Articles About Regulation & Compliance

For almost half a decade now, the United States has tried to implement Federal-level regulations requiring that those who are in the business of providing financial advice to serve as fiduciaries and be required to put their clients’ interests ahead of their own. Thus far, however, these regulatory reforms have failed to hold, as financial services industry product manufacturers and distributors have vehemently argued that such rulemaking would end out preventing consumers from receiving their (conflicted) financial advice in the first place, due to the “cumbersome” requirements inherent in any such fiduciary regulation.

The irony, however, is that despite all this tumult about the potentially adverse impact of fiduciary regulations in the U.S., another set of fiduciary regulations have been established and operating for the past six years in Australia, and are far more comprehensive and disruptive than anything proposed (or even hinted at) in the U.S.

In this guest post, Ashley Murphy, founder of Arete Wealth Strategies (a fee-only financial planning and investment management firm serving Australian/American expatriates), discusses the background and impact of Australia’s fiduciary reforms to its financial services industry, some recent developments as the Australian government evaluates the effects of their fiduciary efforts, and what the implications might be for the U.S. fiduciary movement going forward.

Originating in the aftermath of the Great Recession and first passed by the Australian Parliament in 2012, the Australian “Future of Financial Advice” (FoFA) reforms, which went into effect the following year, sought to address pervasive problems in an Australian financial services industry, which, at the time, lacked oversight and was rife with poor “advice”, scandal, and even outright fraud. It was against that backdrop that lawmakers passed two separate acts – the Corporations Amendment (Future of Financial Advice) Act 2012, and Corporations Amendment (Further Future of Financial Advice Measures) Act 2012 – which (among other things) sought to require financial advisors to act in their clients’ best interest, place a general ban on any payment that might influence any advice or recommendation, and require advisors to provide clients ongoing fee and engagement disclosures, at levels far beyond what the SEC has required of broker-dealers under Regulation Best Interest.

Despite ongoing criticism and intermittent tweaks to the original Acts, there is evidence that FoFA has (at the very least) accomplished some its original goals, as the number of complaints against advisors has decreased, and despite concerns that regulation would reduce access to advice in reality more and more Australians are seeking out financial advice after FoFA (suggesting a general increase in the public’s confidence in and therefore willingness to engage with the industry).

Nonetheless, a subsequent formal inquiry to investigate misconduct in the banking and financial services industry, known as the Hayne Commission, found that up to 90% of advisors who worked for firms that manufacture and sell financial products were still giving conflicted advice that wasn’t the in the best interest of their customers… even though the advisors were compensated solely by fees and/or salaries (because the advisors were still largely controlled by their product-manufacturing employers). Moreover, even when banks were found to be in violation of FoFA rules, the penalties were so lax that misconduct continued to be remarkably profitable.

Notwithstanding the industry condemnations from the Hayne Commission, critics feel that the final report fell short and failed to include some key recommendations, including a once-discussed outright ban on asset-based (i.e., AUM) fees and a potential breakup of vertically integrated financial services firms (to force a separation between products and advice). Nonetheless, the findings did throw light on the need for further regulation and enforcement in Australia’s financial services industry, and industry consultant Rice Warner suggests that Australians are receiving better advice at a lower cost and are experiencing better financial outcomes after Australia’s fiduciary reforms.

Ultimately, the key point is that the ongoing evolution of the reformation of Australia’s financial advice industry could serve as a model in the U.S., as regulators struggle with implementing a fiduciary standard. Because, while the SEC’s Regulation Best Interest, which is slated to take effect at the end of June, 2020, is a step in the right direction, it’s possible that the rule will only lead to further confusion among consumers who can’t tell the difference between salespeople and advisors, leaving the proverbial door open for increased regulation in the years ahead. While Australia’s experience shows that lifting fiduciary standards actually can result in an increase in the levels of advice delivered to consumers, as eliminating low-quality advisors and reducing the level of conflicted advice leads to an increase in trust that ultimately creates more opportunity for financial advisors to survive and thrive.

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On June 5^th of 2019, the SEC issued its final version of Regulation Best Interest, which will require brokers and their broker-dealers to act in their clients’ best interests when making an investment recommendation, by meeting four core obligations: Disclosure (providing certain prescribed disclosure before or at the time of recommendation, about the recommendation and the relationship between the retail customer and the broker-dealer); Care (exercising reasonable diligence, care, and skill in making the recommendation); Conflicts of Interest (establishing, maintaining, and enforcing policies and procedures reasonably designed to address conflicts of interest); and Compliance (establishing, maintaining, and enforcing policies and procedures reasonably designed to achieve compliance with Regulation Best Interest).

