Posted by: Chuck Lowenstein, Senior Securities Editor
Published: September 25, 2018
In a line made famous by Juliet in the William Shakespeare play, Romeo and Juliet, she says "A rose by any other name would smell as sweet." The phrase is commonly used today to suggest that the name given to something does not necessarily describe its meaning. In the case of a rose, there is a specific definition relating to a thorny bush coming from the Latin word, Rosa. So, call it a rock, call it a car, or call it whatever you want. It is still a rose.
What if a securities professional uses the term financial advisor? What does that mean to you? Unfortunately, unlike the rose, there is no legal definition for that term, and, to quote Mr. Shakespeare again (this time from Hamlet), “Aye, that’s the rub.” Because anyone can call himself a financial advisor, confusion reigns in the financial industry, and the SEC has finally taken steps to attempt to address that issue.
Similar to the rose, there is a legal term, investment adviser, found in the federal Investment Advisers Act of 1940 and the state law, the Uniform Securities Act. These persons are held to a fiduciary standard and are defined as an investment adviser by meeting a 3-prong test:
Furthermore, under both federal and state law, excluded from the definition of an investment adviser are broker-dealers if their performance of advisory services is solely incidental to the conduct of their business as a broker-dealer, and they do not receive any special compensation for their advisory services. But, what happens when broker-dealers and their salespersons call themselves financial advisors?
Historically, the stock brokerage industry has used many terms to describe those individuals who are involved in securities sales for broker-dealers. Legally, the term is registered representative (or agent under state law), but the most common term was stockbroker. Euphemisms abound because firms wanted their salespersons to sound like something other than a stock pusher. In the November 19, 1927, issue of The New Yorker magazine, the term customer’s man was used (there were few if any women registered at that time). Later on, they became account executives and, most recently, financial advisors.
In 2006, the Securities and Exchange Commission (SEC) commissioned The RAND Corporation, a major think tank, to conduct a study focused on two questions:
As RAND reported, “The study confirmed that the industry is becoming increasingly complex, firms are becoming more heterogeneous and intertwined, and investors do not have a clear understanding of the different functions and fiduciary responsibilities of financial professionals.”
Of significant importance were the responses to the second question. About two-thirds of the respondents were classified as “experienced” investors, meaning that they had investments outside of retirement plans and/or formal training in finance or investments. Yet, even with that background, when presented with a list of services and obligations and then being asked to indicate which items applied to investment advisers, brokers, and financial advisors, their responses showed that financial advisors were viewed more similarly to investment advisers than brokers.
They attributed part of their confusion to the dozens of titles used in the field, including generic titles, such as financial advisor and financial consultant. Another study, “the 913 study,” was mandated by Section 913 of the Wall Street Reform and Consumer Protection Act of 2010 (Dodd-Frank), and the findings echoed those of the RAND study. Specifically, “Many retail investors and investor advocates submitted comments stating that retail investors do not understand the differences between investment advisers and broker-dealers or the standards of care applicable to broker-dealers and investment advisers. Many find the standards of care confusing, and are uncertain about the meaning of the various titles and designations used by investment advisers and broker-dealers.”
Finally, in April 2018, the SEC released a proposal to limit the use of the terms advisor and adviser. The proposal stated:
We agree that it is important to ensure that retail investors receive the information they need to understand the services, fees, conflicts, and disciplinary history of firms and financial professionals they are considering. Likewise, we believe that we should reduce the risk that retail investors could be confused or misled about the financial services they will receive as a result of the titles that firms and financial professionals use, and mitigate potential harm to investors as a result of that confusion. We are proposing rules that would (i) restrict the use of the terms ‘adviser’ and ‘advisor’ by broker-dealers and their associated financial professionals, and (ii) require broker-dealers and investment advisers to disclose in retail investor communications the firm’s registration status while also requiring their associated financial professionals to disclose their association with such firm. Specifically, we believe that certain names or titles used by broker-dealers, including ‘financial advisor,’ contribute to retail investor confusion about the distinction among different firms and investment professionals, and thus could mislead retail investors into believing that they are engaging with an investment adviser–and are receiving services commonly provided by an investment adviser and subject to an adviser’s fiduciary duty, which applies to the retail investors’ entire relationship–when they are not.
The proposal would restrict any broker-dealer and any individual associated with the broker-dealer from using, as part of its name or title, the words adviser or advisor unless the broker-dealer is registered as an investment adviser under the Advisers Act or with a state, or any individual who is an associated person of such broker or dealer is properly registered as an investment adviser representative.The effect of the proposal would restrict the ability of a broker-dealer (unless also registered as an investment adviser) to use the term adviser or advisor in any manner such as financial advisor/adviser, wealth advisor/adviser, trusted advisor/adviser, and advisory (e.g., “XYZ Firm Advisory”) when communicating with any retail investor.
What final form the rule will take is not clear, but what is clear is that, at least for broker-dealers and their reps, you won’t be able to call yourself a rose if you are not one.