The Code – Issues for advisers (Part Two)
Your Guide to the Code, Part Two is a must-read. It covers off many of the issues causing debate, including: Duty of care; Will you need a degree? Your competence.
Tuesday, April 24th 2018, 6:00AM 
8 Comments
by John Berry
This commentary looks at the new Code of Conduct and issues, opportunities and challenges for adviser businesses. It is written by John Berry, a member of the Code Working Group (CWG), in his capacity as a commentator on NZ financial markets and as CEO of Pathfinder. This commentary therefore contains his personal opinions and is not written on behalf of the CWG.
Last week in Part One, I presented an overview of the process and challenges faced by the CWG in developing a new Code. This Part Two focuses on two key issues for which adviser input continues to be welcomed by the CWG:
- What is an appropriate level of duty of care; and
- What is an appropriate base level of adviser competency?
This leaves several further issues for Part Three.
Good advice outcomes
The CWG’s 12 March 2018 consultation paper proposed a duty of care level based on what the CWG termed as “good advice outcomes”. This was intended to mean that a consumer receiving advice could reasonably expect quality advice meeting their needs and expectations. The term reflects the FMA’s guidance on what constitutes good conduct (i.e., a “good outcome”).
I acknowledge the widely held view from advisers that using the word “outcome” in describing a level of care may be unhelpful. This may lead consumers to believe a financial product will always produce a “good outcome” when the term is intended to refer to a “good advice outcome”.
Referencing back to the FMA’s definition of “good”, they state, “ … good does not mean that customers are insulated from risk or that a product always makes money”. In other words, “good” insurance, mortgage or investment advice may eventually result in an unexpected bad financial outcome.
Alternative terms for “good advice outcomes” were suggested at the CWG roadshows, including: good advice, quality advice, good advice experience, good advice framework, good advice output, good advice process, competent advice and several others. I encourage all advisers to make their views known to the CWG.
A high-level duty for advisers?
Regardless of the final terminology used when describing an adviser’s duty of care, the underlying issue is what level of duty should govern financial advice? This question applies consistently across all advice: investment, risk, mortgage or financial planning.
I’ve published personal views previously for investment advisers, believing that advisers should act in their client’s “best interests” (a fiduciary standard) as opposed to simply “… placing the interests of the client first” (a suitability standard, a lower duty of care). My view favouring the higher standard is/was not widely supported by adviser associations.
Mandating a fiduciary duty of care in New Zealand presents challenges given the deep integration of vertically integrated organisations (VIOs) into New Zealand’s financial marketplace. VIO’s both manufacture financial products and provide advice. This makes a broad “best interests” duty impossible without clearly limiting scope of engagement, but that in turn would undermine the intent, of the “best interests” principle. An alternative could be to restate the existing Code of Conduct’s “client interests first” duty (Code Standard One).
Setting in place a high-level duty for advice can benefit both consumers and advisers. Such a duty helps consumers become more confident in seeking financial advice. At the same time it underlines a level of professionalism for financial advice and advisers.
That said, any broad-based high-level duty mandated in a revised Code of Conduct will struggle to be tightly defined and enforceable. This leads to a further question – if it doesn’t add to existing statutory duties, then why have it?
Take some time to consider your position on this important discussion. If you think there should be a broad-based standard duty of care:
- What should it be? Why? (You may even think the new Code should stick with the existing “client first” principle).
- Should such a duty be enforceable? An alternative could be to have it included as a “spirit of the code” provision useful for interpretation.
Competence, knowledge and skill – “aggregation”
A primary area of work for the CWG is to determine competence requirements. These are divided into two streams:
- General competence requirements (apply to all advice situations); and
- Particular competence requirements (apply only to some advice situations).
A key point in the CWG consultation paper is that to measure competence the “competence, knowledge and skill” of both the individual adviser and the financial advice entity for which the adviser provides advice are combined (or aggregated). This covers two clear extremes and many different business models that fall in between:
- If the financial adviser is a sole practitioner the test will rely on that adviser’s individual competence, knowledge and skill.
- If the advice is robo-advice offered online, the test will likely rely solely on the entity’s competence, knowledge and skill.