In addition to Regulation Best Interest itself, the SEC is also implementing a newly required “Form CRS” (Customer/Client Relationship Summary) that both broker-dealers and RIAs will be obligated to provide their prospects, to further explain the nature of their services and relationship, their fees and costs, and their standard of conduct and conflicts of interest. Which will provide both new light on the business practices of broker-dealers – by requiring them to disclose upfront if they are using proprietary products, or receiving revenue-sharing or other behind-the-scenes payments – but also require new disclosures of RIAs (e.g., to state upfront their asset/account minimums, and to disclose how their own advisors are compensated and any advisor-level conflicts of interest that may be present as a result).

As a part of its Regulation Best Interest and Form CRS rulemaking, the SEC also issued updated interpretations of an RIA’s fiduciary obligations (a Duty of Care to provide best-interests advice, seek best execution, and provide ongoing monitoring when agreed upon, along with a Duty of Loyalty to act in the clients’ best interests) and the RIA’s requirement to avoid or at least disclose any attendant conflicts of interest, along with an updated (re-)interpretation of the solely incidental exemption for broker-dealers providing advice (that such advice will not trigger RIA status at a broker-dealer if the advice is offered “in connection with and [is] reasonably related to the brokerage services provided to an account.”

Ultimately, while Regulation Best Interest did not impose a full fiduciary duty on broker-dealers, it does materially lift the standard of conduct that applies to them, requiring greater disclosures from broker-dealers of their business practices, a requirement for broker-dealers to take active steps to mitigate the conflicts of interest their incentives create for brokers, and an outright ban on certain sales contests, quotas, and similar (and especially problematic) incentives.

For RIAs themselves, the new Regulation Best Interest rules have limited impact (as the new standards are specifically for broker-dealers), and, in practice, Form CRS will likely be easy to comply with (becoming a new Part 3 to Form ADV, drawing primarily from information already provided in the Part 2A brochure, and delivered alongside the RIA’s existing ADV requirements). Which means, in practice, the largest impact to RIAs may not be Regulation Best Interest itself, but simply the difficulty for RIAs to differentiate themselves in a world where broker-dealers can legitimately state that they, too, have a “best interests” standard when providing recommendations to their clients.

In the end, though, it seems that no rule related to the standards of conduct for broker-dealers and RIAs is “final” until it survives the seemingly inevitable court challenges that tend to emerge. Though given that the broker-dealer community itself has largely been supportive of Reg BI – if only because it wasn’t even worse and more burdensome for them – it remains to be seen who might even challenge the SEC’s Regulation Best Interest and supporting rules in the first place.

Without a challenge, the new rules of Regulation Best Interest and Form CRS themselves are set to take effect on June 30^th of 2020 (providing a 1-year transition period). Though the ripple effects are likely to continue for years to come.

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With the increasingly competitive environment to attract new clients – especially those with sizable portfolios available to manage – more and more advisory firms are beginning to spend money on their business development efforts. Either to engage in outbound marketing and advertising, to run “client appreciation events” that encourage existing clients to bring a friend to refer, developing relationships with centers of influence who can provide referrals… or just outright paying for referrals with upfront cash or ongoing revenue-sharing agreements.

The challenge, however, is that paying for referrals can potentially work too well – creating a conflict of interest for the referrer themselves, that may cause them to recommend the advisor regardless of how appropriate the fit is for the person being referred, or even the quality (or lack thereof) of the advisor themselves. Accordingly, the SEC instituted Rule 206(4)-3, which places relatively stringent regulatory requirements on solicitor relationships, from the disclosures that must be provided to potential clients, and the fact that solicitors themselves often must become "registered persons" as well.

In this guest post, compliance attorney Chris Stanley provides an in-depth look at the evolution of the SEC’s Solicitor Rule, the exact requirements for someone to qualify as a solicitor, what must be disclosed to prospective clients (and when, and how) when there is a solicitor arrangement, and the patchwork of state rules for determining when the solicitor themselves must also become registered as an Investment Adviser Representative (IAR).

