Many advisers feared they would have to make massive changes to their businesses based on the Department of Labor’s (DOL) final fiduciary rule, but it turned out to be a “sigh of relief,” Altston & Bird Attorney Patrick DiCarlo said during a recent webinar, “Final Fiduciary Advice Rule Adopted. What’s Next?”
The final rule includes numerous changes from the version proposed in 2015, including greater flexibility for providing education materials to retirement plan sponsors in a non-fiduciary manner.
“I thought this was actually a good change,” DiCarlo said during the webinar.
In the final rule, the DOL says plan advisers and sponsors can continue to provide general education on retirement savings without prompting fiduciary duties. It also says that investment advice “does not include communications that a reasonable person would not view as an investment recommendation, including general circulation newsletters, television, radio, and public media talk show commentary, remarks in widely attended speeches and conferences, research reports prepared for general circulation, general marketing materials, and general market data.”
The proposed rule left open the possibility that offering an investment product was an implicit recommendation to invest, DiCarlo explains, but the final rule clarifies that there has to be a more explicit recommendation.
Another major concern with the proposal was the issue of whether a best interest contract (BIC) needed to be signed before any communication took place, but the final rule specifies that it doesn’t need to be signed before a recommendation. Instead, the required terms can be incorporated into account-opening documents.
NEXT: Ongoing concernsDespite the changes, DiCarlo points out that concerns still linger for advisers such as litigation exposure. For example, if a fiduciary complies with the statutory obligations but fails to document the reasons for recommendation, is there a litigation risk? In addition, will diversification requirements apply to advisers who give advice with respect to only a portion of IRA assets?
Advisers also remain concerned about the impact of the final rule on the small-investor market. Some may now be hesitant to work in this market because of the additional risk they may incur, DiCarlo says. Advisers who want to continue to receive commissions and other sales-related fees may have to enter potentially large numbers of BICs. The cost of doing so may be onerous.
As other industry experts have pointed out, it will take time to review the rule and determine the exact effect on investors, sponsors and advisers.