advisor fraud, professionals, or salespeople masquerading?

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Postby admin » Mon Jan 30, 2006 12:40 am

New rules pit advisers
Compliance standards taking effect this week

Saturday, January 28. 2006

Jerrold Dorfman, a Providence investment adviser, is required to steer his clients toward the lowest-cost and most suitable mutual funds he can find. It’s part of his fiduciary duty under the Investment Advisers Act of 1940, which requires him to put his clients’ financial interests first.

Brokers at companies such as Merrill Lynch often provide similar advice to their clients, but unlike Dorfman, they are not required to put their clients’ interests before their own.

Rather, they are held to a suitability standard that mandates they sell people appropriate investments, which, for example, may carry higher fees than other equally fitting options.

Registered investment advisers long have been irked by that disparity. But now, to their dismay, an amendment to the Advisers Act that goes into effect Jan. 31 has officially sanctioned brokers offering advisory services without adhering to the act – with some conditions.

The rules, which the Securities and Exchange Commission adopted last year, exempt brokers from the Advisers Act regardless of whether they receive fee-based or commission-based compensation, as long as:
*They provide advice in a nondiscretionary form, meaning they do not have the power to invest the client’s funds.
*Their advice is given in the normal course of brokerage services.
*They disclose to clients that they are in a brokerage account.
The SEC says the rules were created after the line between brokers and advisers had become blurry.

Under the 1940 law, investment advisers are required to place the interests of their clients before their own; in exchange, most are compensated with an hourly fee or payment based on amount of assets they manage for their clients.

Brokers, on the other hand, are compensated through commissions on trades, so their earnings depend on the number of transactions they execute. Under the Securities Exchange Act of 1934, brokers have no fiduciary duty toward clients, but are just required to sell them “suitable” investments.

“For example,” said Dorfman, “it may be suitable for you to buy a large-cap index fund and [brokers] can put you into an index fund – but they don’t have to look into whether their fund is more cost-effective.”

For years, brokerage firms have blurred the line between brokers and advisers by calling their representatives “advisers,” even though they operate as brokers, charging commissions, markups and markdowns on trades. The new rules say this is acceptable compensation, providing brokers disclose this to clients.

The SEC adopted the rules last April, having originally proposed the Advisers Act amendments, called “Certain Broker-Dealers Deemed Not To Be Investment Advisers,” in 1999. Opposition led the SEC to extend the compliance date from last Oct. 24 to Jan. 31. Three industry groups – the American Council of Life Insurers, the Securities Industry Association and the Financial Services Institute – filed separate petitions to extend the deadline to April 2006. They argued that their members needed more time to institute the required organizational changes to comply with the rules.

In fact, the securities association and insurers’ group have said that to comply with the rules – specifically those dealing with what exempts broker-dealers from the Advisers Act – requires member organizations to train their staff and update company data.

Mark Herr, a spokesman for Merrill Lynch, which calls its brokers “financial advisers,” said the firm does not allow reporters to interview its advisers or in-house compliance officers (whose work is most impacted by the upcoming standards). Instead, the firm released the following statement about the new SEC rules:
“We are working diligently to comply with the requirements of the rule and to make sure that clients fully understand the nature of our brokerage services and our financial plans.” Meanwhile, investment advisers continue to fight against the new rule.

In July 2004, the Financial Services Institute, which represents the interests of advisers, filed a lawsuit against the SEC in a U.S. court of appeals. The pending suit argues that brokers with fee-based accounts should be regulated under the Advisers Act.

Dorfman said he would like to see brokers, especially those holding themselves out as advisers, to be held to the same standards. “They should be playing by the same rules,” he said, “they should be held to the same fiduciary standard as registered investment advisers are.”