- If advice is delivered by a human but they are one of many staff in a corporate with structures and processes for advice delivery, then the competence, knowledge and skill will be measured by combining those of the individual and the corporate.
I would argue that the latter model of aggregation is simply a variant of the existing QFE model.
The rationale behind the aggregation model for competence, knowledge and skill is that it allows a single code standard (for individuals, robo-advice and large entities). This contrasts with, say, the different view held by SIFA that suggests two separate codes are needed (one for advice delivered by humans and another for robo-advice).
To understand what this means in practice we need to drill down further on competence requirements under the Bill. These are divided into general and particular competence, knowledge and skill.
General competence
The Bill provides that “the Code must provide for minimum standards of professional conduct …. including … of general competence, knowledge, and skills”. These may be “… different standards … in respect of different types of financial advice, financial advice products, or other circumstances.”
The CWG consultation paper suggests two general competence standards that apply to all advice situations:
| Competence standard | How is it achieved or demonstrated? |
| The aggregate of the individual adviser and entity’s competence must deliver good advice to the customer. | The entity has processes in place to ensure good advice is delivered to clients. These must be documented. For a sole practitioner or small adviser business relying on the adviser’s individual skill, this could be a short document. For a large organisation this should be a major piece of work. |
| The adviser and entity must be up to date with consumer protections (i.e. consumer law etc). | For an individual adviser this means establishing s/he understands obligations to the same level as someone who completed Level 5 Unit Standard 26360 within the last 3 years. For an entity – it will need to prove it has controls to make sure these consumer obligations are complied with. |
As it stands, general competence requirements will largely remain ‘as is’ for a sole practitioner AFA under the current Code, i.e., Code Standard 14 already requires an AFA to have the competence, knowledge and skill to provide a financial adviser service. What is new is that this will apply to robo advice and RFAs.
Particular competence
This is where the rubber really hits the road. The Bill states that “the Code must provide for minimum standards of professional conduct …. including … of particular competence, knowledge, and skills”. In this regard, the Code must identify “… different types of financial advice, financial advice products, or other circumstances.” Note how this contrasts to the “may” for general competence requirements in the Bill. In other words, the CWG must now address particular competencies, determining the best way to differentiate how advice is being provided. This rates as one of the toughest challenges of the Code.
Should differentiation for particular competence, knowledge and skills be made by type of financial advice, type of product or another set of circumstances?
The CWG consultation paper proposes differentiating for particular competence by considering product and planning. The rationale here is that a similar differentiation exists in the Bill’s definitions where:
- Product advice means any financial advice about a product (remember financial advice includes giving an opinion/recommendation to buy or sell a financial product and it will capture what many regard as “sales”).
- Planning involves broader situations where a higher level of thinking is required for competent advice (i.e., where many variables, factors and judgements are considered in the formation of advice).
Here’s what the CWG has suggested for product advice and planning competence standards:
| Competence standard | How is it achieved or demonstrated? | |
| Product advice | Competence equals the standard of an individual who has Level 5 | One (obvious) way is for the individual to have the Level 5 qualification. But this is a “combined” or “aggregate” test – so the entity may have structures and processes that ensure the output is of Level 5 standard, even if the individual does not have Level 5. |
| Financial planning | Competence equals the standard of an individual who has a degree qualification plus Level 6 financial planning qualification. | One (obvious) way is for the individual to have the degree qualification. But this is a “combined” or “aggregate” test – so the entity may have structures and processes that ensure the output is of the degree standard, even if the individual does not have a degree. |
It has been argued that the “financial planning” category may inadvertently capture large numbers of advisers and result in unexpected outcomes – simply because they may look at needs/goals of a client when recommending one financial product. This could encourage creep towards product advice and away from any activity that could be characterised as financial planning. That would be unhelpful to consumers.
The CWG again welcomes further submissions on this topic.
So, do advisers need a degree?
