The lead story on the advisor reregulation front these days is that our friends at FINRA continue to position themselves as the increasingly obvious choice to become the regulator of investment advisors—to the point of becoming overkill. Speaking at that organization’s annual conference at the end of May, FINRA chairman and CEO Richard Ketchum called for making his industry’s disclosures more understandable to consumers: “We need to get away from today’s environment in which account statements contain too much legalistic information, leaving them downright turgid, and causing investors to simply ignore them. This is a fundamentally flawed approach to disclosure.”
Ketchum went on to say that his BD constituents should be asking: “How do we interact in an effective way with investors? How do we foster knowledge and understanding among investors? And how do we deliver that message, both with respect to existing technology tools and with respect to how your financial advisors go through the message?” He also mentioned that they are enhancing their examination teams to be “more focused on those areas that present a real risk to investors.” And, of course, he reiterated FINRA’s embracing of a “uniform fiduciary standard,” carefully noting the key elements of such a client-centered relationship are “to avoid conflicts of interest where possible, fully disclose them where not, and take actions—and be able to justify those actions—as being in the best interests of the customers.”
Now, a skeptical mind might ask whether Ketchum has only now noticed that disclosures are verbally impenetrable to English-speaking clients, that BDs have not been particularly concerned with investor education, or that the “real risk” to investors is frequently overlooked. It sounds as if he’s critiquing a regulator other than the one he heads. And if FINRA is so gung-ho about a uniform fiduciary standard, why did it push the SEC to enact the now struck-down Merrill Lynch Rule which exempted brokers from such a fiduciary standard?
No, Ketchum and FINRA have had their epiphany on the road to Damascus just in time to become the regulator of investment advice as well as brokerage activities. But if they succeed, it will not be a sudden victory. FINRA and its predecessor, the NASD, have been angling to regulate independent investment advisors at least since I started covering financial planners back in 1984.
This time, however, they may succeed, and the consequences for independent advice could be disastrous. Admittedly, I haven’t been excited by the prospect that the best hope for advice to retain its independence could be an SRO for RIAs launched by law students at the University of Mississippi under the tutelage of their professor, Mercer Bullard. Yet, after hearing Professor Bullard speak at the fi360 Conference in San Antonio in May, I can see now that there may be some encouraging method to his madness: Given the SEC’s current funding woes, an alternative to FINRA may be exactly what independent advisors need to remain independent.
For the past three decades, the securities industry and its SRO have been right about two things: The first is that independent advice has indeed posed a serious threat to the traditional brokerage model. In its short history, it has forced the transition to fees, to assets under management, to comprehensive advice, and now to a fiduciary standard. Yet, despite these dramatic “me too” changes by BDs, the defection rate of brokers into the independent ranks is higher than ever.