Wednesday, February 16, 2011


What the SEC says and thinks it wants from a new and universal fiduciary standard for the retail investment community and what will most likely materialize once the lengthy and politically charged sausage-making process finally concludes figures to be a much different story.

That was the general consensus from a panel of academics, attorneys and regulators gathered at the New York Law School today to address the challenges and opportunities that will likely follow the SEC's recent mandate to create and enforce a uniform fiduciary standard for broker-dealers and financial advisors.

When the SEC issued its report last month at the behest of Congress and the Dodd-Frank Wall Street Reform Act, financial advisors, broker-dealers and their attorneys were quick to break out the magnifying glass to break down every detail and nuance of a report that, in the opinion of panelist Michael Koffler, a partner in charge of the financial services group at Sutherland Asbill & Brennan, reads like a boilerplate prospectus.

"We're no closer to an end game than we were before the report," Koffler said. "Maybe even further away," adding that the report itself features a disclaimer that the study reflects the views and opinions of the SEC staff and not the commissioners themselves.

Just last week, FINRA President and CEO Rick Ketchum said legislation on the fiduciary standard would almost certainly be delayed until the fall and it was highly unlikely exam replacements would occur until late 2012 at the earliest.

"A lot of folks thought after Dodd-Frank, there would be a clear path," Koffler said. "Maybe there would be some rule making in four to five months and this would take effect sometime in 2012. That's not going to happen."

What has happened is that constitutes from both sides of the broker-dealer and financial advisor camps are gearing up for what figures to be a protracted series of reports and baton passing between Congress and the SEC. In the interim-- in addition to bolstering their lobbying war chests and crystallizing their official positions on the matter-- they're spending considerable time and money to update their technology platforms, disclosures and internal policies in anticipation of future regulation whatever it may be.

If and when a final determination is made as to exactly how a fiduciary standard should be implemented and, more important, enforced, all the panelists agreed some changes to protect investors-- without hamstringing advisors and broker-dealers-- are long overdue.

"There's no doubt that we as an industry need to increase investor protections," said Tom Bradley, president of TDA International and the event's keynote speaker. "But the mantra here has to be better regulation and not necessarily more regulation."

Bradley concedes that going back as far as the dotcom implosion in the late 1990s and more recent scandals like the mortgage-backed securities and ponzi debacles, the financial services industry has deservedly earned a black eye in the view of most investors.

"We have a major PR problem," he said. "But the good news is that it can be fixed. We can make it better."

As the development of a fiduciary standard inches along through bureaucratic channels, the panelists said common sense and attention to detail and the spirit of what Dodd-Frank and the SEC are trying to accomplish should remain at the forefront of all regulatory decisions.

"I believe where this all went wrong was when you stock brokers and broker-dealers started to provide services that looked more and more like those of an RIA," Bradley said. "The problem is that most of that was done under rules that were supposed to govern brokers."

He added that because most brokerage firms are now registered and have an RIA umbrella, any regulator efforts-- whether by the SEC, an SRO like FINRA or individual states-- should perhaps focus more on forcing financial institutions of all types to develop a more pure and transparent sales model that draws a "clear and crisp line" so investors can easily digest and understand the motivations of both brokers and financial advisors.

The SEC clearly has a disclosure mandate now," said James Fanto, a panelist and professor at the Brooklyn Law School. "I also say this whole episode should be more than a regulator arbitrage. From one perspective, it's a turf war between advisors and brokers."

"What it should be about, really, is putting clients first," he added. "[Financial advisors and brokers] are there to give investors advice and not use them as a profit center."

Larry Barrett
February 10, 2011

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