The starting point is simply to understand that the Solicitor Rule may apply anytime someone is paid for a referral and applies even if the person being referred doesn’t actually become a client (i.e., is only ever a prospect). In order to be a referrer, the individual must not already have a problematic regulatory history (e.g., no felonies or misdemeanors involving investments), and the arrangement itself must be commemorated into a written agreement (though the exact requirements vary depending on whether the solicitor is only for a newsletter or other “impersonal” advisory service, is an “in-house” solicitor of the firm, or is a third-party solicitor). In the case of third-party solicitors, in particular, substantial disclosure requirements also apply, in addition to providing the RIA’s Form ADV Part 2, at the time the solicitation occurs.

In the meantime, most states will also require that the solicitor themselves become registered as an IAR, potentially necessitating a Series 65 exam, though notably, even for SEC-registered investment advisers, it’s ultimately a state determination of whether the solicitor must become registered. Which means even for the same RIA, solicitors in some states may have to be registered, while solicitors in other states do not. The rules also sometimes vary depending on the type of solicitor, and some other professionals – e.g., attorneys and accountants – may have additional requirements (or prohibitions) for soliciting based on their own professional standards of conduct as well. In addition, state-registered investment advisers must also look to their individual states for guidance, as the entire framework of the Solicitor Rule 206(4)-3 itself is a federal rule for SEC RIAs, and doesn’t actually apply to state RIAs that must follow their own state’s rules instead.

Of course, the caveat to this all is that revenue-sharing agreements for referrals can actually be a very “expensive” way to market for new clients in the first place. Nonetheless, for those who want to engage in the practice, it is permitted for RIAs to pay solicitors to refer clients… but there are a number of specific rules that apply and additional disclosures that must be provided. And with a recent SEC Risk Alert highlighting the SEC’s concern that RIAs are not fully complying with the disclosure requirements, in particular, it’s especially important for firms that are using (or are considering the use of) solicitors to comply with the rules.

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A core requirement of any bona fide profession is to have a professional Code of Ethics and Standards of Conduct that must be adhered to and a disciplinary enforcement process to remove professionals who don’t honor the standards. And while technically the CFP Board is not a sanctioned regulatory body but a 501(c)(3) public charity that owns a trademark for the CFP marks – and grants CFP certificants the right to use its private trademark in exchange for following its stipulated rules – the organization has been attempting to make financial planning a (more) recognized profession by similarly establishing a Code of Ethics, requiring CFP certificants to adhere to it, and enforcing against those who don’t follow its rules.

Accordingly, to the extent that last year, the CFP Board decided to lift its Code of Ethics and Standards of Conduct to formally adopt a fiduciary standard for all financial advice (or really, financial recommendations of any type) provided by CFP certificants, the CFP Board is now taking steps to refine its processes for enforcing those standards, with a series of proposed updates to its Disciplinary Rules and Procedures.

Yet alongside a number of more process-oriented refinements, the CFP Board has also put forth a rather controversial proposal: to allow CFP certificants to expunge their one-time public disciplinary sanctions (e.g., a public letter of admonition or a temporary suspension of the CFP marks) after 5 years. Despite the fact that recent studies of broker recidivism have found that those who have even “just” one misconduct disclosure on BrokerCheck are a whopping 5X more likely to engage in repeat misconduct, and a more recent study found that those who request expungement of their disciplinary records are even more likely to end out being repeat offenders anyway! While in the internet age when “nothing dies” once it's online, it’s not even clear if expungement of a public sanction from the CFP Board’s website really effectively vacates a CFP certificant’s record anyway… or just makes it harder for the public to find the information they need.

And so at a minimum, if the CFP Board is going to proceed with an expungement process, it should seriously consider more “aggravating factors” like additional private censures or the extent of client harm before automatically granting a time-based expungement, separate the process of expunging public sanctions from “just” bankruptcy-only disclosures, and apply a probationary period to expungement where any expunged sanctions are returned in the event of a future public sanction or private censure.

Ideally, though, the CFP Board should move away from its proposal for expungement, and instead simply provide the means for CFP certificants to add an explanation to their public disciplinary records (akin to what FINRA already provides), and perhaps better aid consumers by clarifying the nature of the infraction and whether or to what extent client harm actually occurred or not. And to the extent there is concern about an uptick in violation of the new fiduciary Standards of Conduct when they launch later this year, consider adopting a more lenient transition enforcement policy for the first year… rather than forgiving all 2020 infractions by 2025 regardless of their actual severity and client harm!

Fortunately, at this point, the proposed Disciplinary Rules and Procedures are just that – proposed – which means CFP certificants still have an opportunity to submit their own Public Comment letter expressing support or concern for the proposals to the CFP Board by January 29^th.

