A recent Wall Street Journal article reported that more than 1,600 advisors who declared personal bankruptcy or faced criminal charges had failed to notify FINRA and the firms for which they worked. And, the article noted, those advisors had more client complaints and regulatory actions on their records than their solvent colleagues who had never been charged with a crime.
As someone who has followed the wealth management industry for many years (back to the days when it was called retail brokerage), it comes as no surprise that those whom the public trusts to manage its money are often terrible at managing their own.
In the 1990s, Merrill Lynch had a deferred stock award program called FCAAP. Advisors who met certain productivity criteria during the year were awarded Merrill Lynch stock. The award was still taxable income, so advisors who were given, for example, $100,000 in MER were required to have $35,000 withheld to pay taxes. Yet even though they knew the awards were coming, these advisors often had to sell other securities in order to come up with the cash to pay the taxman. Not exactly textbook financial planning.
Similarly, during the Sandy Weil era, Smith Barney advisors were encouraged to invest their own money in Citi stock. Employees were allowed to defer a portion of their income and use the money to buy Citi at a 25% discount. For years, this CAP plan was a remarkable retention and recruiting tool, and branch managers, who were incented by Citi to have their advisors participate in the plan, each year would require them to put 10% of their income into CAP.
Yet many Smith Barney advisors often begged to be released from the program. Even though buying a blue chip stock at a 25% discount with as much pre-tax earnings as possible was the ultimate financial no-brainer, the firms advisors often failed to take advantage of the program, because they were tapped out. Again, not exactly textbook financial planning.
Back then, advisors with Smith Barney and Merrill Lynch were regarded as the most well-trained, most professional, and working for firms with the strongest cultures. But even those advisors often lived above their means, suffered through financially draining divorces and, perhaps at times, engaged in legally questionable behavior.
I bring all this up by way of acknowledging that many advisorslike many doctors and lawyersare less than perfect. Some of them are truly bad advisors, only interested in their own well-being at the expense of their clients.
But my experience during 30 years as a recruiter in this industry teaches me that the vast majority of advisors care passionately about their clients and take their responsibility for their clients financial well-being very seriously. So while the Journal headline screams about how crooked, broke advisors are allowed to continue working, I also think its fair to examine how FINRA, and the industry in general, tars those advisors who uphold the law and act responsibly with the same brush.
Under the current regulatory regime:
1. An advisor is guilty until proven innocent, and the accusations stay on his or her record forever.
Absurd accusations, though denied; any written complaint, no matter how unfounded or trivial, appear indefinitely on the advisors publicly available BrokerCheck record. It is possible for brokerage firms to have those complaints expunged, if they were willing to expend the time, money and effort to do so, but that almost never happens.
2. Brokerage firms will settle groundless complaints in order to avoid the expense of litigation, even though doing so becomes a permanent smear on an advisors record.
An unhappy client writes a complaint alleging unauthorized trading, unsuitable recommendations and churning (the unholy triad of non-compliance). The advisor provides his firm with notes of meetings and conversations with the client, including phone records proving that they spoke frequently about the investment in question and its impact on the clients portfolio. He also shows his management the clients financial plan, which supports his contentions.
The advisor wants to go to arbitration to show the world that he did nothing wrong. Yet even though the firm believes him, it insists on settling for $100,000 because it wants to avoid the cost of further litigation and the risk that arbitrators will view the matter differently. This customer complaint shows up on the advisors cover page on BrokerCheck as Customer Complaint 1. Details of the complaint and the business reasons for settling it are only seen if a curious party takes the time to open up the accompanying PDF.
3. Contingency torts attorneys aggressively market their services to investors as a way to recoup investment losses.
Lost Money in the Stock Market? Call this number because we can recover some or all of your losses! This type of billboard is common on both coasts of Florida. Google sue your stockbroker and see how many responses come up. And there is a book available on Amazon that explains how to sue your stockbroker without an attorney. Any investor who is dissatisfied with losses, or even insufficient gains, can find an attorney willing to sue, knowing that even at pennies on the dollar a settlement could reach five or six figures.
4. On FINRA BrokerCheck all criminal complaints look the same.
In 1971, an advisor stole a keg of beer as a fraternity prank and was arrested. Now retired, that youthful indiscretion followed him around his entire career. He spent the next 40 years in the industry as an FA, branch manager and firm executive, but With every job change, he recounts, I had to explain what happened.
If another advisor stole money from clients last year by forging their signatures, he or she would be given the same criminal label as the keg thief from 1971. Surely FINRA has the ability to create new labels that differentiate between financial fraud directly related to an advisors responsibilities and a petty misdemeanor from 40 years ago.
5. Many complaints result from a firms actions and are not the responsibility of the advisor.
Perhaps the creative minds at FINRA can devise a label that distinguishes between complaints on an advisors record due to his or her own malfeasance and those due to the firms or industrys. For example, the Auction Rate Securities market froze during the financial crisis, resulting in thousands of client complaints. Should those be classified on an advisors record in the same way as churning or unauthorized trading? What about complaints related to the post-tech crash research scandal? Analysts were making recommendations at the behest of their firms to please and then solicit potential investment banking clients. Yet those complaints too will follow an advisor forever.
So, while it is easy for the mainstream press and non-investing public to castigate Wall Street as a monolithic industry driven by unbridled greed that nearly caused a second Great Depression, shouldnt the industrys own regulatory body do a better job of differentiating between the black hats and the white?
Danny Sarch is president of Leitner Sarch Consultants (leitnersarch.com), a boutique search firm specializing in the wealth management industry.