very, very important, as we head into negotiations on the budget.

By December 11th of this year negotiations on the budget are supposed to be finalized. Congressional leadership has already stated that stopping the Dept. of Labor is one of their few major priorities in the budget negotiations with President Obama. While President Obama has stood firmly behind the Department of Labor, if bipartisanship support for a bill that would stop the DOL rule-making effort emerges to any significant degree (even though the bill would be vetoed), then President Obama might be tempted to give away fiduciary rule-making in the budget negotiation process. While a budget deal is possible by Dec. 11th, don’t be surprised if the fight over the budget is not extended – for at least several days.

If the Congressional challenges to the DOL’s rulemaking in 2015 are defeated, then I expect the DOL to publish a final rule in the first quarter of 2016. The effective date would likely be eight months later – in other words, near the end of 2016. And, throughout 2016, there would likely be several new legislative efforts to stop the DOL rulemaking – all backed by Wall Street and the insurance companies.

Even if the DOL’s rule is finalized and implemented, if a Republican Administration takes office in early 2017, I would anticipate that the rule would be repealed, in short measure.

There is a path forward. But it is still an uphill battle, for those who support a fiduciary standard. A lot of challenges will be mounted. Money talks – and in Washington, DC it talks very loud. Still, I try to remain optimistic. It’s a battle worth fighting.

FN: Why do you think the SEC failed to take action on eliminating 12b-1 fees? In the same vein, the SEC was once well ahead of the DOL when it came to creating a Universal Fiduciary Standard. What obstacles did they come upon and what will it take for the SEC to overcome these obstacles.
Rhoades: To answer this question, let’s look at the staff at the SEC. Most of the key senior staff at the SEC working on fiduciary issues, and 12b-1 fees, hail from Wall Street broker-dealer firms, asset managers, or the law firms that serve broker-dealer firms, investment banks, and asset management firms. And, Wall Street encourages its executives to go to work at the SEC for a period of time. It’s not uncommon to see Wall Street firms pay large bonuses to those who accept government jobs.

Of course, staffers (both senior and junior) who work at the SEC sometimes want to transition to much higher-paying jobs when they leave the SEC. So, some staffers are unlikely to be steadfast in writing rules that oppose the interests of prospective employers.

Can you name me one SEC staffer involved in writing fiduciary rules who has worked as a fiduciary investment adviser in an independent RIA firm (not a dual registrant, or an asset management firm) serving individual investors? I can’t.

Over the last 40 years the SEC has gutted the Advisers Act. They permit waivers of core fiduciary duties to take place. The SEC refused to apply the Advisers Act to the advisory activities of broker-dealers. They now permit the “name game” – in which anyone can call themselves anything – even “investment advisor” if they are only a broker. And they permit hat-switching, and the wearing of two hats (fiduciary or non-fiduciary) at the same time. In the 1970’s the SEC permitted brokers to recommend investment managers (i.e., mutual funds), but not be held to a standard of care in doing so; the suitability doctrine negates the standard of care that nearly every other services provider in this country possesses, but brokers escape liability as they don’t possess a duty of due care in recommending mutual funds.

The SEC is a mess. And unless it has an extremely strong Chair, I don’t see how the SEC will reverse course and right its past wrongs. And that Chair will need to clean house, and bring in senior staff that does not possess any allegiance to the current antiquated product sales industry.

I’m actually fearful of SEC rulemaking on fiduciary; I think it will just further create “particular exceptions” that end up further swallowing the fiduciary principle.

As to 12b-1 fees, which are nothing more than “advisory fees in drag” (and likely “special compensation” triggering registration under the Advisers Act), the SEC had ample examination of them. But, the revolving door of Wall Street exists, and 12b-1 fee elimination fell by the wayside.

FN: We’ve seen a growing trend among many fiduciary advocates to question to practical value of achieving a universal fiduciary standard via the governmental regulatory route. Some, like you, have suggested a better path might be to rely on the free market to accomplish this. Explain what you’ve proposed to do this and what kind of feedback you’ve received on your idea.
Rhoades: I remain in favor of the DOL rule-making, provided the final rule strengthens the BICE exemption and, hopefully, sunsets it. I also think the “education exemption” needs to sunset. But if the DOL comes out with a substantially weakened fiduciary rulemaking, I would likely have to oppose it.

There is danger in proceeding with any rule-making, in that it might lower the fiduciary standard. It’s a real danger, and one that pro-fiduciary advocates are very attentive to.

Regardless of whether our regulators get fiduciary rulemaking right, there is a path forward for those who aspire to practice as expert, trusted advisers – and not as product salespeople. In fact, I think the vast majority of younger practitioners want to avoid conflicts of interest and practice as “bona fide fiduciaries,” as I call it. It’s just that many are in firms where this is not allowed.