Published 01/28/2006
Issue 20-42

(advocate comment; the above article is written about United States rules. In Canada I have found nearly every salesperson registered in Canada, uses a form of "title inflation" and calls themselves an "advisor", even though they do not adhere to the fiduciary duties of an advisor, and do not meet the educaitonal qualifications required (see prior posts and in "competition act.... forum). This title inflation is purely marketing, and does not in fact accurately inform the client of the level of care they will necessarily receive)
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Postby admin » Sat Jan 14, 2006 11:43 pm ... 20duty.doc

the link above is to a really interesting site and the following report:

Fiduciary Duty

In the Canadian Financial Services Industry
January 2006

A must read for those interested in the duty of care required of your investment advisor.

Remember what all firms advertise and promise to clients. Something along the lines of "trust us, we are experts and we will look after you". But also remember when 92 year old Norah Cosgrove took RBC to task over $10,000 of alleged self dealing by the RBC advisor, they were able to wiggle out of the $10,000 by claiming that they did not technically meet the required kind of account where the client should have trusted the firm???

Even though the advisor was fired for her part in the alleged elder abuse, the firm still failed to be responsible to the client. Not a pretty scenario for a firm that claims "YOU FIRST" is all its advertising.
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Postby Dorcy » Fri Dec 23, 2005 8:37 am


"The fledgling firm also has created a new retail division by forming partnerships with three independent retail brokerages, which were not identified in the memo. The move gives Genuity access to 160 financial advisers across Canada who can help the brokerage sell retail securities, such as income trusts, directly to smaller investors.

Mr. Kassie told his employees that the firm is in discussions with several other retail dealers in an effort to "materially increase" its reach with small investors." (G&M) ... ng_st.html ... assie.html
Posts: 9
Joined: Tue Dec 20, 2005 10:21 am

Postby Guest » Mon Oct 31, 2005 12:27 pm

The Securities Act allows salespersons to hold themselevs out as advisers. The firms lobbied their MPPs to allow this and the OSC can't do anything about it unless the law is changed.

Write to your MPP about this misrepresentation.

Postby Guest » Mon Oct 31, 2005 10:37 am

MR notice 349 refers to "employees of IDA member firms" which applies to officers, salespersons and non-registered individuals.
Wendyanne D'Silva
Director, Registrations
Investment Dealers Association
phone: (416) 865-3032 / fax: (416) 364-9177

(This response from the IDA director of registrations tells me that perhaps my suspicions were correct. That persons who are registered with the securities commissions as "salespersons" are using title inflation and violating this IDA rule to call themselves something they are not registered as.
This is not only illegal, which is one crime unto itself, but it is misleading to the public and portrays a bit of a "name game" by so-called professionals.

Professionals should not be pulling the wool over the eyes of the public on thier qualifications. Doctors are not allowed to get away with title inflation.

To have this ignored, or worse supported by the large, bank owned firms is in my opinion indicative of the level of greed and corruption they are guilty of.

Another link in the chain of the class actions yet to come.)

Postby Guest » Fri Oct 28, 2005 11:14 pm

to explain the above post a bit for newcomers, I submit that most people across canada selling investments for IDa firms are in fact registered with the IDA, OSC etc as "salesperson". Yet they are using title inflation, and calling themselves advisor or whatever title makes more marketing sense. the notice mentioned in the "member regulation notice MR0349" refers to officers and members of firms who call themselves a title that they are not in fact registered or entitled to call themselves. I am sending this a second time to wendy at the IDA to clarify if this applies to salespersons as well, and if not, why not. It will form partial basis for those who follow in these footsteps and reach a similar conclusion to myself. My conclusion is that title inflation is being used to mislead and misinform clients into believing they have a special trust relationship with thier advisor, when in fact they may be dealing with a salesperson in advisors clothing. See Norah Cosgrove verses RBC to watch this exact defense being used to deny the 90year old client the trust relationship by RBC.

