The Decline of the Fiduciary Brand?

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Some years ago, an industry lobbyist at a luncheon preceded a presentation by an NASD (now FINRA) official by asking: "What is the difference between an investment advisor and a broker? Answer: A broker doesn't call you in the middle of dinner."

Advisors continue to make a point of staking out the differences between themselves and brokers, often on the ground that advisors are fiduciaries and brokers are not. However, if the SEC follows a staff recommendation to impose a fiduciary duty on brokers, advisors may lose an important weapon in their marketing arsenal.

The Fiduciary Brand
The fiduciary duty is not just a legal standard; it is also a valuable brand. The Investment Adviser Association, Financial Planning Association, CFP Board of Standards, and National Association of Personal Financial Advisors frequently go out of their way to distinguish investment advisors from brokers on the basis that advisors have a fiduciary duty to their clients and brokers do not. The IAA's Cutting Through the Confusion brochure, for example, specifically highlights the fiduciary status of advisor and non-fiduciary status of brokers.

Many of their members/certificants use the fiduciary standard as a marketing tool. The home page of the firm that I am associated with prominently announces "its strong fiduciary commitment to its clients" and includes a link to a page on Fiduciary Excellence, which leads to a document entitled Fiduciary Standards - The Foundation for Trust. Fiduciary Solutions' NAPFA profile page claims that "'fiduciary' encompasses the heart of the company's business philosophy." Connemara's home page boasts that it is "A Trusted Fiduciary" in 20-pt font.

The fiduciary branding strategy is often explicitly used to distinguish advisors from brokers. Mainstreet Financial Planning heads its home page with: "welcome to a firm that provides advice, not sales." "If you're looking for a financial advisor who will put your needs ahead of commissions," then visit Clarity Financial Planning's home page. Financial Strategies' home page begins by describing the difference between brokers and advisors as follows: the broker "owes his loyalty to the firm, not the client." This pitch echoes NAPFA's position that brokers "are required by federal law to act in the best interest of their employer, not in the best interest of their clients."

NAPFA takes the fiduciary brand to new levels. Its members must sign a Fiduciary Oath. Its Focus on Fiduciary page has links to: Definition of Fiduciary, Fiduciary Difference, Fiduciary Information, Fiduciary Questionnaire, Fiduciary Voice Podcast (with more than 40 individual episodes of the "Focus on the Fiduciary Show"), and three fiduciary-related videos. In case the message has not gotten through, one video bears the unsubtle title "Brokers vs. Advisers" and features an image of a fistful of dollars over the words: "People who look out for their commissions." That's not just marketing; that's bare knuckles marketing.

Fi360 has turned the fiduciary duty into a business model. The firm offers an Accredited Investment Fiduciary (AIF) certification to those who pass an examination on fiduciary practices, satisfy continuing education requirements and annually attest to a code of ethics. For aspiring high priests of the fiduciary church, there is the AIF Analyst (AIFA) designation, which authorizes holders to perform a CEFEX Fiduciary Certification.

Either investment advisors are fooling themselves or the marketing power of the fiduciary brand is real. Some segment of the market for investment advice values the fiduciary brand and may choose an advisor over a broker for that reason. Exclusive ownership of the fiduciary standard means more business for advisors, yet for some reason that is not entirely clear, they are eager to give away the fiduciary brand.

Please, Please Take My Fiduciary Brand . . .
The investment advisor community has spent the last few years lobbying to share their brand with brokers. During the legislative battle over the Dodd-Frank Act of 2010, advisors argued that all brokers who provide investment advice should be subject to the same fiduciary duty as advisors. Many brokers are subject to a fiduciary duty because they are also advisors under the Investment Advisers Act, but many are exempt from the Act. Although the broker community essentially acquiesced in the view that such exempt brokers should be subject to a fiduciary duty, the insurance lobby fought advisors and consumer advocates to a legislative stalemate. Congress passed the buck to the SEC by giving it the authority to impose a fiduciary duty on brokers, but not before conducting a study of the issue.

The SEC staff released its advisor/broker study in January and, consistent with SEC Chairman Mary Schapiro's oft-stated position, recommended applying the fiduciary duty to brokers who provide personalized, retail investment advice. On its face, the fiduciary duty would be the same one that applies to advisors under the Investment Advisers Act. The study's tea leaves seem to presage a general rule requiring that brokers act in the best interest of their clients. That rule would be followed by a series of specific conduct rules that, depending on your point of view, either implement the best interest standard or undermine it.

The SEC's two Republican Commissioners dissented from the study, in part because the staff had not conducted an:

Analysis of the investor returns (controlling for risk and investor characteristics such as age, income, and education) generated under the two existing regulatory regimes.

Because such an analysis is not even feasible, it appears that two votes may have already been cast against any future fiduciary rule proposals. Their thinking must be that Congress authorized the SEC to adopt fiduciary rules because it did not want fiduciary rules to be adopted.

Chairman Schapiro does not need the Republicans' votes, however, so the SEC stands poised to anoint brokers with the fiduciary brand, while advisors stand cheering on the sidelines. The fiduciary brand will no longer be their exclusive property. It will not serve to differentiate advisors' services from brokers' services because advisors will no longer be able to claim that brokers are not fiduciaries. The owner of advisors' fiduciary brand (the government) has given it to brokers. And advisors are celebrating.