[Weekly Wrap] Why doesn't everyone have to put the clients' interests first?
Financial advisers should be thankful they have Rob Everett leading the Financial Markets Authority, especially as the next 18 months will be all about the review of the Financial Advisers Act (FAA).
Monday, November 3rd 2014, 10:40AM 
3 Comments
I've spent a little bit of time with him and listened to what he had to say at Grosvenor's annual conference on Friday. We'll run a few stories on Good Returns on this and a presentation he is doing in Auckland this week.
Advisers can feel confident they have someone in this role who supports what they do. Everett is now on record as saying he told the FMA during the job interview process last year that he believes that the existence of a strong and respected advisory sector is critical for New Zealand’s financial markets. He also believes the FMA has an important role in encouraging the use of financial advisers.
While he has acknowledged advisers have made a lot of progress in lifting standards, it seems the FMA is not, quite, yet ready to promote the sector to the public.
During his Grosvenor presentation he also talked about the costs of regulation. He has heard the calls that they have become too much of an impost, but has also pointed out that the costs of not being regulated would be higher for the sector.
The other theme which resonates with advisers is about the one around confusion over the three designations, AFA, RFA and QFE. I am sure the three of these won't survive the review.
If there is a blindly obvious flaw in the financial adviser regulation it is this. Every adviser who is governed by the Code of Conduct has to put their clients's interests first. However, Everett is critical that staff in organisations like banks don't have to do that - and by inference suggests they don't. Here's what he says:
"Despite wrangling over the precise meaning in any given set of circumstances, personally I believe - very strongly - that starting the Code with a statement that requires AFAs to put the clients’ interest first, and to act with integrity, was absolutely the right thing to do.
"I believe just as strongly that those within the big banks and fund managers that deal with retail money - and those that sell financial products to retail consumers - should have the same obligation."
Later in the day I spoke to ANZ chief executive David Hisco about some of these comments and how the bank "sells" (his word) KiwiSaver. He defended the practice of banks using the tactic of transferring KiwiSaver members into their schemes so their clients can see their balances on their bank statement. He also said because ANZ has a market-leading KiwiSaver product people should be complaining if they weren't being put into their scheme.
Hisco also said there were no systemic issues around what was happening, but there could be some "at the margins."
I imagine the dialogue between bank boards and the FMA are pretty interesting discussions at the moment.
Everett will be speaking to advisers at a function in Auckland this week on the FAA. Details here.
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Fortunately, notwithstanding the legislation, my equitable remedies are still available – so I'd sue you in equity as my advisor (RFA, AFA, QFE, XXX, whatever – doesn't matter). My equitable remedies are far better than under the FAA, and your fiduciary obligations are higher and easier to litigate than those under the FAA (because they are more certain). I'd probably at least get all of my money back, plus any commission you might get paid, and perhaps some profit.
Disclosure does not obviate your fiduciary obligations. At the very least you would have to ask specific permission of your client to retain any commission, and get a waiver of some sort on the conflict, which needs to be a fully informed waiver. E.g, how much that commission is compared to other commission etc. You would still, notwithstanding your disclosure, have to act in my best interests in making that decision or providing that advice. Very hard to establish if you're taking commission on the side (disclosed or not). Admittedly, these are just my views, and not shared by all necessarily or to the same extent.
Sadly, the real answer to your question is that, unfortunately for the clients, the focus on disclosure has probably removed advisor’s true fiduciary obligations, so ultimately you're right - disclosure cures all - much as it did during the finco collapse with related party lending.
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I would be interested in other peoples’ comments on this ie in other words how can not putting someone into a low cost fund simply to get commission when all the academic research says that low costs are the best indicator there is of outperformance be “putting your clients interests first”. Clearly it isn’t. Similarly how can burdening a client with 3% in annual fees when the equity risk premium is 3% be putting your clients interests first? The answer to that one isn’t obvious either!