There are some fights you just want to stay out of. But there is one going on between the Financial Planning Association and the Securities and Exchange Commission that directly affects consumers who pay for financial advice.
On Tuesday, the Financial Planning Association filed a lawsuit challenging a proposed SEC rule that Elizabeth W. Jetton, president of the FPA, said "essentially allows broker-dealers to avoid the fiduciary and disclosure standards of the Investment Advisers Act of 1940 while acting as investment advisers and offering financial planning services."
I know that is a mouthful, but stay with me on this.
Essentially, the FPA is objecting to an SEC proposal that would clarify the exception that broker-dealers have from the definition of investment adviser.
Just so you know, the Advisers Act regulates the activities of investment advisers who get paid to give their views about investing in stocks and bonds. Firms that manage $25 million or more in investments must register with the SEC. Smaller firms and individual advisers must register with state securities agencies.
Investment advisers have a fiduciary responsibility to act in their clients' best interests. They are required to disclose any conflicts of interest and give advice that is suitable for their client. Brokers are also supposed to recommend suitable investments, but they aren't required to adhere to the higher fiduciary standard of acting in a client's best interest, the FPA argues.
As it stands now, brokers -- who only incidentally give financial advice to their customers -- don't have to comply with the Advisers Act.
"What we fail to understand is why the SEC would propose a rule that allows brokerage firms to misrepresent and actively market themselves to investors as trusted advisers -- instead of disclosing their true role as sales agents," said Jetton, a Certified Financial Planner who also holds a broker's license. "The critical problem with the rule proposal is that it allows stockbrokers to call themselves financial planners and financial consultants and to provide fee-based financial planning services under more lenient broker-dealer sales regulations."
The SEC declined to comment on the lawsuit. The SEC proposed the broker-dealer rule in 1999, but it hasn't taken action to adopt it.
In announcing the proposed rule change, the SEC said that in addition to paying traditional commissions for brokerage services, customers can now conduct securities transactions and receive related advice and other services by paying either a fixed fee or a fee based on a percentage of money they have on account with a broker-dealer.
The SEC said brokers weren't really changing what they have been doing, so the agency sought to clarify whether they are covered by the Advisers Act. Under the proposed rule, a broker-dealer providing investment advice to customers, regardless of how he or she is paid, would be excluded from the definition of investment adviser as long as he or she:
* Provides advice on a non-discretionary basis (in other words, no buying and selling of securities without contacting the client in advance).
* Makes sure the advice is "solely incidental to the brokerage services."
* Discloses to customers that their accounts are brokerage accounts.
What I don't like about this proposed rule is that "solely incidental" is so open to interpretation that it's useless.
Increasingly, individual investors are looking for investment advice. Some are turning to brokers. Who's to say that in a telephone call or e-mail or meeting, a broker won't step over that "incidental" advice line? And who will be there to inform the client that he is now squarely in advice territory?
On this issue, I agree with the FPA. The line between who is and isn't an investment adviser has definitely been blurred.
"Wall Street puts a lot of effort [into] convincing consumers that their brokers are in the business of giving advice, but they are not," said Barbara Roper, director of investor protection for the Consumer Federation of America, which supports the FPA's lawsuit.
Frankly, given all the scandals in the investment brokerage industry, I'm disappointed that the SEC isn't aggressively pushing to have anybody who, incidentally or not, gives advice about securities be covered by the Advisers Act.
Since the SEC hasn't yet adopted the rule about broker-dealers, let them know what you think.
"We've seen the SEC be quite responsive when they hear from lots of investors," Roper said.
Send your comments to the Securities and Exchange Commission, 450 Fifth Street NW, Washington, D.C. 20549. E-mail comments may be submitted to firstname.lastname@example.org. In either case, refer to File No. S7-25-99, Certain Broker-Dealers Deemed Not To Be Investment Advisers. Letters or e-mails concerning the court action should go to the following addresses: Office of Investor Education and Assistance, SEC, 450 Fifth Street NW, Washington, D.C. 20549, or email@example.com.
"There are problems with bias in financial planning, but at least if someone is an investment adviser, they have a fiduciary duty to place their client's interest ahead of their own," Roper said. "Has the fiduciary duty always been effectively enforced? No. But that's tomorrow's battle. First let's get a uniform set of rules for all the people portraying themselves as advisers."
Now that's some good advice.
Michelle Singletary discusses personal finance Tuesdays on NPR's "Day to Day" show and online at www.npr.org. Readers can write to her at The Washington Post, 1150 15th St. NW, Washington, D.C. 20071 or send e-mail to firstname.lastname@example.org. Comments and questions are welcome, but please note that they may be used in future columns, with the writer's name, unless a specific request to do otherwise is indicated.