Is The Fiduciary Rule Dead Or Alive? What Its Fate Means To You

A controversial rule requiring advisers to act in their clients’ best interests when it comes to managing retirement accounts has been ferociously contested, and may soon be dead.

The Fifth Circuit Court, which covers Texas, Louisiana and Mississippi, said on Thursday the Department of Labor, which oversees the fiduciary rule, “overreached” with its mission. The fiduciary rule, also known officially as the “Conflict of Interest” rule, states advisers have to give conflict-free advice on retirement accounts, putting their clients’ needs ahead of their own potential compensation. That means shifting away from commissions on various investment products and becoming completely transparent on what they do and the advice they provide. Because other circuit courts sided with the government, the rule’s fate may lay in the hands of the U.S. Supreme Court, but it is currently unclear. “Though this may not be the end of the DOL rule — the appeals court decision could still be heard and potentially overturned by the Supreme Court — it is the latest indication that the Trump-era SEC and not the DOL will be taking the lead on fiduciary issues moving forward,” said Steven Boms, public policy adviser to financial services firm Envestment.

See: Answers to 17 questions you might have about the fiduciary rule

The Obama administration, which proposed the rule, claimed it would save Americans $17 billion a year from conflicted advice. The U.S. rule was weaker than what other countries have in place to protect investors, such as in the U.K., where commissions are banned and advisers must pass harder tests, said Betsey Stevenson, a former member of the President’s Council of Economic Advisers who worked on the fiduciary rule, and currently a public policy and economics professor at the University of Michigan. “With the court undoing that, it means you have to ask really hard questions if you’re going to a financial adviser,” she said.

Financial advisers saw this coming, especially after the Trump administration delayed the rule’s implementation, and though some say they are disappointed by the turn of events, they seem hopeful that enough word has gotten out that not all financial advice is good advice. “The fact that it was so deeply fought on both sides has brought it to the forefront,” said Jeffrey Levine, the chief executive and director of financial planning at BluePrint Wealth Alliance. Years ago, prospective clients never asked him if he was a fiduciary but today, the topic comes up with regularity. Though no one knows for sure what will become of the rule, it appears the concept of conflict-free advice is here to stay, he said.

Don’t miss: Still wondering what the fiduciary rule is? You’re not alone

The Fifth Circuit Court said the rule defined financial advice and who gives it too broadly, and that it was “unreasonable.” Opponents argue it will be too expensive to manage the accounts of small investors, and that it’s possible for advisers to charge commissions without conflict. (Some proponents of the rule agree that not all commissions are bad, like Levine, but they say transparency of fees is key when charging for advice.) The Securities Industry and Financial Markets Association (SIFMA), along with the U.S. Chamber of Commerce and the Financial Services Institute, said in a statement the court ruled on the side of America’s retirement savers, and said the Securities and Exchange Commission should work on a rule that will not “limit choice for investors.” Meanwhile, critics of the overturning of the fiduciary rule, like Carolyn McClanahan, director of financial planning at Life Planning Partners, say they worry the SEC will release a watered-down version, now that there is no pressure from the Department of Labor’s rule.

Treasurers from 11 states have written to the SEC asking for a more stringent fiduciary rule, saying in a March 8 letter that “any standard less robust than [the DOL’s rule] does not provide adequate protection for investors.” Those states are Pennsylvania, Oregon, Iowa, Maryland, Rhode Island, Illinois, Washington, South Carolina, Vermont, Utah and Wyoming. “This implementation delay, and the accompanying non-enforcement agreement, represent a step back in terms of protecting the interests of retirement savers and investors,” they wrote.

Also see: The fiduciary rule is about more than adviser pay. Here’s why that matters

Small investors are at risk of being most affected by the overturning of the rule, as they may not be able to afford a financial planner or have enough saved to qualify for some advisers’ services, and therefore go to anyone who could end up selling them unnecessary products, said McClanahan. She is warning investors to tread lightly when looking for a financial professional, and to urge legislators to find a common ground that would protect consumers and protect the consumer from “unscrupulous people who will take advantage of them.”

Not sure what to do now as an investor?

• Ask financial advisers for their credentials.

• Look up potential advisers and what their certifications mean as well as their backgrounds with tools like the Financial Industry Regulatory Authority’s BrokerCheck, which shows any complaints and years of service for brokers and firms.

• Ask how much they get paid, how they get paid and what various fees mean.

• Know what investment products are being suggested or used, and how they are managed.

• Research advice, such as rolling over your assets from a 401(k) to an individual retirement account.

“It may be a good choice for you, but maybe not,” Stevenson said. “You have a lot of options when it comes to your retirement savings.”