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In what is ostensibly an effort to increase consumer interest and access to investment opportunities, SEC Commissioner (and Chairman) Clayton has recently floated several ideas to ease the so-called “Accredited Investor” rules and limitations, which have come into sharp relief with a growing number of high-profile private companies like Uber and Airbnb that have chosen for various reasons not to make an Initial Public Offering that would make their stocks available to the average “Main Street” investor. Yet ultimately, it’s not clear whether the Accredited Investor rules really need to be changed, or if consumers (and the media) have distorted the perceived opportunities of private investing by focusing on the few biggest successes, and not the amount of risk and opacity that otherwise lurks in the world of unregistered securities (with ‘disasters’ only rarely occurring as publicly as Theranos did).

In this week’s #OfficeHours with @MichaelKitces, my Tuesday 1 PM EST broadcast via Periscope, we discuss the original objective and purpose of the “Accredited Investor” rules, where they might have possibly gone awry, and ways to re-align the Accredited Investor requirements so that they can accomplish their original goals.

At first blush, it’s not difficult to understand the desire to make capital markets even more egalitarian than they already are, by giving “mom-and-pop” the ability to get in on the ground floor with companies with tremendous growth potential like Airbnb and Uber (or Facebook and Twitter from several years ago). But, like every single other investment opportunity, greater potential reward always carries increased risk, and it’s the elevated risk that these Accredited Investor rules were intended to address in the first place.

Accordingly, the SEC’s “Accredited Investor” rule states that, in order to purchase unregistered (and less regulated) securities, an investor must have either $200,000 per year of earned income (or $300,000 with a spouse) for each of the prior two years and the current year, or have a net worth of over $1 million (excluding the value of their primary residence).

These requirements help ensure that investors who tie up their capital in unregistered securities should at least have the financial ability to absorb any losses should the venture go south, and ideally will have the financial sophistication to be able to evaluate whether the investment opportunity is really a good deal in the first place (or not).

However, $1 million in net worth isn’t the same hurdle it one was in 1982 (when the rules were first formed), and in today’s world that nest egg can’t even generate a median household income in retirement! Moreover, these investment opportunities – the vast majority of which will never actually pan out – are often marketed in a way that highlights the “special opportunities available only to the super-wealthy” aspect of the Accredited Investor limitations, while downplaying the fact that they are extremely risky and require extensive due diligence and that the real purpose of requiring “financial sophistication” is because it’s so hard to sniff out what’s actually “BS” in the first place (as even “sophisticated” Theranos investors discovered too late).

Accordingly, perhaps it’s actually time to increase (not lower) the thresholds for Accredited Investors to purchase unregistered securities – to ensure they’re limited to those who really can afford to take the risk and the potential losses – but at the same time, separate out the pretense that having a certain amount of money in the bank or via a paycheck automatically makes the investor “sophisticated” enough to evaluate potentially opaque private investment opportunities, and instead evaluate financial sophistication more directly (e.g., via a questionnaire or by requiring a third-party fiduciary advisor’s involvement).

Of course, the ultimate the problem with many companies building wealth in private markets and shunning public markets and isn’t about “accredited investor” rules at all, it’s about cumbersome regulations that have made going public overly restrictive and unappealing for many businesses in the first place. But to the extent that the Accredited Investor rules may be modified and recalibrated, it’s time to get real about what it really takes to evaluate the risks of private investments, beyond a presumption that how much an investor can afford to lose has any relationship to being “sophisticated” enough to understand the investment risks involved for the potential rewards that may (or may not) be available.

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Earlier this year, the SEC proposed its own long-awaited overhaul of the regulation of broker-dealers and investment advisers. At the time, the Department of Labor’s fiduciary rule was still the law of the land, and the pressure was on the SEC to “harmonize” – both the SEC’s regulation with the DoL’s version, and to close what has long been perceived as a concerning gap in the standards of conduct that apply to the “suitable” advice delivered by brokers versus the “fiduciary” advice of (registered) investment advisers.

And while the DoL fiduciary rule has since been struck down, consideration of the SEC’s advice rule is still, thus far, proceeding as planned, with a controversial overhaul of the standards of conduct for broker-dealers that would require them to act in the “best interests” of their customers when making a recommendation (but not as a fiduciary at all times in their relationship with clients) under the new Regulation Best Interest, along with a new Form CRS (Customer/Client Relationship Summary) to better describe the nature of the broker or investment adviser’s relationship with the consumer, and a potential limitation on the use of the “financial advisor” title by at least the brokers at standalone broker-dealers who have no RIA affiliation.