Wendyanne D'Silva, Director of Registration, Investment Dealers Assocaition of Canada

re: member regulation notice MR0349 second request

I was just writing about MR 0349, notice of registration category verses title used . After reading an article in ADISORS EDGE REPORT, Sept, 2005, titled "NAMES PEOPLE PLAY"

Is there a reason that this notice refers only to officers etc, and not to persons registered as salespersons? Are they under a separate notice suggesting similar requirement to use title based on registration?

thanks very much for your clarification

Postby Guest » Tue Oct 25, 2005 12:28 am

Wendyanne D'Silva, Director of Registration, Investment Dealers Assocaition of Canada

re: member regulation notice MR0349

I was just writing about MR 0349, notice of registration category verses title used . After reading an article in ADVISORS EDGE REPORT, Sept, 2005, titled "NAMES PEOPLE PLAY"

Is there a reason that this notice refers only to officers etc, and not to persons registered as salespersons or registered representatives? Are they under a separate notice suggesting similar requirement to use title based on registration?

thanks very much for your clarification

Postby Guest » Tue Oct 25, 2005 12:20 am

I asked the following question at the OSC town hall, and was given the answer below. (which I am not sure answers fully how they are allowed to mislead clients............)

18. Why are investment salespeople who are officially registered as either "registered representatives", or as "salespeople", at the Securities Commission, allowed to represent themselves to the public as "investment advisors", indicating a different level of fiduciary duty to the public, when the Securities Act is clear on which titles are allowed and which are not?
The OSC registers individuals in the categories of salesperson, officer, director or partner. These categories are then further designated as trading or advising. The firm can be registered as either a mutual fund dealer, an investment dealer, or as investment counsel or portfolio manager (ICPM). The latter ICPM category is what we refer to as an adviser (spelled “er”). While advisor (spelled “or”) is widely used in the industry to represent a salesperson or representative, it is not a registration category. The OSC does not register job titles.

Before investing, investors should check the registration of anyone selling securities or offering advice with the OSC. They can do this on the OSC website, or by calling the OSC Contact Centre.

(advocate comment: (or question) If the Securities Act is clear on what is allowed or not allowed as a title, is the OSC answer just another example of them passing the buck? What am I missing?

Update October/05, after finding IDA and MFDA sending out notices to members to add clarification on this topic:

MR0349 - Officer and Business Titles
MEMBER REGULATION notice TORONTO Suite 1600, 121 King Street West, Toronto, Ontario M5H 3T9 Telephone: (416) 364-6133 Fax: (416) 364-0753 CALGARY Suite 2300, 355 Fourth Avenue S.W. Calgary, Alberta T2P 0J1 Telephone: (403) 262-6393 Fax: (403) 265-4603 HALIFAX Suite 1620, TD Centre, 1791 Barrington S

This PDF notice suggests that "employees of IDA member firms may not use an "officer" title (quotes mine) that suggests he or she is registered in a capacity in which he or she is not in fact registered.

(why only applied to "officers" of IDA firms? Is it perhaps due to the fact that nearly "every" salesperson in Canada who works in an IDA firm, is representing themselves by a title (investment advisor) that they are not in fact registered as?

To confirm, find the registration category of your own salesperson in the OSC or the IDA web site. You will find thier business card title is not the same as what they are registered as.

This info comes from a good article by Philip Porado in Sept 2005, ADVISOR's EDGE REPORT, page 6, titled NAMES PEOPLE PLAY.
(Title inflation by todays investment salespeople to (mis) represent themselves and market themselves better to trusting clients)
Well done Philip, good article, great title.

Postby Guest » Mon Oct 24, 2005 6:45 pm

Most advisors are "crooks" but don't blame all of them, they're just doing the job, sales, they were hired to do. The real crooks are the investment bankers who feed them bogus deals like business Trusts. Those institutional salesmen could just as easily market quality deals, really represent investors but don't often because of a system that breads corruption.

(Admin writes:
This post almost makes my argument for me perfectly:
they're just doing the job, sales,

if they only were properly representing themselves as "salespeople", instead of misrepresenting themselves as "trusted advisors", and then putting a sales pitch on clients, then they would be forgivable)
Just be honest about what you do, either for clients, or to clients.

