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On the Department of Labor “Fiduciary Rule”

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Rick Kahler MS CFP

By Rick Kahler MSFS CFP®

Both fee-only financial planning firms and companies that sell financial products are beginning to see some unintended consequences from the recent Department of Labor fiduciary rule.

The rule requires that all financial advisors who deal with an investor’s retirement accounts, including those who sell products, be held to a fiduciary standard. In the past, only RIA’s who are regulated by the SEC were held to such a standard.

The DoL intended the rule to discourage financial salespeople from placing high fee and commission products in retirement accounts. For fee-only advisers, one unintended consequence is an increase in documentation and paperwork, which increases the cost of doing business.

Another unintended consequence that could actually end up hurting consumers may be on the issue of churning.

Churning

Churning describes a broker excessively and needlessly making a lot of trades in a client’s account to generate extra commissions. FINRA, the agency that oversees the sale of financial products, has long discouraged churning, though often the practice only comes to light when a consumer files a complaint.

Still, regulators’ success in discouraging churning has given rise to fee-based brokerage and wrap accounts. These accounts do not compensate brokers on the number and frequency of transactions, but on an ongoing management or advisory fee. It can be a flat fee or one that is determined by a percentage of the assets in the account. This mode of compensation takes away a broker’s incentive to churn accounts. That has to be a good thing, right? Well, not necessarily, if you are a regulator.

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dol

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Now, according to financial planner and writer Michael Kitces, the regulators are concerned they have been “too successful” in motivating brokers to charge management fees. Kitces notes the new DoL fiduciary rule will continue to spur a massive shift towards various forms of fee-based brokerage and advisory accounts, giving rise to an emerging new problem: reverse churning.

Reverse Churning

He says reverse churning “is where an advisor charges an ongoing investment management fee … but fails to provide any substantive ongoing investment services.” The broker places a consumer in an investment, collects the annual fee, and never touches the account again. Regulators are worried that brokers have gone from too much activity (churning) to not enough (reverse churning).

With the rise in popularity of passive investing, there is growing interest in the use of ETFs, index funds, and other passive investment vehicles. Passive investing is often framed as a “leave it and forget it” strategy that needs little attention. A lot of research validates that a passive investment strategy is usually superior to an active strategy with more buying and selling of securities.

Kitces notes that while the regulatory concern about reverse churning is appropriate, it “raises troubling concerns when paired with the growing popularity of using index funds, ETFs, and passive investment approaches. How is an advisor supposed to justify an ongoing advisory fee when the right thing for the client to do might really be to do nothing? And what if the bulk of the advisor’s AUM fee is actually for other non-investment (i.e., financial planning) services, paired together with an otherwise passive investment portfolio?”

Assessment

Regulators will probably need to address the difference between reverse churning and implementing a prudent passive investment strategy. That won’t happen before there is a lot of confusion that demands clarification. In the meanwhile, fee-only advisors who embrace a passive investment strategy will have to add another layer of busywork by documenting what they actively do for clients on an ongoing basis. Clearly, this will be easier for fiduciary advisors who also provide financial planning than for those who only provide investment advice. 

Conclusion

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One Response

  1. BICE is not NICE – IMHO

    A few words on the Best Interest Contract Exemption rule from my colleague Mike Kitces.

    https://www.kitces.com/blog/best-interests-contract-exemption-bice-and-dol-fiduciary-bic-requirements/

    Dr. David Marcinko MBA

    Like

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