But young advisors will flee these firms, as they have been doing. There are some major “roll-up” firms that are attracting teams away from the wirehouses. The wirehouses’ market share will continue to decline. As will the market share of insurance companies. The DOL rule-making, if it is finalized and implemented, will greatly accelerate this pace of change.

If the major brokerage firms don’t adopt fiduciary business models – not “F.I.N.O.” (fiduciary in name only) – but truly bona fide fiduciary practices in which conflicts of interest are avoided – over time they will continue to diminish. Advisors will leave them for greener (fiduciary) pastures. And the best talent coming out of finance and financial planning university programs won’t desire to join Wall Street firms – and to a large degree this is already happening. Some large broker-dealer firms have some good fiduciary platforms already in place, in which conflicts are nearly all avoided. But most do not. Those that do not are likely to implode, at some time in the future.

I was once asked at a meeting of large broker-dealer firms how the large firms could manage their fiduciary duties to their shareholders, if they adopted fiduciary standards (which, by necessity, result in lower fees, and hence lower profits to shareholders). The answer was self-evident and immediately conveyed – you won’t have a firm, nor shareholders, of any size in the distant (or nearer) future. Your market share will continue to decline, because you won’t be able to hold onto enough business under your current conflicted business models.

Clients want trusted advisors. Advisors want to be trusted, expert advisors. You can’t sell what people don’t really want, and over time the “disguise” you wear will be revealed. “Fiduciary oaths” (such as that of The Committee for the Fiduciary Standard, available on their web site) and “Ask Your Advisor” checklists will be promulgated, aiding consumers as they search for trusted advisors.

I’ve also heard increasing calls, from advisors, for a new professional organization, in which fiduciary standards are adopted and fully explained, and then voluntarily adopted by members as a means of differentiation from “Fiduciaries in Name Only.” There is an undercurrent that has developed among many in the financial planning community, largely because of the view that the current trade organizations are not advancing fast enough to embrace bona fide fiduciary duties and a true profession. A new organization may be one way to better “win in the marketplace.” For now I am hopeful that other organizations might get better at embracing fiduciary standards, and become marketplace leaders; but the patience of many is growing thin. I’m not certain where this will lead, and being pre-occupied with battles in Washington, D.C. at present I’m not certain whether there is even time to explore this option. Time will tell.

FN: One of the chief complaints among industry lobbyists against removing conflict of interest fees is that it will cause smaller clients to lose their service. You’ve experienced quite the opposite first hand. How do you see smaller clients being served in a pure fiduciary environment now and how extensive is the availability of fiduciary advisers to smaller clients today? What do you expect to see brokerage firms do assuming the DOL’s new rule prevents them from charging conflict-of-interest fees from clients?
Rhoades: I’ve reached out to advisors on this issue, and have discovered that there are hundreds, if not many thousands, who already serve small clients, and do so very cost-effectively, as fiduciaries. I’m not saying that there won’t be any disruption if the DOL’s rules go into effect and if the SEC were to follow with a strong fiduciary rule. But I believe it is manageable.

Moreover, I think that once we shed the sales product cloud of financial planning and move to fiduciary business models, the demand for financial planning advice will soar. This will require innovation, and a great deal many more financial advisors to be minted from our university degree programs. And, as a true profession emerges, more students will be attracted to pursue a degree in financial planning.

We must recognize that the problem currently existing is that which George Akerlof explained in his Nobel Prize-winning economic paper, The Market for Lemons. As long as consumers can’t distinguish quality among investment and financial advice and as long as higher compensation results from business models founded on sales, the fiduciary business model has an uphill battle. But, over time, this battle, as tough as it is, can and will be won. It’s being won in many corners already, and this will spread.

FN: The DOL points to robo-advisors as the solution to small clients. To date, however, robo-advisors lack the knowledge engine (i.e., a sci-fi level of artificial intelligence) to interact and engage with humans. Most retirement savers have questions that go well beyond the simple asset allocation recommendations robo-advisors are limited to. Where do you see robo-advisors in the future? Will they become mere tools? Do they even exist in the future?
Rhoades: I’m concerned that some robo-advisors, once they plow through their contributed capital, won’t have reached the critical mass necessary to be self-sustaining, much less profitable. I’m also concerned that some “robo-advisors” have client intake processes that function much like call centers – without the advice given on critical issues such as whether to use funds to pay down debt (instead of investing), or whether a rollover to an IRA is really a good idea (including discussions of NUA and other strategies that might apply).

Also, great care must be undertaken in asset allocation decisions – we need to move away from “risk tolerance” algorithms to hands-on “risk need” assessments based upon a total view of the client’s goals and financial situation; this requires a human touch in my view. Some robo-advisors don’t provide enough of this human touch.

However, I think robo-advisors are reducing the price of investment management. While technology will continue to aid financial planning, from both the standpoint of advisors and clients, for many decades to come I believe financial planning will require substantial involvement by an expert advisor, in consulting the individual client.