Postby Guest » Mon Oct 24, 2005 5:22 pm

sorry to offend

when referring to evil pigs to user your quote (I won't resort to that) I guess I am referring to the 80% of mutual fund sales that are done using the highest charging method (the DSC) and the hoghest (sic) compensation to the advisor. You should be commended for not DSC'ing your clients.

I think that advisors who represent themselves to clients as professionals to be trusted, and then put them into the highest compensating investment choice.............are nothing but salesmen. Not advisors. Not greedy pigs (your quote again). Just plain unprofessional, and mis-representing to the client.

If you choose to defend them, yet you do not practice the sales abuses that they do that is fine with me. It makes you somewhat more ethical than they, yet you accept the unethical ones into the industry. I cannot accept the bad ones since they make everyone (including yourself perhaps by mistake) look like "evil pigs". (your quote)

I also agree with your comments about the offloading of most costs to you, the advisor, not to mention the offloading of all risks to you, the advisor.

Demonizing advisors will not help you in advocating for investors. I choose to advocate for investors by being a good advisor. I would appreciate the tiniest bit of respect for that.

I choose to demonize only those advisors who cannot display a "client first" method of operation. I take no offense from those who can demonstrate putting clients first. I choose to advocate for investors by helping to rid the industry of those who ruin the reputation of everyone with their greed. I respect your position. Will you respect mine? I got a hunch we are not even on opposite sides, just opposite paths.

Postby Advisor » Fri Oct 21, 2005 10:30 am

B.Comm Finance degree, and Certified Financial Planner actually, not that that matters to you and your lot.

I don't DSC my clients. I have some instances where we discuss a low load of 2% to cover my costs for an extensive financial plan or complicated pension workup. I discuss these options with my clients and we agree on them together. I do however have clients that have transferred DSC funds to me that I am trying to help them get out of as quickly as possible.

YOU have a problem in that you think that all advisors are greedy evil pigs. That is an insult and as you can imagine, impossible. I try to do the best job I can with the products I have on my shelf, and with the AVALANCHE of new costs because of the AVALANCHE of new forms and ineffective compliance being heaped on my by an ineffective regulatory body. Who should pay for those costs? Right now, it's me. Not the dealer, not the client, not the fund company. It certainly isn't the dealer (you would think that the dealer, being the member of the Mutual Fund Dealers Association would pay it's own assocation costs, but no, they charge those back to me, and I have to hire more staff to process more forms to put in more files that require more space and cost me more rent and leave me half the time I used to have available to spend helping my clients).

Demonizing advisors will not help you in advocating for investors. I choose to advocate for investors by being a good advisor. I would appreciate the tiniest bit of respect for that.

Postby Guest » Thu Oct 20, 2005 6:49 pm

what in god's name are you doing calling yourself an advisor if you put clients into the DCS option when advising them mutual funds?

Just because it pays you the highest commission you can get away with, hides the commission from the client on the trade confirmation, fails to disclose the liability to them on the account statement, and earns you a trailer commission on top of the sales commission, DOES NOT make you an advisor.
It makes you a salesperson putting your interests in front of those of your clients. While promising and advertising a duty to care for your clients first.

Apparently you are a tad behind the times. Check the NASD web site on the topic of class b mutual funds to see why they call this activity fraud in some courtrooms.

Will there come a day when professionals in the industry actually act like it instead of claiming the title without delivery?

I am sure you are a very nice person and all, but with a three month Canadian Securities Course as the major requirement to entrance into this industry, please stop pretending all advisors are professionals just because they say they are. Judge them by their actions for clients, not by thier name.

Postby Advisor » Thu Oct 20, 2005 2:36 pm

I love how the fact that moving from DSC to FE costs investors NOTHING, and in some cases reduces their fees, only gets 13 words out of this entire article.

Nice bias!!! Gotta wonder what is in it for a journalist to try to turn something that is only positive for investors into something seedy. You are hurting this industry by doing that, not helping it.

