HOW THE “FIDUCIARY CONUNDRUM” DEFIES PHYSICS?

And … How We Can Fix It

By Dr. David Edward Marcinko MBA MEd CMP®

www.CertifiedMedicalPlanner.org

The Rules As I Understand Them

Securities industry Regulations and Regulators recognize that (registered) investment advisors give advice, while stock brokers sell brokerage products. Thus, the Series 65 license is required to become a financial advisor, while Series 7 licensed stock-brokers are not (and cannot) be fiduciary advisors.

So, advice is subject to a fiduciary duty, while product sales (brokerage) activity is not. The ratio of fiduciary advice to brokerage sales is about 1:99. So, what does that tell you?

A Contentious and Complicated Issue

This issue is so contentious and complicated today that lawyers are needed to define each and every term, engagement, transaction, brokerage or advisory contract, etc. It is far too amazingly contorted and complicated for most; including me; and we have even discussed the industry machinations and political double-talk on this ME-P previously; from some vary sharp industry experts, too.

The Fiduciary Conundrum

The “work-around” for these rules is industry “dual-registration”. Simply put, just get licensed to do both; as I did. Charge a commission when selling stuff and charge a fee for advice. And ideally, do both at the same time; while getting paid for both sides.

As a naïve luddite, I learned this little truism in financial planning school decades ago, and as a doctor and fiduciary for my patients at all times, almost vomited.

Of course, there were more sophisticated students in our classes who regurgitated the standard industry opinion: “We’ll give the client a financial plan for free IF we can sell commissioned products.”

Ideally this meant a fat and fully commissioned wrap account, whole-life insurance policy, LTCI policy; etc. Or, sell products and collect fat ongoing, and often unrecognizable AUM fees [fee-only], too!

From the stock broker-advisor’s POV, it was “Heads I win – tails you loose” for the client. Now, you know why I am a former or reformed certified financial planner.

The Physics Split

Know that as a pre-medical college student years earlier, I leaned about the Werner Heisenberg Uncertainty Principle, in physics class.

Of course,  true Advice – is not Sales …  and Sales is not Advice. Both should never be; simultaneously. So, let’s ditch dual registration and decide which to pursue … and then proceed accordingly. Both sales and advice have risks and benefits to client and producer; both have advantages and disadvantages to both; as well.

WHY? Just like the Werner Heisenberg Uncertainty Principle; it shouldn’t [shan’t] be both; at once.

NOTE: In quantum mechanics, the Heisenberg uncertainty principle is any of a variety of mathematical inequalities asserting a fundamental limit to the precision with which certain pairs of physical properties of a particle, known as complementary variables, such as position x and momentum p, can be known simultaneously.

So, in physics, I can tell you where you are -OR- how fast you are going; but not both. Thus, if it is product sales; it is not advice.

Today, since “dual registration” is still allowed, my suggestion to clients is to seek a fiduciary in all matters 24/7/354; get it in writing, and try  to avoid arbitration and “best interest” or BICE clauses! Run from [fee-based and fee-only] AUM fees, too.

PS: I am not against Series #7 representatives and product sales. Salesmen/women often provide a valuable service and should be appropriately compensated. I only object when fees, costs, charges and commissions are duplicative, excessive and/or not fully disclosed to the client. Since excessive is an arbitrary term; full disclosure is the key ingredient.

Assessment

So – How am I wrong, mistaken and/or what did I miss? Do tell! Should We – Can We – Ditch Dual Registration [DDR]?

Oh! In the future, I also hope that State fiduciary standards will potentially cover both non-ERISA and ERISA situations, and employee plan participants will have access to full discovery rights, the one thing the industry fears most.

But, that’s a discussion for another day and time.

Conclusion

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Understanding Financial Broker and Advisor Licenses

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Series #65 VS Series #7

By Michael Zhuang

When I am approached by a prospective client, the question they always ask without fail is “Are you properly licensed?” This is actually the wrong question to ask. The right question should be, “Which license do you have?”

The Types of Licenses

Generally, there are two types of licenses for people who call themselves a “financial advisor.” People who passed the series #65 test and people who passed the series #7 test. The nature of these two licenses is as far apart as heaven and earth.

The Securities License

Series #7 is a securities license. People who have passed this test can legally be a stock-broker. They are actually prohibited by law to give financial advice, except incidental to the financial products they are selling.

A financial advisor with a series #7 license can receive third party payments like kickbacks, commissions etc in conjunction with the products they sell you. They are not required to put your interest first as they are not your fiduciary. Legally they abide by a much lenient “suitability standard.” That is, if they think the product is suitable for you, irrespective of the cost, they are legally off the hook.

