MONEY

Should Personal Finance Writers Be Liable for Bad Advice?

After I argued last week that Congress ought to force financial advisers to do a better job for their clients, a reader posted a related question: Would personal finance journalists have to meet these higher standards as well? He followed up with an email:

George, for this fiduciary responsibility that you are advocating — shouldn’t it also apply to you and the other columnists who post advice on CNNMoney? For that matter, why not to Suze Orman and Jim Cramer? Shouldn’t you be able to be sued if your advice doesn’t work out for an investor that took it?

Fair questions.

I can’t say I have years of experience in the field of securities law and regulation, but here’s my short answer: No.

A slightly longer answer (none of which should be understood as an official answer from MONEY’s lawyers or owners): The fiduciary standard I discussed would, in the amendment introduced by Senators Akaka, Menendez and Durbin, be expanded to cover “a broker or dealer, when providing personalized investment advice about securities to a retail customer.” Suze Orman, my colleagues at MONEY and CNNMoney.com and I aren’t brokers or dealers, so we wouldn’t be covered by that legislation.

Even though that knocks us out of a fiduciary obligation in this go-round, I think it’s worth exploring whether we financial journalists do in fact offer “personalized investment advice.” You could argue that we do, since at MONEY and CNNMoney.com we regularly answer questions from individuals seeking advice. But I would disagree, for two reasons.

First, our answers to specific questions — along with all the advice we give in articles that aren’t responding to individual readers — aren’t “personalized”; they’re intended to be useful information for anyone who looks at them. Second, to the extent that we do answer a specific person’s question in a column, I’d say there’s a huge qualitative distinction between what we know about the writer and his or her situation (generally, a paragraph of background information) and what an investment professional knows (or should know) about the particular circumstances of the customers he or she is advising. As a general rule, financial journalists most of the time don’t even meet the fiduciary standard’s weaker cousin, the suitability standard, as part of which brokers are instructed, “Know Your Customer.” I think people seeking advice from personal finance journalists have expectations of us that are far different than those they have of financial industry professionals. We journalists are strangers dispensing free advice; financial advisers, however, are meeting them face-to-face and doing business. While they might reasonably assume that we journalists will have intelligent, well-thought-out answers to their questions, I doubt they believe that our obligations to them are as strong as those of someone they’re paying to ensure their financial security.

Another thought: The fiduciary duty, when it is applied, is usually understood as covering someone not simply who is in a trusted position, but also who can profit at a trusting person’s expense by choosing one course of action over another. Whatever advice we financial journalists might give, we wouldn’t make more money by recommending a lousy investment over a good one — a far different situation from that of a broker who might earn a larger commission by selling you a product that’s worse for you than another that earns him less.

But though my colleagues and I might not be legally obligated to give you good advice, we have selfish motives for doing so. The dumber our recommendations, the more likely you are to figure out we’re giving bad advice, and the more likely you are to lose interest in us. It’s a matter of pride — and continued employment — for a journalist to write material that readers find useful and good; none of us wants to develop a reputation for stupidity.

Granted, a fiduciary obligation might establish minimum requirements of professional competency for personal finance journalists. But who needs such a formal standard when you have the Internet? As I have learned from personal experience, if people think I’ve given bad advice, word gets around pretty quickly.

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