Also didn't mention how in many cases if you don't convert your 10% free each year, you LOSE them, so any advisor who isn't on the ball and doing this with their clients is doing them a great disservice. How about THAT??? I wonder how you could make THAT sound dishonest?

nevermind, you'd find a way.

Postby Guest » Sun Oct 09, 2005 7:07 pm

Trick of the trade for fund advisers bears scrutiny


Tuesday, October 4, 2005 Page B21

Under the guise of helping clients, investment advisers and mutual fund companies have devised a neat little trick for helping themselves.
Pay attention if you bought funds with a deferred sales charge, or DSC, because you may have had this happen in your account. It's common enough to have prompted the regulators at the Mutual Fund Dealers Association of Canada (MFDA) to issue a notice to advisers reminding them about their obligations to clients.

DSC funds are losing popularity, but they still account for a lot of fund sales because they enable you to avoid an upfront sales commission. Instead, you only pay if you redeem your investment in the six or seven years after you buy. What can be done about this potentially expensive limitation on your flexibility to change funds?

The fund industry's solution is to allow 10 per cent of your holdings in a DSC fund to be taken out each year without penalty. In a process that is starting to become automated, the money is then moved into a front-end load version of the same fund, with the upfront sales commission waived so that there is no cost involved.

The MFDA's concern is that these switches are being done without investors understanding the process or consenting, which might on the surface seem like a minor thing. After all, investors are getting out of their restrictive DSC funds and into front-load funds, which can be redeemed cost-free at any time, short-term trading fees aside.

The controversy comes from the fact that DSC conversions allow advisers to make more money in fees off a client's account while doing nothing extra to warrant the pay increase. Fund companies benefit here as well in that they've got a nice incentive for advisers to keep client money in the same funds once the DSC schedule is up, rather than moving to a different fund company.

Where clients provide their consent, those 10-per-cent annual DSC conversions are defensible. What's much harder to justify is a different switching scheme that has the same ultimate result -- more money for advisers.

Here, the switches involve money held in DSC funds for a long enough period that redemption fees no longer apply. At this point, a DSC fund is not different from a front-load fund in that clients have total freedom to move their money. Instead of just letting these DSC fund holdings alone, though, advisers are switching them into front-load versions of the same fund.

Some fund companies offer a lower management expense ratio on front-load funds, so in a few cases clients might gain from having their DSC money switched. But the true beneficiaries here are advisers -- again, they squeeze out a little more income for themselves and their firms.

To understand how this works, you have to know the differences between DSC and front-load funds from the adviser's point of view. Front-load funds bring in an upfront sales commission ranging from zero to 2 per cent, while DSC funds generate a fat commission of up to 5 per cent that advisers share with their firm.

Front-load funds also compensate advisers for client service by paying so-called trailer fees of 0.5 to 1 per cent a year in most cases. Because they offer a big commission at the beginning, DSC funds pay about half the trailers that front-load funds do. Here, you see how an adviser gets the best of both worlds with a DSC conversion. There's the upfront commission of up to 5 per cent and, after the conversion, there's the 1-per-cent trailer fee.

It's important to note that investors don't pay anything extra for these conversions. The MFDA says it's still possible for investors to be hurt through DSC conversions, however. For one thing, it's possible that a switch from a DSC fund to a front-load fund could be considered a sale of an investment, which means taxes would apply in non-registered accounts. Some fund companies have obtained rulings saying these conversions are not taxable events, but the MFDA says there's been no definitive word.

The real issue here isn't potential tax liabilities, though. Rather, it's the idea of an adviser sneaking around behind a client's back, with the collusion of the fund industry.

To prevent this, the MFDA wants advisers to tell clients all about DSC conversions, including any extra remuneration and tax implications, and then get a signature to indicate consent. There's no specific regulation saying this has to be done, but it is considered to be part of an adviser's duty to deal with clients in a fair, honest and clear way.

Ideally, investors who own DSC funds will have a chat with their advisers about conversions into front-load funds. Most investors will sign off on the move without another thought, even though there's an argument that says a pay increase for the adviser should be earned through enhanced service.