All of Morgan Stanley, Merrill Lynch and other Wall Street firms’ financial advisors are required to pass the series 7# license.

The Advisor License

Series #65 is an advisor license. People who have passed this test are legally called registered investment advisors or RIA representative. An RIA representative’s compensation is in the form of fees paid directly by the client. He or She is prohibited to receive any third party payment unless disclosed to and approved by the client first.

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Wall Street

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Assessment

When searching for a financial advisor, it’s crucial to find out what licensure he or she has. Do not use a stock-broker as your financial advisor – unless you’re in the habit of letting you friendly neighborhood used car salesman hand pick your vehicle purchases.

More:

Conclusion

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A Recent E-mail that I Received

By Dr. David Edward Marcinko MBA, CMP™

www.CertifiedMedicalPlanner.com

[Editor-in-Chief]

As a former certified financial planner for almost 15 years, I was surprised to recently receive the following unedited e-mail correspondence.

Dear Marcinko,

If you are clever, have a way with people, or are a born salesperson, then becoming financial advisor could be your ticket to paradise.

Maybe not exactly paradise, but you could definitely have a ticket to a rewarding career. If you’re thinking about starting out as a new financial advisor – you may already be half the way there.

Why?

Because it’s an occupation where your life challenges will give you the understanding and empathy needed to work with your clients. Have you ever been in the position where you had to figure out a budget for your children’s education? Or manage an over extended credit card? These life situations will aid an individual on the path to become a financial consultant.

Requirements to Be a Financial Advisor

Even though a formal education is not a necessity to become financial adviser, it helps if you’ve taken certain courses.

What degree do you need to become a financial advisor? A bachelor’s degree in Finance, Economics, Accounting, Commerce, Business or Marketing would be a good start. A degree won’t assure you of a startling career but it may help get your foot in the door.

Rumor has it that a degree in psychology is also an asset as financial advising is as much about counseling as it is about advising. There are a plethora of people with all sorts of emotional entanglements around their financial lives.

Licenses

So, what licenses do you need to be a financial advisor? Some companies will assist a newbie in the financial advisory business and place them into a special program that will help them to obtain the required regulatory licenses such as a Series 66, this license permits them to vend annuities and mutual funds. It’s also possible to manage your own training. You can take part-time courses in order to qualify for the CFP (Certified Financial Planner) exam.

There are roughly over 286 universities and colleges that will assist you in preparing for the CFP exam. How long does it take to become a financial advisor? In order to qualify for the exam you will also need three years full-time working experience with a financial planning establishment.

Statistics state that over 40% regularly fail this all important exam. Its worth the time and effort as with this certification you are deemed as a certified financial planner and demand a higher salary.

Assessment

Hot tip: Stay away from insurance companies for financial employment. They’ll insist that you sign everyone including the dog and your grandmother. Then get rid of you if you don’t procure sufficient business. Banks are better they will bring in the clients for you.

Conclusion

And so, your thoughts and comments on this ME-P are appreciated. Are financial advisors true professionals; or a truely professional sales force?

Please review our top-left column, and top-right sidebar materials, links, URLs and related websites, too. Then, subscribe to the ME-P. It is fast, free and secure. Are financial advisors true professionals, or a professional sales force?

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I Jealously “Shake my Fist” at Somnath Basu PhD

On CFP® Mis [Trust] – One Doctor’s Painful Personal Experience

[“So Sorry to Say it … but I Told You So”]

By: Dr David Edward Marcinko; FACFAS, MBA, CMP™

[Publisher-in-Chief]dem21

According to Somnath Basu, writing on April 6, 2009 in Financial Advisor a trade magazine, the painful truth is that many financial practitioners are merely sales people masquerading, as financial planners [FPs] and/or financial advisors [FAs] in an industry whose ethical practices have a shameful track record. Well, I agree, and completely. This includes some who hold the Certified Financial Planner® designation, as well as the more than 98 other lesser related organizations, logo marks and credentialing agencies [none of which demand ERISA-like fiduciary responsibility]. For more on this topic, the ME-P went right to the source last month, in an exclusive interview with Ben Aiken; AIF® of Fi360.com  

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The CFP® Credential – What Credential?

