The Department of Labor (DOL) recently proposed sweeping changes to the definition of an “investment advice fiduciary” under the Employee Retirement Income Security Act (ERISA). This new fiduciary rule aims to expand the types of retirement investment recommendations that trigger fiduciary obligations.

As a financial advisor, it’s crucial to understand how the evolving fiduciary landscape may impact your business. This post will break down the key aspects of the DOL’s proposed fiduciary rule and how you can navigate compliance.

What Would the New DOL Fiduciary Rule Do?

According to the DOL, the proposed amendment would make more retirement investment recommendations subject to a fiduciary standard. Specifically, the new rule would apply when:

• A person makes a recommendation to a retirement investor on an investing plan or IRA assets
• They receive a fee or other compensation for the advice
• The advice is provided regularly as part of their business
• The recommendation is presented as being based on the particular needs of the investor and serves as a primary basis for their investment decisions.

Essentially, the DOL aims to cover nearly all situations where individualized retirement investment recommendations could be perceived by the investor as advice to rely upon. This is a major expansion compared to the current rule, which requires a mutual understanding between advisor and investor that the recommendation will serve as a primary basis for investment decisions.

The proposed rule also brings rollover recommendations squarely into fiduciary territory. Advice to roll over assets from an ERISA retirement plan to an IRA would trigger fiduciary status, even if it’s the only recommendation made related to the plan.

Why Did the DOL Propose This Change?

In the DOL’s view, there is an inherent relationship of trust and confidence when advisors provide individualized retirement investment recommendations that could influence an investor’s decisions. They believe this should carry fiduciary responsibilities, regardless of whether there is an explicit mutual understanding between the parties.

The DOL also expressed concern that some advisors place their own interests ahead of what is best for retirement investors. By expanding the fiduciary definition, the goal is to require all personalized retirement advice to adhere to a “best interest” standard. This aims to ensure recommendations are truly aligned with investors’ interests.

From the DOL’s perspective, retirement savers need fiduciary protections due to the significance of these assets, the complexity of choices, and the information asymmetry between advisors and investors. Broadening the fiduciary rule is seen as crucial to improving retirement security and savings in America.

What Would Fiduciary Status Mean Under the New Rule?

Being considered an investment advice fiduciary under ERISA carries significant implications:

• Fiduciary Duty: As fiduciary, advisors would be legally required to provide advice solely in the best interest of the retirement investor and avoid conflicts of interest. This is a higher standard than the current “suitable” recommendation requirement for brokers.

• Prohibited Transactions: Fiduciaries are restricted from engaging in certain transactions that could pose conflicts, like receiving payments from third parties. Special exemptions apply to provide flexibility, but advisors must disclose conflicts and act in investors’ best interests.

• Liability Risks: Retirement investors would gain broader rights to take legal action regarding fiduciary breaches around investment advice. ERISA provides strong remedies, including the ability to hold fiduciaries personally liable for losses.

In essence, being deemed an ERISA fiduciary brings stricter conduct standards, more disclosure requirements, and greater legal risks compared to operating in a non-fiduciary capacity.

Analyzing the Potential Impact on Financial Advisors

Expanding the fiduciary definition has major implications across the financial advice industry:

• Increased Litigation Risks: Plaintiffs’ attorneys will likely leverage the new rule to bring class action lawsuits against advisors for perceived fiduciary breaches. Advisors may see more claims alleging inappropriate use of commissions, excessive fees, or conflicted advice.

• Business Model Disruption: Scaling fiduciary advice across small retirement accounts may be challenging. Some advisors may shift to fee-based accounts or restrict advice to wealthier investors. New exemption conditions add complexity for commission-based advisors.

• Regulatory Oversight: The DOL gains enhanced ability to investigate fiduciary violations on ERISA retirement plans, bolstered by required compliance reports from advisors. Examinations may increase, along with DOL enforcement actions for perceived misconduct.

• Compliance Costs: Demonstrating ongoing adherence to fiduciary standards could increase securities compliance expenditures. Updated oversight processes, more documentation, extra training, and new disclosures may be necessary.

While many reputable advisors already act in clients’ best interests, the expanded rule could elevate risks, costs, and complexity across the industry. The impacts may fall disproportionately on small and mid-sized advisors less equipped to bear the increased burdens.

Best Practices for Compliance

As the industry awaits finalization of the new fiduciary rule, advisors can take proactive steps to prepare:

• Review business practices to identify areas that may require changes under the new rule, such as rollover recommendations or commission-based compensation on retirement accounts.
• Update compliance policies, procedures, and documentation to fortify adherence to fiduciary standards and restrictions.
• Assess disclosures and client communications for opportunities to better explain advisor fees, compensation, and conflicts of interest.
• Evaluate whether advisory contracts may need revised language regarding fiduciary status, applicable standards, or dispute resolution processes in the event of litigation.
• Expand advisor training programs to ensure professionals fully grasp the heightened duties and prohibited transactions under ERISA.
• Monitor DOL rulemaking for any modifications before finalization and plan for sufficient implementation lead time. Engage legal counsel to support compliance efforts.

The fiduciary landscape continues to evolve. Staying abreast of the regulatory environment and establishing rigorous policies are key to managing obligations.

Contact My RIA Lawyer for Your Fiduciary Compliance Needs

The proposed amendments will likely expand the fiduciary definition substantially, transforming standards for advisors serving retirement investors. 

My RIA Lawyer in Georgia has the skills to guide advisors through this new fiduciary environment. Their lawyers are thought leaders in this evolving area of investment advice regulation. They offer tailored guidance to position your firm for success under the new DOL rule.

Contact their team to schedule a consultation and let their fiduciary advice lawyers provide the insights you need to serve your retirement clients.