Yet, while the SEC’s efforts to lift the standards of advice being delivered by brokers is laudable, arguably its effort to do so by applying Regulation Best Interest to the “pay as you go” episodic or transaction advice of brokers inappropriately redefines the Investment Advisers Act of 1940 itself… which knowingly subjected broker-dealers to a lower standard than that of investment advisers specifically because brokers are not supposed to be in the business of advice (ongoing or episodic) in the first place, and were only permitted to provide advice to the extent that advice was/is “solely incidental” to the sale of brokerage products and services. In other words, the problem is not that broker-dealers are giving advice without being subject to a fiduciary standard under FINRA regulation; the problem is that broker-dealers giving such advice are required to register as investment advisers, and if they did, they would already subject them to the fiduciary standard that applies to registered investment advisers, rendering the entire Regulation Best Interest proposal moot anyway!

In this context, it is especially concerning that the SEC’s proposals appear to undermine the clear choice between sales versus advice that Congress intended when establishing the ’40 Act in the first place. After all, it’s hard to imagine that consumers will understand the sales-versus-advice distinction when the proposed Form CRS disclosure states that consumers may receive advice from a broker on a transactional or episodic basis or from an investment adviser on an ongoing basis (when the SEC already requires advisors providing transactional or episodic advice in the form of hourly and project planning fees to become investment advisers anyway), and it is unclear how any consumer could understand their choices given the Form CRS disclosure that broker-dealers “must act in your best interest and not place our interests ahead of yours” while investment advisors “are held to a fiduciary standard” which the SEC defines as the obligation to “act in the best interest of the client” as well!

Similarly, while the SEC’s advice rule proposes to reduce consumer confusion by limiting the use of the “financial advisor” term by standalone broker-dealers and their registered representatives, it continues to allow hybrid advisors to use the label, knowing full well that at least a portion of the advisor’s services will not be in his/her capacity as an advisor but as a salesperson. In other words, advisors are explicitly being granted permission to market their services as “advice” and implement that advice without being subject to the appropriate standard for advice, without any requirement to explain to the consumer when the advice relationship ended. For which the SEC suggests consumers might be “confused” by a requirement that the advisor clearly disclosure and use proper labels for the “hat” being worn… instead of recognizing that the confusion stems from the nature of the dual-hatted advice-and-also-sales relationship in the first place, for which clear use of titles at all times alleviates the confusion!

The bottom line, though, is simply to recognize that the real problem in the marketplace for financial advice today isn’t that broker-dealers are giving advice without being subject to the fiduciary duty that has always been applied to advice relationships of trust and confidence, or that the application of a fiduciary duty to the broker-dealer model could limit choice (and thus why a lower Regulation Best Interest standard is needed instead). The real problem is that Congress articulated in the Investment Advisers Act of 1940 that consumers should have a choice – between brokerage sales and investment advice – which the SEC’s Regulation Best Interest proposal not only fails to honor, but risks undermining to the detriment of advisor competition in the marketplace and the elimination of clear choices for consumers.

In any event, though, whether you agree or disagree, the time to do so is now, as the 90-day Public Comment period on the SEC’s proposals ends on August 7^th. So, if you haven’t submitted your own comments to the SEC about why Regulation Best Interest and Form CRS should, or shouldn’t, move forward… now is the time to make your voice heard!

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After years of debate over the Department of Labor’s fiduciary rule, and a nascent movement of states adopting their own fiduciary standards, the SEC has finally issued the first proposal of its long-awaited “Advice Rule” to reform the standard of conduct for broker-dealers, after being authorized under Section 913 of Dodd-Frank nearly 8 years ago to harmonize the regulation of brokers and investment advisers with a uniform standard.

As it turns out, though, the SEC’s proposal is not actually a uniform standard that would require brokers to be fiduciaries, but instead would only partially lift the conduct standards for broker-dealers, with a new “Regulation Best Interest” requirement that would obligate brokers to act in the best interests of their customers when making an investment recommendation… but only at the time they actually make the recommendation. And not at all if the broker is implementing recommendations that were crafted while wearing his/her investment adviser “hat” under a dual-registered B/D-RIA firm.

