DOL Fiduciary Rule Overturned (Again)

Are you surprised?

As most of you know by now, a federal appeals court vacated the fiduciary rule late last week. On the surface, the decision was a setback for consumers, investors and their advocates and it was a win the broker/dealers, insurers and others in the financial product sales arena who’ve been increasingly under pressure to recommend investments that benefit their clients before themselves.

“It’s definitely a step backward, especially since the rest of the world is moving toward the fiduciary standard,” said our client, Kyle Walters, a partner of L&H CPAs in Dallas. “It’s like the Paris Climate Agreement in which the U.S. was the only major country in the developed world not to sign on.”

Another of HB client, Blake Christian, CPA, said the overturning of the Fiduciary Rule is a concern for larger investors who have significant dollars under management. “There are many games being played with respect to bond pricing, fund fee structures, annuities, Master Limited Partnerships and other investments,” observed Christian, a partner at Long Beach California-based HCVT. “There are a select number of investment advisors who already adopted the Fiduciary Rule before the old rule (now overturned) became mandatory.  These firms will likely leave their voluntary rules in place.”

Since the Fiduciary Rule provides investors with assurance that the investment advisor will be acting on the customer's behalf rather than on behalf of their firm, “there is less likelihood of self-dealing, conflicts and being directed to high-fee investments,” added Christian.

Michael Kitces, CFP, author of the popular Nerd’s Eye View blog, concluded that ultimately, “it’s not about the ‘right’ standard — suitability versus fiduciary — to apply across financial advisors and the brokerage industry. It’s about recognizing that brokers and annuity agents fulfill a sales role that is functionally different than actual advisors.” Job titles and disclosures should accurately reflect the nature of those relationships, Kitces added.

Once the distinction between advice and sales is truly clear, let consumers make their choice, Kitces argued, adding that there are times when the public just wants to talk to a salesperson to help them effect a sales transaction. “After all, when I walk into a clothing store in the mall, I’m not looking for a personal fashion consultant; sometimes I just want a salesperson to help me complete the process of buying what I want, and giving me the relevant product information I need to make the decision,” quipped Kitces.

“As I mentioned earlier, this ruling is definitely a step backward at a time when the industry needs to be moving toward being an advice industry,” noted Walters. “That’s where everything is going one way or the other. I’m not sure how big the impact will be since clients are becoming better educated. Whether [the fiduciary standard] is required or not, clients are asking the right questions of their advisors. If you’re an advisor of any kind, that’s not something you can hide from,” warned Walters.

HB client Pat Runyen, of Valley Forge, Pennsylvania-based Independence Advisors, said it will be hard to determine what will happen long-term if the fiduciary standard dies for good. “Many large brokerage firms already have begun to roll out changes to comply with the rules, and plan to keep some or all of these changes regardless of what happens. My best guess is if the rules go away, the affected firms will likely go back to operating under the ‘suitability’ standard given the lucrative incentives.”

Runyen believes this will ultimately be a “net positive” for individual investors over the long-term given the awareness it has raised. “Since last year, many new clients I’ve met with will ask if I’m held to a fiduciary standard (yes). Before that, no one asked such a question. Many CPAs have told me they’ve been asked the same question,” added Runyen.

Walters agreed with Runyen. “As clients get better educated, they can make the fiduciary standard a priority when choosing who to work with. It doesn’t matter from a legality standpoint. They’re going to vote with their feet.”

According to Christian, those who are acting in a trustee or administrator role will be wise to deal with investment firms that continue to operate under the Fiduciary Rule provisions.  “This will offer the trustee/ administrator added protection if a contingent beneficiary or other interested party brings an action against trustee/ administrator,” added Christian. 

Conclusion

Our Take—as always, the best educated consumers—and the most ethical advisors—will find each other eventually and they’ll win in the end.

TAGS, Kyle Walters, Michael Kitces, Pat Runyen, Blake Christian, L&H CPAs, Nerd’s Eye View, Independence Advisors, HCVT

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