May 21, 2010

One of the official goals of the financial-reform bill that the Senate passed Thursday is “to protect consumers from abusive financial services practices.” For all those lofty intentions, however, senators missed an obvious opportunity to safeguard individuals from harmful investment advice.

Where the Senate failed to act was in the standard of care that a financial adviser owes his or her clients.

As it stands, the standard for some financial professionals is what’s known as a fiduciary standard: They have to put their clients’ interests ahead of their own. For others, such as stockbrokers, the guideline is a weaker standard known as suitability: The products they recommend to their clients have to be appropriate for them, but they don’t have to be the best ones at their disposal; given the choice between two investments they might tell a client to make, these advisers can recommend the one that performs worse but pays them a larger commission.

That distinction between the two standards is no problem in and of itself. The problem is that, though the two guidelines have been around for decades, individual investors still can’t tell the difference between them. Furthermore, they regularly overestimate the level of service their adviser actually owes them. People want to believe that the friendly person offering them financial advice has their best interests at heart. Sadly, that’s not always true.

In the post-meltdown debate over financial reform in Washington, one of the ideas that gained some momentum was to simply require a fiduciary standard of care from all advisers who offer personal financial advice. In favor of it were financial professionals that are already regulated by a fiduciary standard, along with consumer advocates; against the change, in general, were stockbrokers and insurance professionals who argued the tougher standard would hamper their business. A few weeks ago, an amendment was offered for the Senate bill which would extend the standard to any professional offering “personalized financial advice.” But the measure didn’t make it into the bill that passed Thursday night. Instead, what went in was a directive for the SEC to study the issue. (To read the exact language, go to page 785 of the bill and read Section 913.)

In this environment, unfortunately, a study is not much more than a way to weasel out of doing something more substantive. The SEC, in fact, extensively studied financial-advice regulation two years ago. So supporters of the fiduciary standard are disappointed by the defeat.

Here’s a statement from Knut Rostad, chairman of an industry group called the Committee for the Fiduciary Standard:

Twenty-three days after Goldman Sachs explained to the entire world, in excruciating detail, how the suitability standard means it’s quite OK to conceal a huge conflict of interest from a client, the Senate overwhelmingly voted their approval and endorsed the Goldman standard for retail clients. This is not the Senate’s proudest moment.

And here’s what Barbara Roper, director of investor protection for the Consumer Federation of America, has to say about the relevant language in the financial-reform bill:


It requires the SEC to waste time and money to study a problem it has already studied extensively. Then it requires the SEC to adopt rules to address any gaps in regulation between brokers and investment advisers, but it denies the agency the authority it would need to address a known gap. As a result, it perpetuates the ability of brokers to dupe unsuspecting investors into relying on them as advisers without requiring them to meet the basic standards that go with being an adviser — a commitment to act in the best interests of the client and to disclose all material information.

Roper says she’s now turning her attention to the reconciliation process between the Senate and House versions of the bill. Rep. Barney Frank (D-Mass.), chairman of the House Committee on Financial Services, has made it a priority to include “a real fiduciary duty in the final bill,” she says, and she hopes Senate Banking Committee Sen. Chris Dodd (D-Conn.), will go along with that.

For investors’ sake, let’s hope so, too.

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