To help further clarify the nature of the relationship between customers and their brokers, and investment advisers and their clients, given that the SEC is not harmonizing fiduciary regulation for investment advisers and brokers, the regulator also proposed establishing a new Disclosure Form CRS – short for customer/client relationship summary – which would provide a “simple, plain language” 4-page explanation of the consumer’s relationship with the broker or adviser, albeit with wording that will likely be hotly debated in the coming year.

In addition, the SEC’s Advice Rule would formalize an RIA fiduciary’s expectations under the Duty of Care and the Duty of Loyalty, proposes several new potential requirements for RIAs where their standards are actually lower than broker-dealers (in particular, for investment adviser representatives to have a Continuing Education obligation, and for RIAs to potentially have basic Net Capital requirements to ensure they can make good to clients in the event the firm must be liquidated and unwound), and raises the question of whether it’s finally time for “title reform” by proposing that brokers would no longer be permitted to use any title with the word “advisor” or “adviser” (though dual-registered brokers would still be permitted to do so given the RIA “adviser” hat).

Ultimately, the good news of the SEC’s Advice Rule proposal is that it does aim to at least partially lift the standards for brokers, with an aim to further clarify the nature of the broker’s relationship with the customer (and how it differs from an advisor’s relationship with its clients). Yet at the same time, introducing a “Regulation Best Interest” may be so on-the-nose that consumers will actually just be more confused about the difference between a “Best Interests” standard for brokers and a “fiduciary” standard for RIAs… which the SEC defines as the RIA being obligated to act in the Best Interests of its clients, too. And by exempting dual-registered brokers from both the obligations of title reform, and Regulation Best Interest itself, it’s not entirely clear if the SEC is really aiming to clarify the differences between brokers and investment advisers… or to simply induce all broker-dealers to launch corporate RIAs as a safe harbor for their advice-related activities to avoid ever really facing greater scrutiny of the broker-dealer model and how their advice is implemented in the first place?

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Notwithstanding its recent regulatory focus in financial services, the concept of being a “fiduciary” long predates the Department of Labor’s proposed fiduciary rule. Not only because a fiduciary duty has applied to Registered Investment Advisers (RIAs) since/under the Investment Advisers Act of 1940, but also because the obligations of a fiduciary duty have existed under common law for centuries (and in other societies, for millenia) before. In fact, a fiduciary duty is what has always applied to special (advisory) relationships of trust and confidence. The primary issue is simply to determine when an advice relationship actually exists.

Accordingly, as the brokerage and annuity industries have increasingly trained their brokers and agents in more holistic advice, pursued advice-oriented education (e.g., CFP marks), and adjusted everything from their national advertising to their business cards to convey that their primary role is no longer just product sales but actual advice, it was arguably inevitable that regulators would eventually respond by applying a fiduciary duty to all those “advisor” brokers and annuity agents. As the Department of Labor ultimately did with its fiduciary rule.

Yet ironically, despite their ongoing transition into the business of financial advice, the financial product distribution industry and its representative associations – including FSI (independent broker-dealers), SIFMA (the securities industry), IRI (the annuity industry), and NAIFA (insurance and annuity agents) – have now prevailed in their 5^th Circuit Appeal against the DoL’s fiduciary rule, by successfully arguing that, notwithstanding their advertising and the titles on their business cards, their brokers and annuity agents are not advisors at all, but mere salespeople who do not have a relationship of trust and confidence with their clients, for which their (commission-based) compensation is not in any way payment for the delivery of advice but merely for effecting a product sale. Even as they continued to lament to the public and the media that the DoL’s fiduciary rule would restrict their ability to give advice to consumers (the very advice relationship they explicitly denied providing to clients in their own court briefs!).

Nonetheless, while it remains to be seen whether the 5^th Circuit Appeals decision will actually lead to vacating the rule, will lead the Department of Labor to try to walk back the rule, or whether the fact that last week the 10^th Circuit Court of Appeals upheld the DoL fiduciary rule – potentially setting the stage of a showdown in the Supreme Court – the fact that the financial product distribution industry of broker-dealers and insurance and annuity agents continues to adopt “financial advice” in their advertising to the public, it seems only a matter of time before some fiduciary rule takes hold, whether from the Department of Labor, the SEC, or a growing number of states that are taking fiduciary rulemaking into their own hands to fill the void.