What’s the result of all this? Probably a split in the way fees are charged. Financial planning fees will be based on hourly fees, fixed project fees, annual retainers, subscriptions, and/or some combination of the foregoing. Investment management processes will achieve economies of scale, with the aid of technology, and investment management fees will be separately paid and will be lower in amount.

FN: How should financial advisors seek to comply with the fiduciary standard?
Rhoades: Fifteen years ago I was practicing as a tax and estate planning attorney. I decided, for the intellectual challenge and to increase the depth of relationships I had with my clients, that I would seek to also become a financial planner and investment adviser. I attended a conference in the Summer of 2001. At that conference spoke the wise sage of our emerging profession, Harold Evensky, who said one thing that I will always remember, and I’ll paraphrase: “If you are going to be a financial advisor, commit your body and soul to it – 100%. This requires a personal commitment from you. Financial planning is a full-time, not a part-time, profession.”

Harold’s words of wisdom still apply today. To become a true expert in this field, which is both very broad and very deep in terms of the knowledge and skill sets required, requires a substantial time commitment. As does maintaining that competence. As an experienced financial planner, if you are not reading or listening to podcasts at least several hours a week, you are not likely keeping abreast of the latest changes in the law, new techniques that have emerged, and new investment strategies. The body of knowledge is constantly being changed and supplemented.

I would add, today, that if you are going to become a financial advisor, then commit to providing fiduciary advice – fully and completely. Don’t engage in product sales. Don’t wear two hats. Become a trusted advisor.

Why? – Because you cannot be both a product salesperson and a trusted advisor at the same time. The variable compensation structures in the industry simply provide too much economic incentive to individuals, and it becomes impossible to maintain true objectivity. Even the U.S. Supreme Court has stated, numerous times, that fiduciary law acts to remove conflicts of interest, for regardless of any actual evil intent it is the unconscious motivations that will work their way into decision-making, on behalf of a client, and lead the fiduciary advisor down the wrong path. A great deal of research into the behavioral biases of both clients of advisors, and advisors themselves, confirms this understanding.

Jurists have known of the pernicious influence of conflicts of interest for centuries. As an eloquent Tennessee jurist put it before the Civil War, the fiduciary principle “has its foundation, not so much in the commission of actual fraud, but in that profound knowledge of the human heart which dictated that hallowed petition, “Lead us not into temptation, but deliver us from evil,” and that caused the announcement of the infallible truth, that “a man cannot serve two masters.”

So, please permit me to imitate Harold Evensky, and simply say this. If you are going to be a fiduciary financial advisor, commit to it fully and completely. Choose a firm and a practice structure and put in place the policies whereby you will avoid conflicts of interest, to the extent possible. Never try to straddle the fence and be both a fiduciary and a product salesperson. The roles are simply incompatible with each other.

We need to commit, each and every one of us, to becoming true professionals. Lifelong learning. Higher degrees of due diligence and expertise applied to client’s needs. Absolute loyalty to the clients. And the receipt of compensation we deserve, as professionals, on a par with the best attorneys and CPAs.

FN: What one thing can you envision on the horizon that the industry is least expecting? What’s the best way to prepare for it?
Rhoades: The SEC wants to permit third-party exams of RIAs, and it is planning to issue a proposed rule on this in “early 2016.” This is code for “FINRA takeover.” While other providers of third-party exams, including some for-profit companies, might step in for RIAs who are not affiliated with a broker-dealer, the 88% of investment adviser representatives who are already regulated by FINRA will be regulated even more.

Also, once FINRA gets its foot in the door of RIA oversight, I don’t expect it to stop. It will lobby, over time, for rule-making authority over RIAs. And if you think FINRA is likely to enact rules that preserve the fiduciary standard, think again. Just take a look at the proposed “best interests” standard that FINRA endorsed – which is nothing more than suitability with white wash.

2016 will be a year in which the independent RIA community has to again seek to keep FINRA oversight out of the RIA space. But, with the SEC likely on FINRA’s side this time, the outcome does not look promising.

It’s time to take off the gloves again, people.

FN: Ron, each of your answers would normally be one article! This is fantastic. I’m sure our readers more than appreciate the time you’ve spent not only on crafting your answers, but working on behalf of the industry. We encourage them to continue reading you on Scholarly Financial Planner.

Are you interested in discovering more about issues confronting 401k fiduciaries? If you buy Mr. Carosa’s book 401(k) Fiduciary Solutions, you’ll have at your fingertips a valuable reference covering the wide spectrum of How-To’s every 401k plan sponsor and service provider wants and needs to know.

Mr. Carosa is available for keynote speaking engagements, especially in venues located in the Northeast, MidAtantic and Midwestern regions of the United States and in the Toronto region of Canada. His new book Hey! What’s My Number? – How to Increase the Odds You Will Retire in Comfort is available from your favorite bookstore.

About Author

Christopher Carosa, CTFA

Christopher Carosa, CTFA

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