The CWG proposal is that there be a combined (or aggregate) test of both the individual adviser and the entity for which the adviser provides financial services and advice. Individuals would not necessarily be required to have a degree. What they must be able to do is provide evidence that their advice process delivers to the standard of someone who has a degree. It is important to highlight that this suggests the focus is on advice output (quality), not input (having a degree).
There are several other points to think about in relation to degree requirements.
- For a small advice business where an adviser does not have a degree, the business can comply with the ‘degree requirement’ by having processes, procedures and controls to ensure advice consistency and quality. How would you envisage this working in practice?
- The CWG paper mentions degrees in financial planning, accountancy, business, commerce, economics, finance or management. Is knowledge taught in these degrees essential for giving advice?
- Are there other degrees that could be equally important, such as psychology for understanding client behaviour?
- Is it not so much the knowledge imparted by a degree, but rather that a degree proves you’ve got the ability to think, analyse and problem solve to a high level?
- If you don’t believe a degree is even remotely relevant to the discussion, what other minimum standard would you set?
Share your thoughts with the CWG on this critical issue of competency.
A final key point for the discussion around degrees is also how should existing advisers (with or without a degree) transition into the new regime. Let’s consider that in Part Three of this commentary.
A final reminder – this commentary expresses the personal views of John Berry and Pathfinder (it does not represent official views of the Code Working Group).
John Berry is co-founder and CEO of Pathfinder Asset Management, a boutique responsible investment fund manager. He is also a member of the Code Working Group.
Useful links:
The Code Working Group’s consultation paper (start with the executive summary on page 8)
Slides from the Code Working Group’s public presentations in March
Financial Services Legislation Amendment Bill (it can be hard work reading legislation - may be start by looking through the headings to clause 27)
MBIE’s discussion document on financial advice disclosure.
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Comments from our readers
But I have to say this Part 2, which I was eager to see, and had told him so, is a big fat disappointment. And in one respect not helpful at all.
At one level, Part 2 is a thinly disguised defence of some of the bizarre things CWG has come up with, like:
1. "good advice outcomes" - which our linguistics expert has told us is ambiguous at best
2. combined expertise
3. a degree requirement for ordinary mom and pop advisers (i.e. most RFAs)
4. the way they have cut the general/specific competence piece to apply only in the context of "advice situation" rather than an alternative cut that would apply to advisers with general competence applying to all advisers, and specific competence applying only to those in that the specific specialty
5. their description of product advice and financial planning (which looks suspiciously like sales and advice to us) rather than following the reasons why investment planning was introduced to the definition of advice in FAA (Hawes rule); and
6. so on.
But his piece goes further than even the CWG in regard to the high level duty for advisers.
We thought FSLAB put that to bed when it included a statutory duty to give priority to the client's interests.
We do not think it is right that the Code should be allowed to introduce what would have the effect of being more statutory duties. Statutory duties should be in the statute - fleshing out might be in the Code.
In his section on "A high level duty for advisers?" John reruns the debate on what did the overarching standard in the existing AFA Code mean. But he goes much further than all the stuff I have read in the 3+ years of the review review when he raises the possibility of "best interests (fiduciary duty)".
Now while one leg of the fiduciary duty that applies to some relationships under the common law is to act in the best interests of your client, its not the whole duty - there are other limbs.
So John (in fact anyone) shouldn't use the terms best interests and fiduciary duty) as synonyms or equivalents.
The sceptic in me now wonders whether the real reason John was included in CWG by MBIE and the Minister wasn't to run this debate. I could easily be wrong, as no reason was given as to why any particular member (other than the 2 consumer and dispute resolution representatives) was actually selected.
Australia has a "bests interests" duty (which as we keep saying they never define - rather they set out a list of steps as a safe harbour and say effectively "follow these and you will have met the best interests duty; don't follow them and you may be in breach") but that is not a fiduciary duty. The Canadian provinces looked into adopting a best interests duty, but they could not agree how it would be defined and quietly dropped the idea0. I am pretty sure they never said best interests = fiduciary duty.
I really don't think it is at all helpful that at the last minute before submissions close, John as a member of CWG has reintroduced the topic which was not included in the formal consultation paper.