Yet at the same time, the fact that the product distribution industry was able to prevail by convincing the court that their brokers and annuity agents are “just” salespeople and not advisors does emphasize the fact that there is a role for salespeople to play in the financial services industry, as distinct from actual advisors, and long recognized with separate regulation (i.e., the Investment Advisers Act vs broker-dealer regulation under FINRA). Which ultimately raises the question of whether the real issue is not whether the Department of Labor (or the SEC) are the best to issue a uniform fiduciary regulatory framework for all investment advisers and broker-dealers (and annuity agents), but whether a uniform fiduciary rule is the right solution in the first place… or whether the better path is simply to allow salespeople and advisors to continue to co-exist, but with proper regulation of titles and advertising to ensure that consumers have clear disclosures not just with respect to the products they may purchase, but the very nature of the sales-versus-advice relationship they’re engaging in the first place!

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With the now-more-than 80,000 financial planning professionals who have their CFP certification, one of the most common complaints I hear is from financial planners who receive a letter from the CFP Board stating that they need to update their website so that it doesn't simply state that they are a CFP, and instead, that they call themselves a "CFP certificant" or "CFP professional" instead. Which to many seems trivial, when the CFP Board could be spending their time (and enforcement resources!) going after "real" problems like CFP professionals who don't meet their fiduciary duty to clients, or just give bad financial planning advice in the first place. Additionally, it's not as if we see any State Boards of Accountancy sending letters to CPAs saying, “You should call yourself a CPA professional." But the reality is that there’s actually a really good reason why the CFP Board requires us to put that little trademark symbol after the CFP marks, and why they require us to say “CFP professional” or “CFP certificant” and not just “CFP” the way accountants can call themselves a CPA.

In this week’s #OfficeHours with @MichaelKitces, my Tuesday 1PM EST broadcast via Periscope, we examine why the fact that the CFP marks are a trademark and not a license means that the CFP Board must diligently defend the proper use of the CFP marks, including going after financial planners for the seemingly minor misuse of those marks by calling themselves a CFP!

As a starting point, it's important to understand that the reason we get to call ourselves CFP professionals or CFP certificants in the first place is that we sign an agreement with the CFP Board, where the CFP Board grants us the right to use their trademark. Because the CFP Board is the organization that actually owns the trademark on the CFP marks (along with the label “CERTIFIED FINANCIAL PLANNER”). Which means the CFP Board has the right to grant us a license to use their trademark... which they grant in exchange for meeting certain requirements, most significantly, that the financial planning professional meeting the "Four E's" of education, exam, experience, and ethics requirements, along with signing an agreement that we'll honor the CFP Board's Terms and Conditions, including those on the use of the marks. Which is distinct from how a license works (like a CPA), where an accountant's state actually grants a license to operate as a CPA.

The reason why this license-vs-trademark distinction matters is that since the CFP Board must rely on trademark law to control the CFP marks, they must abide by trademark law - which stipulates that trademarks should only be used as a descriptor of a noun, and not as a noun (which is why Nabsico calls their product "Oreo cookies", instead of "Oreos" and it's technically "Budweiser beer" and not just a "Budweiser"). And for the CFP Board to retain control of its trademark, and not be accused of abandoning it or allowing it to become generic (to the point that it can no longer be controlled as a trademark), they have to treat it like a proper trademark, which includes enforcing its proper use. Of course, organizations cannot do anything to stop consumers who start using trademarks as nouns, but since the CFP Board has a bona fide business relationship with us as CFP certificants, the CFP Board must take action to ensure the marks or used properly, or they risk losing the trademark altogether, which would allow anyone to use the CFP marks however they want.

This situation may not be perfect. Ideally, you’d actually need a license to become a CFP and a practicing financial planner, which would be a controlled title like CPA, and there would be a state or Federal regulator that ensures the only people who say they’re CFPs are actually CFPs, meet the requirements for CFPs, and are sanctioned and lose their license for failing to abide by the rules for CFPs. But that’s not the reality of financial planning today. We have licenses for selling insurance, selling investments, or managing a portfolio, but there's no license to be a financial planner or do financial planning. Instead, we voluntarily choose to obtain the CFP marks to distinguish our professionalism... by paying the CFP Board for the right to use their trademark (not by getting a CFP license!).

The bottom line, though, is just to recognize that the reason we can’t just call ourselves CFPs, and have to say we’re CFP professionals, is because the CFP is not a license. It’s a trademark. Owned by the CFP Board, which grants us the right to use the marks as long as we meet their standards. Which means, if you really value the CFP marks, and want to see them remain distinct, you want the CFP Board to be taking the necessary steps to protect them. Even if it’s a bit annoying when it comes at you directly!