Basu further writes that stockbrokers and insurance agents who earn commissions from buying and selling stocks, insurance and other financial products realize that a Certified Financial Planner® credential will help grow the volume of their business or branch them into other related and lucrative products and services. After all, there are more than 55,000 of these “credentialed” folks. And, this marketing designation seems to have won the cultural wars in the hearts and minds of an unsuspecting – i.e., duped public; probably because of sheer numbers. Didn’t a CFP Board CEO state that its’ primary goal was growth, a few years ago? Can you say “masses of asses”, as the oft quoted Bill Gates of Microsoft used to say when only 2,000 micro-softies defeated 400,000 IBMers during the PC operating system wars of the early 1980’s. Quantity, and marketing money, can trump quality in the public-relations business; ya’ know … if you repeat the lie often enough … yada … yada … yada! Yet, as the so-called leading industry designation, the CFP® entry-barrier standard is woefully low. Moreover, the SEC’s [FINRA] Series #7 general securities licensure sales examination is not worth much more than a weekend’s study attention, even to the uninitiated.

insurance-book2

Easy In – Worth Less Out

In our experience, we agree with Basu and others who suggest that scores of lightly educated, and sometimes wholly in-articulate and impatient individuals are zipping through the CFP® Board of Standards approved curriculum in three to six months of online, on-ground, or “self-study”. But, that some can do so without a bachelor’s degree when they join wire-houses and financial institutions, which cannot be trusted to adequately train them, is an abomination. And, even more sadly, some of these CFP™ mark-holders, and other folks, believe they have actually received an “education” from same. Of course, their writing skills are often non-existent and I have cringed when told that, in their opinion, advertiser-driven trade magazines constitute “peer-reviewed” and academic publications. Incidentally, have you noticed how thin these trade-rags are getting lately? Much like the print newspaper industry, are they becoming dinosaurs? One agent even told me, point-blank, that his CLU designation was the equivalent of an “academic PhD in insurance.” This was at an industry seminar, where he thought I was a lay insurance prospect.

THINK: No critical thinking skills.

biz-book4

Education

There is another sentiment that may be applied in many of these cases; “hubris.” I mean, these CFP® people … just don’t know – how much they don’t know.”  The very real difference between training versus education is unknown to many wire-houses and FAs, isn’t it? And, please don’t get me started on the differences in pedagogy, heutagogy and androgogy. Moreover, it’s sad when we see truly educated youngsters become goaded by wire-houses into thinking that these practices are de-rigor for the industry. One such applicant to our Certified Medical Planner™ program, for example, had both an undergraduate degree in finance and a graduate degree in economics from the prestigious Johns Hopkins University – in my home town of Baltimore, MD [name available upon request]. He was told, in his Smith Barney wire-house training program, to eschew CMP™ accountability and RIA fiduciary responsibility, when working with potential physician and lay clients; but to get his CFP® designation to gather more clients. To mimic my now 12 year-old daughter; it seems that: SEC Suitability Rules – and – Fiduciary Accountability Drools. And, to quote Hollywood’s “Mr. T”; I pity the fools, er-a, I mean clients. But, T was an actor, and this is serious business.

cmp-logo1

Of CEU Credits and Ethics

Beside trade-marks and logos, we are all aware that continuing education, and a code of ethics, is another important marketing and advertising component of state insurance agents and CFP licensees. It’s that old “be” – or “pretend to be” – a trusted advisor clap-trap. Well, I say horse-feathers for two reasons. First, both my insurance and CFP® Continuing Educational Unit [CEU] requirements were completed by my daughter [while age 7-10], by filling in the sequentially identical and bubble-coded, multiple-choice, answer-blanks each year. Second, this included the mandatory “ethics” portions of each test. When I complained to my CEU vendor, and state insurance department, I was told to “enjoy-the-break.”  My daughter even got fatigued after the third of fourth time she took the “home-based tests” for me.  After I opened my big mouth, the exact order of questions was changed to increase acuity, but remained essentially the same, nevertheless. My daughter got bored, and quit taking the tests for me, shortly thereafter. She always “passed.”dhimc-book3

Thus, like Basu, I also find that far too many financial advisors are unwilling to devote the time necessary to achieve a sound education that will help attain their goals, and would rather sell variable or whole life products than simple term life, even when the suitability argument overwhelmingly suggests so, for a higher payday. We not only have met sale folks without undergraduate degrees, but also too many of those with only a HS diploma, or GED. Perhaps this is why a popular business truism suggests that the quickest way for the uneducated/under educated class to make big bucks, is in sales. Just note the many classified ads for financial advisors placed in the newspaper job-section, under the heading “sales.” Or, in more youthful cultural terms, “fake it – until you make it.”

