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Does Raymond James Support the Fiduciary Standard … in Practice?
On May 30, 2012
Scott Curtis, president of Raymond James Financial Services, raises an interesting question when he states that while he supports the fiduciary “concept,” he cannot support the fiduciary standard because the standard “hasn’t been defined to the FA level.”
This is a curious remark as the principle-based fiduciary standard has been articulated through seventy years of court cases and SEC opinions – as a principle-based standard. Take the example, as Scott Curtis does, of the issue of conflicts.
What does the Investment Advisers Act require when a material conflict cannot be avoided and must be managed in the client’s best interest? Curtis notes the conflict must be disclosed to the client, but disclosure alone is insufficient. There is more. A material conflict puts a greater duty on the adviser. The adviser must also receive informed consent from the investor: i. e.: consent that is intelligent and independent. This consent means the investor understands the nature of the conflict and the actual or potential harm it might pose. Finally, the adviser should only proceed with the transaction if the adviser can mitigate or manage the conflict to be able to determine the transaction is in the best interest of the investor.
This duty is articulated in the SEC Arlene Hughes case, and two points deserve special mention. First, the adviser is responsible for ensuring the investors’ best interest is upheld. The SEC was explicit in noting that it is the investment adviser who is held accountable for assuring that his or her client understands the nature of the conflict and the risk or harm that it imposes. On this point there is no ambiguity.
Further, and this gets to the heart of the strength of the fiduciary standard, the SEC notes there can be no “hard or fast rule” for addressing material conflicts, because the duty adjusts according to the needs of the particular client. The greater the gap of knowledge of the client about the potential harms associated with the conflicted recommendation, the more stringent the fiduciary duty. This principle means, of course, a “one size fits all” disclosure regime is suspect on its face of fiduciary breach for the simple reason that all clients are not equal in their investing knowledge.
This presents a key question (or two) for RJFS. Does RJFS agree a new uniform standard should abide by the priniples set out in Hughes? Does RJFS agree its dually registered brokers, when operating through their RIA today, should abide by these principles?
In his remarks to a standing room crowd at RJFS’ national conference, RJFS Chair Dick Averitt is reported to have embraced the fiduciary standard because, in part, of its mandate to serve society at large, as attorneys and medical doctors are obliged to do. Further, Averitt related how early in his career he came to the realization he was more motivated by helping clients than he was by making money, and that changing how he approached investors consistent with this realization was instrumental to his future success. Lets hope as Averitt leaves the day-to-day operating decisions of RJFS, the Averitt Principle remains in place.
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“We do support the extension of a fiduciary standard to broker/dealer registered representatives who provide advice to retail investors.”
–Testimony by Lloyd C. Blankfein, Chairman and CEO, The Goldman Sachs Group, Inc. to the Financial Crisis Inquiry Commission, January 13, 2010
"I would like to suggest we imagine our industry in a new way... [and] do right by our clients by embracing our fiduciary responsibility."
–Sallie L. Krawcheck, President, Global Wealth & Investment Management, Bank of America / Merrill Lynch, April 22, 2010, Remarks to the Securities Industry and Financial Markets Association
“The law gives the [SEC] the authority to establish a new standard of care…’no less stringent than’ the Investment Advisers Act…to ensure that the new standard would not be a ‘watered down’ version of the investment advisors’ fiduciary standard.”
–Rep. Barney Frank, House Committee on Financial Services, May 31. 2011
The Institute for the Fiduciary Standard
Welcome to the Institute for the Fiduciary Standard!The Institute is a nonprofit formed in 2011 to benefit investors and society through its research, education and advocacy of the fiduciary standard's importance to investors, our capital markets and economy. Six key fiduciary duties embody the fundamental elements of an investment fiduciary’s responsibility.
These six key duties generally describe what it means to put investors’ best interests first. They also describe what most investors believe (according to numerous independent studies) all advisors are supposed to do. Unfortunately, this is not true. Only Registered Investment Advisers are required to meet the fiduciary standard, follow the six key duties and put the best interests of investors first… More
- * Serve the client’s best interest
- * Act in utmost good faith
- * Act prudently – with the care, skill and judgment of a professional
- * Avoid conflicts of interest
- * Disclose all material facts
- * Control investment expenses
Press ReleasesFeb. 3, 2012 - Volcker, Levitt and Gensler Lead Discussion at John C. Bogle Legacy Forum
- Bogle: A “Crying Need for the Fiduciary Standard”