Texas Tech University

Expert: Fiduciary Rule Equalizes System for Clients, Financial Advisers

Heidi Toth

April 7, 2016

With the announcement of a new rule Wednesday, U.S. financial advisers now will be required to put their clients’ best interests before their own profits.

With the announcement of a new rule Wednesday, U.S. financial advisers now will be required to put their clients' best interests before their own profits.

This law, known as the fiduciary rule or fiduciary standard, was announced by the U.S. Department of Labor (DOL) after a yearlong research period. That included more than 3,000 responses from members of the financial community, including Harold Evensky, a certified financial planner, professor in Texas Tech University's Department of Personal Financial Planning and chairman of Evensky & Katz/Foldes Financial Wealth Management in Miami. He has been in the financial planning industry for decades prior to his service on the Committee for the Fiduciary Standard.

Prior to this rule, brokers were not required to put their clients' financial interests first, which allowed these advisers to recommend that clients buy financial products which may have been expensive and not in the clients' best interest. According to an April 6 release from the White House, these conflicts of interest cost Americans $17 billion a year. The DOL estimated these changes will save affected investors tens of thousands of dollars in retirement savings.

Evensky is available to discuss these changes, which he sees as positive for the industry and its clients. During his decades-long career, Evensky has been chairman of the CFP Board of Governors and the International CFP Council and TIAA-CREF Institute Investment Advisory Board, in addition to writing several books and publications. In 2015 he was named to Investment Advisor's 35 for 35 list along with the likes of Ben Bernanke, Warren Buffett, and his wife, Deena Katz, also a PFP professor at Texas Tech who was one of the first financial advisers to have a fee-only business.

Harold Evensky
Harold Evensky


Harold Evensky, personal financial planning professor, (806) 392-2525 (cell) or harold@ek-ff.com

Talking points and quotes

  • With more than 1,000 pages there is a lot to absorb; however, I believe the DOL has done a Solomon-like job of streamlining, simplifying and clarifying the rule.”
  • “The actions of the Department of Labor will absolutely make the system more fair.”
  • The rule could have been much stronger. However, the federal government had to work within the political constraints of the day, as highlighted by Securities and Exchange Commissioner Michael Piwowar who opines that the rule “…seems to ignore the chorus of voices that questioned whether it will restrict middle-class families' and minority communities' access to professional financial advice by making retirement advice unaffordable,” or Georgia Sen. Johnny Isakson saying, “For families across the country, this rule is essentially the Obamacare for retirement planning, and I will do everything I can to overturn this rule.”
  • The argument that small investors will lose access to advice is balderdash, Evensky said. First, brokers don't provide advice. If they did, they would have to do so as investment advisers and would already be held to a fiduciary standard. Second, there is a large universe of fiduciary advisers who are ready, willing and able to provide substantive advice. Third, traditional commission-based platforms will quickly find a way to continue to operate under the new rule, as has already been seen.
  • Although few investors and few investment professionals understand the difference between rule-based regulation and principles-based regulation, the DOL does. As it noted, “Rather than create a highly prescriptive set of transaction-specific exemptions, the department instead is publishing exemptions that flexibly accommodate a wide range of current types of compensation practices, while minimizing the harmful impact of conflicts of interest on the quality of advice.”
  • Rather than a checklist of rules, firms are provided significant latitude subject to the principle that the firms and their advisers act as fiduciaries.
  • Under the current suitability standard, if there is a dispute, the ultimate responsibility for proving the claim rests on the client. Under a fiduciary standard the responsibility shifts to the adviser. This is a distinction not lost on compliance departments. As a consequence the enforcement of fiduciary standards will not be a result of detailed rules and micromanaging regulators but rather the actions of firm compliance departments and ultimately the results of arbitrations and court rulings.
  • Investors can avoid this by having their adviser sign the Committee for the Fiduciary Standard's fiduciary oath, which commits him or her to putting the client's best interests first; acting with prudence; not misleading the clients; avoiding conflicts of interest; and fully disclosing and fairly managing any unavoidable conflicts.
  • It's still a lumpy playing field. While IRAs may be subject to fiduciary standards, the old “suitability” standard with all of the potential conflicts of interest will still hold true for non-IRA accounts.

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