Of the iMBA, Inc Experience

According to Executive Director Ann Miller RN MHA, and my experience at the Institute of Medical Business Advisors, Inc:

“Far too many financial advisors who contact us about matriculation in our online Certified Medical Planner™ program – in health economics and management for medical professionals – don’t even know what a Curriculum Vitae [CV] is? Instead, they send in Million Dollar Roundtable awards, Million Dollar Producer awards, or similar sales accomplishments as resume’ boosters. It is also not unusual for them to list some sort of college participation on their resumes, and websites, but no school affiliation or dates of graduation, etc. And, they become furious to learn that we require a college degree for our fiduciary focused CMP™ program, and not from an online institution, either. The onslaught of follow-up nasty phone-calls; faxes and emails are laughable [frightening] too.”  

www.MedicalBusinessAdvisors.com

Assessment

More often than not, it is the financial institutions that FAs and CFP™ certificants’ work for that reward sales behavior with higher commissions, rather than salaries; which encourage such behavior and create the vicious cycles that are now the norm.

THINK: ML, AIG, Citi, WAMU, Wachovia, Hartford, Prudential, etc.

Note: Original author of Restoring Trust in the CFP Mark, Somnath Basu PhD, is program director of the California Institute of Finance in the School of Business at California Lutheran University where he’s also a professor of finance. He can be reached at (805) 493 3980 or basu@callutheran.edu. We have asked him to respond further.

My Story: I am a retired surgeon and former Certified Financial Planner® who resigned my “marketing trademark” over the long-standing fiduciary flap. I watched this chicanery for more than a decade after protesting to magazines like Investment Advisor, Financial Advisor, Registered Rep, Financial Planner, the FPA, etc; up to, and even including the CFP® Board of Standards; to no avail. Feel free to contact me for a copy of a 43 page fax, and other supportive documentation from the CFP® Board of Standards – and their outsourced intellectual property attorneys – over a Federal trademark infringement lawsuit they tried to institute against me for innocent website errors placed by a visually impaired intern. Obviously, they disliked the launch of our CMP™ program. As a health economist and devotee of Ken Arrow PhD, I polity resigned my license, as holding no utility for me, to the shocked CFP Board. They later offered to consider re-instatement for a mere $600 fee with letter of explanation, to which I politely declined. Of course, my first thought after living in the streets of South Philadelphia while in medical school, during the pre-Rocky era, was to say f*** off – but I didn’t. Nevertheless, I still seem to be on their mailing list, years later. No doubt, the list is sold, and re-sold, to various advertisers for much geld. And, why shouldn’t they; an extra bachelor, master and medical degree holder on their PR roster looks pretty good. I distrust the CFP® Board almost as much as I distrust the AMA, and its parsed and disastrous big-pharma funding policies. Right is right – wrong is wrong – and you can’t fool all of the people, all of the time, especially in this age of internet transparency.

Shaking my Fist at Somnath … in Envy

And so, why do I shake my fist at Somnath Basu? It’s admittedly with congratulations, and a bit of schadenfreude, because he wrote an article more eloquently than I ever could, and will likely receive much more publicity [good or slings-arrows] for doing so. You know, it’s very true that one is never a prophet in his own tribe. Oh well, Mazel Tov anyway for stating the obvious, Somnath. The financial services industry – and more specifically – the CFP® emperor have no clothes! Duh!

ho-journal5

Good Guys and White Hats

Now that Basu’s article has appeared in Financial Advisor News e-magazine, the other industry trade magazines are sure to follow the CFP® certification denigration reportage, in copy-cat fashion. And, the fiduciary flap is just getting started. This is indeed unfortunate, because I do know many fine CFP® certificants, and non-CFP® certified financial advisors, who are well-educated, honest and work very diligently on behalf of their clients. It’s just a shame the public has no way of knowing about them – there is no white hat imprimatur or designation for same – most of whom are Registered Investment Advisors [RIAs] or RIA reps. For example, we know great folks like Douglas B. Sherlock MBA, CFA; Robert James Cimasi MHA, AVA, CMP™; J. Wayne Firebaugh, Jr CPA, CFP®, CMP™; Lawrence E. Howes MBA, CFP®; Pati Trites PhD; Gary A. Cook MSFS, CFP®, CLU; Tom Muldowney MSFS, CLU, CFP®, CMP™;  Jeffrey S. Coons PhD, CFP®; Alex Kimura MBA, CFP®; Ken Shubin-Stein MD, CFA; and Hope Hetico RN, MHA, CMP™; etc. And, to use a medical term, there are TNTC [too many, to count] more … thankfully!

Conclusion

Your thoughts and comments on this ME-P are appreciated. Feel free to review our top-left column, and top-right sidebar materials, links, URLs and related websites, too. Then, subscribe to the ME-P. It is fast, free and secure.

Speaker: If you need a moderator or speaker for an upcoming event, Dr. David E. Marcinko; MBA – Publisher-in-Chief of the Medical Executive-Post – is available for seminar or speaking engagements. Contact: MarcinkoAdvisors@msn.com

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