
Sid Mittra
Ph.D., Economics
Emeritus Professor, OU, Michigan
I am pleased to share with you this invited article addressing the challenges we all face in seeking professional advice to deal with the seemingly directionless stock market. Harold Evensky is my teacher, my advisor and a long-time confidant. His credentials (placed at the bottom) are impeccable.

“I’M MAD AS HELL, AND I’M NOT GOING TO TAKE THIS ANYMORE”
I stole this from a famous line in the 1976 movie Network because it seems so appropriate as a title for my musings today.
Let me start my admitting I’m biased. The SEC has formally adopted its “Regulation Best Interest” standard or, as known in the financial world, Reg BI. It is the new standard of care for broker-dealers replacing the suitability standard that governs investment recommendations made by broker-dealers and their broker employees. The problem is, it sounds really good; it’s not.
It’s not a moral issue. There are good and bad brokers and good and bad investment advisors. It’s a legal issue. Business Standard vs Fiduciary Standard. In the excerpts below from the regulations, the bold items are mine. They are not highlighted in the regs.
Business is arm’s length (caveat emptor – “let the buyer beware”). The broker is a representative of and responsible to his or her firm.
A fiduciary is a representative of his or her client and held to the highest standard of care, loyalty and utmost good faith.
Reg BI, particularly the reference to “best interest”, confuses and obviates that distinction. Although historically “best interest” has been synonymous with “fiduciary” it is not under Reg BI. In fact, it is not defined. Although SEC Chairman Clayton said, “The core duty is the same. There are people who try to say there is daylight between the two. But not the way we think about it.” That begs the question, if there is no significant difference; why not just adopt the fiduciary standard of the ‘40 Act? The standard all Registered Investment Advisors have been held to for 80 years.
Examples of Non-Fiduciary
- Conflicts – removing the affirmative mitigation requirement at the firm level and adding new provisions that require written policies and procedures to identify and disclose material limitations and conflicts.
We do not believe that disclosing the fact that a broker-dealer does not offer the entire possible range of securities and investment strategies would convey useful information to a retail customer, and therefore we would not consider this fact, standing alone, to constitute a material limitation
Form CRS (the disclosure form that SEC-registered investment advisers and SEC-registered broker-dealers must provide retail investors. It is a brief customer or client relationship summary that provides information about the firm).
Firms are not expected to disclose every material conflict of interest, and should instead consider what would be most relevant for retail investors to know in deciding whether to select or retain the particular firm.
- Disclose, not elimination or avoidance.
The written policies and procedures must be reasonably designed to: Identify and at a minimum disclose, pursuant to the Disclosure Obligation, or eliminate all conflicts of interest associated with such recommendations
Thus, conflicts of interest may be resolved through disclosure alone. Significant research has demonstrated disclosure is not an adequate solution. Every read a prospectus?
- Broker expertise
As part of this process (material limitations on recommendations), you may consider:
Prescribing minimum knowledge requirements for associated persons who may recommend certain products; and…
We are not requiring the broker to be familiar with every product on the broker-dealers’ platform.
- Dual Hats
A dual-registrant could disclose that recommendations will be made in a broker-dealer capacity unless otherwise expressly stated at the time of the recommendation, and that any such statement will be made orally.
- Titles
Eliminates brokers’ use of the title “advisor” but leaves open terms like retirement consultant, financial consultant, chartered wealth advisor, etc.
- Incentives and Compensation practices are limited to “sale of specific securities within a limited period of time or create “high pressure” situations. I guess moderate or low is OK.
This elimination requirement would not prevent a broker-dealer from offering only proprietary products, placing material limitations on the menu of products, or incentivizing the sale of such products through its compensation practices, so long as the incentive is not based on the sale of specific securities or types of securities within a limited period of time.
- Maintains the fiction of Solely incidental to the sale; i.e., reasonably related to the broker’s primary business of effecting securities transactions.
We interpret the statutory language to mean that a broker-dealer’s provision of advice as to the value and characteristics of securities or as to the advisability of transacting in securities is consistent with the solely incidental prong if the advice is provided in connection with and is reasonably related to the broker-dealer’s primary business of effecting securities transactions. If a broker-dealer’s primary business is giving advice as to the value and characteristics of securities or the advisability of transacting in securities, or if the advisory services are not offered in connection with or are not reasonably related to the broker-dealer’s business of effecting securities transactions, the broker-dealer’s advisory services are not solely incidental to its business as a broker-dealer
The concern is not about protecting investors from massive fraud but from small, invidious unnecessary and unrecognized costs. A half percent a year in extra cost might make all the difference in the world to a retiree’s standard of living.
With thanks to the many commentators who I’ve “borrowed” items from, particularly my friend Professor Ron Rhoades, the responsibility for the thoughts, interpretations and conclusions are mine.
For investors the answer is protect yourself. Have your advisor sign the Committee for the Fiduciary Standard Mom-and-Pop “Fiduciary” Oath and it doesn’t even use the term “fiduciary”.
I believe in placing our clients’ best interests first. Therefore, we commit to the following five principles:
I will always put our clients’ best interests first.
I will act with prudence; that is, with the skill, care, diligence, and good judgment of a professional.
I will not mislead clients, and will provide conspicuous, full and fair disclosure of all-important facts.
I will avoid conflicts of interest.
I will fully disclose and fairly manage, in our clients’ favor, any unavoidable conflicts.
Advisor
http://www.thefiduciarystandard.org/wp-content/uploads/2015/02/fiduciaryoath_individual.pdf
Mr. Harold Evensky, CFP® is the Founder of Evensky & Katz/Foldes Financial and a retired Professor of Practice of the Texas Tech University Personal Financial Planning Department.. He is the past Chair of the International CFP® Council, the CFP® Board of Governors, Board of Examiners, and Board of Appeals, and the TIAA-CREF Institute Advisory Board. He has served on the National Board of the IAFP and the Charles Schwab Institutional Advisory Board and Council. He is the author of Wealth Management (McGraw Hill), co-author of The New Wealth Management, published in conjunction with the CFA Institute (Wiley & Sons), and co-editor of The Investment Think Tank, Theory, Strategy, and Practice for Advisers and Retirement Income Redesigned — Master Plans for Distribution (Bloomberg) and Hello Harold (Amazon eBook).
Feedback
If you’re enjoying what you’re reading, please consider recommending it the friends you like (and also to those you don’t like). They can sign up at sid.mittra1@gmail.com. If you want to share your thoughts on this or any other blog, or on my blogs in general, please email me at sid.mittra1@gmail.com.