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In recent years, the world has been awash in fiduciary regulatory for financial advisors, from the Future Of Financial Advice (FOFA) reforms in Australia, to the Retail Distribution Review (RDR) changes in the UK, and the Department of Labor's rule here in the US, all focused on requiring financial advisors to act in the best interests of their clients, and to reduce or eliminate conflicts of interest (especially around commission compensation). Yet while the DoL fiduciary rule has been repeatedly delayed in the US, in many other countries the fiduciary reforms have already taken effect... and now we're beginning to see the next stage of fiduciary legislation emerge.

In this week’s #OfficeHours with @MichaelKitces, my Tuesday 1PM EST broadcast via Periscope, we examine the new round of financial advisor regulation emerging in Australia, which focuses specifically on competency standards, and what it suggests about what may come next for advisor regulation in the US, and what financial advisors here should be thinking about in order to “future-proof” their own careers against potential future regulation!

Since adopting fiduciary requirements under the FOFA reforms (Future of Financial Advice) in the summer of 2012 and fully implementing those reforms in 2013 (in stark contrast to the ongoing debate in the US over DoL fiduciary which began around the same time but still isn't fully imiplemented!), Australia has served as a place that advisors can look to see what trends may be coming in the future of financial advisor regulation.

And in that context, Australia has followed up their fiduciary standards with a new round of standards of financial advisor competency, as the reality is that it’s not enough to just have a fiduciary duty for financial advisors to act in the best interests of their clients, but it’s also essential for the advisor to have the technical competency and training needed to know what’s in the best interests of the client in the first place! In essence, the new competency rules would require that all financial advisors have a college Bachelor’s degree, a full professional year of experience, pass a comprehensive exam to demonstrate their competency in core knowledge domains, and commit to ongoing continuing education and ethics requirements. Notably, this is the exact same framework as the CFP Board's “Four E’s” requirement that already exists in the US: Education, Exam, Experience, and Ethics.

However, just as not even 30% of advisors here in the US have the CFP marks, it is estimated that only about 25% of the financial advisors in Australia will be able to meet the new competency standards there. Accordingly, the regulators are providing a substantial transition period for Australian advisors.

This is important for advisors in the US, as it gives some hint about what may be the next shoe to drop in the regulation of financial advisors here, either in the form of literally requiring the CFP marks to practice – making CFP certification a minimum competency standard for all financial advisors rather than just a voluntary designation – or similar to Australia, some separate-but-similar competency requirement that’s administered directly by a government regulator or an independent entity the regulator creates.

On the plus side, the changes in Australia should not just improve competency to ensure there’s good advice, but also improve consumer trust in financial advisors in the first place. Because even if you show great warmth and caring for clients, if they don't believe that financial advisors are competent in the first place, it's difficult to build the necessary trust to have an effective advisor/client relationship. Which is why I think it’s such a big deal that Australia is now rolling out a financial advisor competency standard. Because lifting competency and education standards not only improves the quality of advice, but also trust in financial advisors.

But these changes also mean that, if you’re a financial advisor who wants to “future-proof” your own career, then you really should be reinvesting into advancing your education with programs like CFP certification. As Australia has shown, there will probably be some grace or transition period, so if you’re within 5-10 years of retirement already, you’ll likely be safe to just ride out the status quo. But if you’re younger than that, and still have a longer time horizon in the business, there’s increasingly a risk that once the first round of the fiduciary rule to act in clients’ best interests is done, the next round is going to be about competency standards... which means it may be a good idea to get started future-proofing your own career sooner rather than later! And if you are a CFP certificant today, and you use that to differentiate yourself from the 70% of advisors who don’t, recognize that it’s not going to be a sustainable differentiator for you once the regulators lift the competency standards for everyone... which again highlights the importance of developing your niche and specialization, so that you can stay one step ahead.

The bottom line, though, is just to recognize that much like Australia served as an indicator for what regulation was to come under DoL fiduciary (with a fiduciary rule that took effect 5+ years ahead of the US), Australia's new adoption of competency standards for financial advisors may be a good indication of where the regulatory focus will be next in a post-fiduciary world in the US. Which means, if you haven't invested in your education to meet such standards, you may want to start now. And even if you have, it's important to realize that merely fulfilling the "four E's" going forward will no longer be a differentiator!

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