While the Department of Labor’s fiduciary ruling is not any sort of death knell (unless, perhaps, you’ve been peddling some seriously toxic investment products), you might think it was, given last week’s glut of headlines in the financial press. I’ve seen all five of Kübler-Ross’ famed stages of grief on exhibit: denial, anger, bargaining, depression and, ultimately, acceptance.
I have experienced these myself. For some time, I doubted that the DOL would ever achieve a ruling. When they actually did, I was angered by some of the last-minute holes that were blown into what could otherwise have been a more solid fiduciary stronghold. While I am in no position to bargain with the DOL, I debated with myself, mulling over shifting moods on whether the ruling was a good or bad thing for investors.
In the end, I have accepted that we should think of the ruling as a modest victory for investors and that, by and large, you should communicate it as such to your community.
This is also how I positioned the client letter I provided in my Content-Sharing Library for advisors to use for this purpose.
That’s not to say you must or even should ignore the rule’s shortcomings, which seem dangerous to evidence-based investing in a couple of important ways:
Best Interest, Really?
First and most importantly, I worry that some of the capitulations (or “improvements” to paraphrase Secretary of Labor Thomas Perez) mean that investors will continue to be exposed to inferior advice and sub-par products, at least for the foreseeable future. Despite the DOL’s best intentions, I fear implementation may fall short of truly being in investors’ highest financial interests.
To borrow Perez’ own analogy, if a financial Ford dealer is permitted to remain mum about a better-made Chevy investment, how could that non-act of silence be positioned as an act of best-interest advice? The answer is, it cannot. And it seems to me that a universe still containing variable annuities, revenue sharing and similar products and practices somehow defies the laws of fiduciary physics.
Whoops, I’m reverting back to that anger stage. Suffice it to say that some of those last-minute “improvements” have left some pretty wide holes for looping through.
The other reason I am peeved by the DOL’s ruling is that it has just become officially harder for truly fiduciary, evidence-based advisors like you to differentiate yourself from Wall Street’s business-as-usual crowd. It just became easier for those usual crowds to claim to be fiduciary, allegedly just like you, and whether or not they even want to be.
If you’ve been serving in a fully fiduciary capacity all along, I hope it’s because you would be doing so anyway; it’s what your clients deserve and no less. But at least up until now, you’ve been able to cite your focus on fiduciary as a quality that investors would be hard-put to find elsewhere.
Now, as if “fiduciary” weren’t already hard enough to describe, the term just got muddier, sullied by a laundry list of exceptions to the rule that we’re likely to see buried in ironically named Best-Interest Contracts (BICs).
What’s an Evidence-Based Advisor To Do (and Say)?
So how should you communicate the news to clients and prospects … or should you?
I’ve said it before, and I’ll say it again: There’s never a bad time to reach out to your clients or other audiences. As long as your advice is good and true, people will enjoy hearing from you. So, as usual, it’s not a question of “should you,” but rather how to make the reach-out mean something to you and your audience.
If you’ve been reading the coverage, you may find yourself in alliance with a range of possible perspectives:
- Yahoo, sliced bread has just been surpassed by this major fiduciary milestone. (DOL’s press release)
- Yes, there’s room for improvement … but it’s a start. (The New York Times and Advisor Perspectives)
- Head for the hills. The dark side has won. (RIABiz)
To craft your own communications, I recommend you present the DOL ruling for what it is, being fair to both its beauty marks and its flaws. So what if the term “fiduciary” may have lost some of its purity. Too bad if some financial bad eggs continue to stink up our profession. (As John Bogle famously observed in the aftermath of the financial crisis, “There are few regulations that smart, motivated targets cannot evade.”)
There’s not much you can do about this.
Instead, just as you advise your clients to do, I recommend you focus your messages on what you can control about the news. Remind your clients and inform your prospects that before and after the DOL rule, you have been and you intend to keep helping people make the most of their personal wealth by steadfastly acting in a full fiduciary capacity at all times. Their best interests have been and remain your highest priority.
Regardless of any loopholes others may indulge in and regardless of any terminology that may no longer carry the weight it once did, that truth has not changed one bit, nor will it. Make sure your audiences know that.