It sort of makes me think he may have unsuccessfully tired to run the view within CWG but hadn't been able to get a majority to support him, but that as second prize he has been allowed to run this line here which in other contexts might be considered as having "gone rogue".
Great contribution.
"What am I missing?" you ask.
In my view nothing.
It's time to remind everyone what Sir Anthony Mason retired Australian CJ said to a conference in 2009
“Our system of regulation
proceeds on the footing that the
adviser may be a product seller.
Indeed, our system enables
the product seller to adopt the
disguise of a financial adviser
and endows that disguise with the
aura of legitimacy
by calling him a “licensed” financial adviser”.
Change a few words and that would refer to NZ in 2018.
Regards
Brent
More profits !
Do we need a separate code for smaller adviser firms ?
Why not, since our operations are very different to the BEOT's ?
Trying to jam us all in under one code may in reality be unworkable
This could all have been achieved by the insurance companies if they were not so self interested. The companies could have had regulation in place simply by taking notice of change of business advice. They could have done it by refusing agencies to the Gary Patterson's of this world. But no, their greed has driven a us to where we are today. I thank the Partners of this world for putting this industry under pressure. They have supported poor behaviour for their best interests and as a consequence, we all face a far more complicated world which has no room left for common sense and simplicity.
Yes please, bring it on
Hopefully it would put an end to some of the gamekeepers at the MBIE and FMA becoming poachers at the BEOT
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A couple of things are glaring to me – the challenge of Code Standard One, and the proposal for aggregating competencies.
Code Standard One is a problem due to the issues and realities John highlights (i.e., given that VIO’s are totally embedded into the industry). To have any real meaning at all, the standard should set the stage of all conduct to be in the client’s best interests (the fiduciary standard) but this is simply impossible when advice is limited to the products manufactured by an adviser’s employer. However, the situation is what it is, and the reality is that the pool of financial advisers all of this revised legislation is aimed at regulating is massively overweight aligned advisers, ‘advising’ clients in a limited range of VIO-manufactured mortgage, insurance and investment products (and, therefore, in fact, sales, not advice no matter how the Govt (FMA, MBIE CWG) dance around terminology).
Setting into law meaningless, feel-good phrases like “good advice outcomes” just compounds the situation.
As many have already noted, the horse has already bolted, but surely the CWG has an opportunity here to at least do a reasonable job in their work despite working with the constraints imposed by the reality of the influence of NZ’s VIO’s.
Using the term “good” anywhere in Code Standard One seems insane to me – whether the term has been uplifted from FMA guidance about advice or not.
Reflecting on Code Standard One’s intent, surely it is that all New Zealanders can expect to get competent and fair financial advice.
Surely that’s the crux of the matter. Incorporating competent and fair financial advice incorporates reasonable guidelines for any VIO or independent adviser on underlying conduct. Competency in an uncertain world with uncertain futures is at the core of any advice (be it financial, legal or medical for example – or even from my mechanic), not outcomes. Nobody can control outcomes, why on earth would that be in the standard? And, I’d add ‘fair’ to the equation of good conduct as this would encompass the need for all advisers (VIO and non-VIO) to provide transparent disclosure on product alternatives, reasonable fees, etc.
Aggregating competencies is just a bizarre concept to me. As you note, despite what I understand will be new terms for advisers and financial entities, all of this is just a variation of the QFE where it’s the institution who holds responsibility on competent advice for their ‘financial advisers’ – aka salesforce. Taking away individual responsibility for bring basic competencies to an adviser/client relationship surely just further highlights that these advisers are salespeople for their companies – doesn’t it?? What am I missing?
This is all sorts of wrong. The AMP story demonstrates this massive misstep, and in the US, the activities of Wells Fargo. This belief in big corporates, that they will do right, put in the right systems, processes and controls is arcane.
Competencies must lie with a financial adviser, sitting in front of mum and dad. Unfortunately, without any front-facing advisers sitting on the CWG, or with the FMA still unresponsive to actual adviser over the last many years, I can only conclude that the interests of mum and dad are not really at the heart of any of this … but rather putting a square peg (the VIO’s) into a round hole (the feel good ‘good outcomes for all!”).