Financial Advisers and the F-word: Fiduciary

NASHVILLE – You'd expect a group of well-heeled financial advisers gathering in a plush hotel to keep a civil tongue about them.

Instead, attendees and speakers at the Financial Planning Association's annual convention at the Gaylord Opryland Hotel here couldn't stop dropping the F-word, and talking about the civil unrest — some would say civil war — gripping financial and investment planning today.

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But while the supposed experts are arguing over which words convey and build a sense of trust, consumers are left wondering who they can actually trust. And until regulators and the financial-advice community hash out the dispute a large part of the public may get lost in the middle and feel like it has no one to trust.

The F-word in this case is "fiduciary," which is hardly your typical dirty word. In the world of financial advice, a fiduciary is someone who has the responsibility to exercise prudent judgment while acting in the best interest of the client. You would think that definition would apply to everyone from a beginning stockbroker to the high-brow "wealth counselor" who only accepts multimillion-dollar clients.

You'd think that because, as a consumer of financial advice, that's the bare minimum you'd expect to receive for your money, savvy investment advice that's in your best interest, no matter whether you are looking at stocks and bonds, insurance protection, tax planning or anything else.

Alas, that fiduciary standard isn't always applicable. Registered investment advisers — the people most closely tied to the term "financial planner" — are "fiduciaries," meaning that they are bound to put an investor's interests ahead of their own. Brokers, by comparison, are not fiduciaries and operate under rules that say they only have to recommend "suitable investments" while adhering to certain disclosure and sales rules. (Insurance products typically aren't even considered investments, from a regulatory standpoint, which waters the legal standards down even further.)

The Certified Financial Planners Board of Standards recently revised its definition of fiduciary, starting an uproar within the planning community. But that intra-family squabble is just a side effect of a much bigger fight over the Securities and Exchange Commission's Broker-Dealer Exemption Rule. This rule, widely known as "the Merrill Lynch rule," allows "registered representatives" (read: brokers) to position themselves as financial advisers without being required to act as a fiduciary. Registered reps are exempt from being fiduciaries so long as any financial advice they give is "incidental" to the transactions they facilitate.

The rule's nickname stems from the fact that Merrill, which does not allow its advisers to agree to arrangements where they act as fiduciaries to individual or institutional retirement plans, and other major wirehouses such as Smith Barney are encouraging their representatives to get financial-planning credentials.

The rule and the arguments are going to take years to sort out. Meanwhile, all sides seem to be missing the major point.

I talked to dozens of financial planners at the conference this week. Combined, they represent thousands of clients and billions of dollars in investment portfolios. Not a single one of those advisers has ever had a client come to them and, during the interview process, ask this question: "Are you a fiduciary?"

In all my years of talking to planners, brokers and insurance agents, not a single one has said they've ever been asked that question.

Moreover, it's easy for advisers to say they're fiduciaries and hard to act that way. Even the advisers pushing for the highest possible standards have a conflict of interest, namely that they stand to gain business from already being at that level and maintaining the credibility they want others — including competitors — to step up to.

You could argue that the American public doesn't understand the meaning of fiduciary enough to ask about it, let alone to know how important the concept is to hiring an adviser who will be forthright and honest and with interests aligned to the needs of the customer.

"When someone tells you they'll take care of you and help you meet your needs, they've reached a fiduciary standard, no matter what the rules are or what the standard is," Joseph Borg, securities administrator for the state of Alabama and president of the North American Securities Administrators Association, said at the conference. "The public doesn't need to know what the fiduciary standard is, they have to know they can trust [advisers] and that their trust will be backed up by law."

While the industry is arguing about practice standards, consumers who need help still aren't getting it. A survey released last summer by the Retirement Corp. of America showed that more Americans rely on themselves and their friends for making critical investment decisions, rather than turning to some of the 650,000 people who hold themselves out as offering some form of financial product, process, service or assistance.

Further, the survey showed that a primary reason why consumers preferred their friends and relations is that they were distrustful of the motives of advisers.

So the financial planners and the brokers of the world can argue about the words all they want. Until they can get it together and act like fiduciaries without being required to do it, consumers will be nervous and lacking in trust.

Burying the consumer with fine-print disclosures, talking about high-minded ethics policies and acting like investment scandals only happen to other people dealing in the murkier areas of the investment world solves nothing.

More Americans than ever are in need of some financial counseling. Changes in pension funding, retirement plans, college funding, estate taxes, life expectancy, health care and more make expert assistance something most people ultimately will find essential.

Until the financial services world figures out how to get out of its own way and come up with practical solutions that comfort consumers, however, potential clients will always have a seed of doubt.

Someday, the industry may sort it out; until then, consumers need to realize that in financial services everyone is looking out first for their own interests, no matter what labels they try to put on it.

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