SEC Chairwoman Mary Jo White recently announced her support of a uniform fiduciary standard for broker-dealers and investment advisers, ending any remaining speculation as to her views on the subject. The announcement kicked of a whirlwind of speculation in the industry – What would the new standard look like? When would we see it? Will the initiative thrive or die when we get a new president in 2017?
We will have to wait months, perhaps years, for the answers to these questions. FINRA, apparently, has no interest in waiting. In its annual Regulatory and Examination Priorities Letter, FINRA clearly stated its priorities for 2015, and the very first challenge it finds itself facing in 2015: getting broker-dealers to put customer interests first.
This sentence, at first blush, seems somewhat benign. Of course, a registered person should honor her clients’ interests. So, what makes this priority so concerning? The answer, not surprisingly, lies in the details.
First, a bit of background on the differing obligations imposed on investment advisers and brokers. Under the current law, investment advisers are already fiduciaries. This means they are legally required, in making investment decisions, to put their clients’ interests first – elevating them above the advisers’ own interests (and the interests of their firm). Brokers, on the other hand, owe a different duty, namely, to make sure that when they make recommendations to buy, sell or hold a security, those recommendations are “suitable.” This standard requires that the investment recommendation comply with the client’s stated financial profile and investment objectives, but does not require the broker to put aside her own interests in the process.
With this background in mind, and understanding the difference between the obligations placed on investment advisers and brokers, respectively, consider the following 2015 FINRA Initiative:
Putting customer interests first: A central failing FINRA has observed is firms not putting customers’ interests first… FINRA believes that firms best serve their customers – and reduce their regulatory risk – by putting customers’ interests first.
(FINRA’s full letter can be found here).
So, despite the fact that the government is miles away from enacting a uniform fiduciary standard, FINRA has made imposing and enforcing that standard its number one priority for 2015. Firms should expect exams and examiners to pay special attention to the areas where this is most likely to arise, which is anywhere there could be a conflict of interest between the broker and her client, for example, product choices, fees and compensation (where the product may be suitable for the customer, but carry some monetary incentive for the adviser).