As for advisers who don't disclose their DSC conversions, it's hard not to see them as commissioned salespeople working primarily for themselves rather than clients.

Postby admin » Tue Sep 13, 2005 8:24 am

Canadians tired of high fees, lack of transparency in investment industry, survey finds

Sep 8, 2005 - Canada Newswire


Investors seeking low fees, transparent pricing, unbiased advisors

TORONTO, Sept. 8 /CNW/ - Canadian investors believe they are paying too much in fees to those who manage their money, and many find the complex fee structures of the investment industry confusing, according to a new survey by Decima Research.

The survey, commissioned by Stratos Wealth Management (Stratos), a division of MD Management Limited, reveals a troubling picture of frustration and dissatisfaction among Canadian investors when it comes to understanding and receiving value for the fees they pay for investment products and services. Stratos is a new business venture from the MD Financial Group, one of Canada's largest independent financial services organizations.

The survey also reveals that while many feel the investment industry lacks clarity and transparency in disclosing the fees investors pay, many have little or no idea what they pay - leaving a large proportion of investors in the dark when it comes to their personal financial management.

"It's clear that investors are dissatisfied with the fees they pay - and those who aren't should be, given the negative effect high fees have on investment returns," says Sandy Wilson, chief operating officer for CMA Holdings, the parent company of both MD Management and Stratos Wealth Management. "Canadians are looking for clear, competitive and transparent pricing - with no hidden fees."

Here are some key findings of the survey:

Investors tired of high fees, low transparency

- 48% of Canadian investors believe they are paying too much in fees, compared with just 40% who are comfortable with the fees they pay. A further 12% don't know one way or the other. Of those who offered an opinion, therefore, 55% believe they are paying too much.

- A surprising number of investors - 43% - believe that the investment industry lacks clarity and transparency in disclosing the fees investors pay.

Investors in the dark

- It seems that the information provided by investment firms is not doing the job. 44% have only "a vague idea" or "no idea" of the fees they pay on the management, purchase and sale of investments by their fund managers, securities dealers or investment advisors.

- Of those who do know what they are paying, 43% report paying 3% or more of their total investment portfolio in fees. Of that number, an incredible 6% claim they pay more than 10% in fees. This contrasts with data from Investor Economics, which show that, on average, Canadians pay between 2.2% and 2.8% of their portfolios in fees(x).

- Individual financial advisors seem to get a passing grade: 67% agree that their advisor or investment company has taken the time to provide information on fees. Still, almost one-third (31%) disagree, notwithstanding regulatory efforts to improve disclosure of fees.

Stratos Wealth Management is modeled on its highly successful parent company, MD Management Limited, part of the MD Financial Group, which manages more than $19 billion in assets. The company plans to leverage this experience by providing wealth management to all busy professionals seeking more customized, comprehensive and cost-effective services.

Stratos is based on a simple idea: offering quality investment products and ongoing financial advice and service - all for a low fee. The new company offers one other point of differentiation: its unbiased financial advisors are measured and rewarded based on client satisfaction - not sales commissions.

About the survey

This telephone survey was conducted with 376 Canadian investors between the ages of 25 and 64 between August 18 and August 21, 2005. It was conducted by Decima Research Inc., on behalf of Stratos Wealth Management. Results to the survey can be considered accurate to within plus or minus 3.1 percent, 19 times out of 20.

About Stratos Wealth Management (

Based in Toronto, Stratos Wealth Management is a division of MD Management Limited, one of Canada's largest and most respected independent investment companies. With more than $19 billion in assets under management, MD Management has been serving members of the Canadian medical profession and their families for more than 35 years.

About MD Financial Group

MD Financial Group(TM), refers to various CMA Holdings Incorporated companies offering financial planning through MD Management Limited, mutual funds by MD Funds Management Inc. and MD Private Trust Company, discretionary investment counselling and portfolio management services through MD Private Investment Management Inc., executor and trustee services through MD Private Trust Company, banking referral services in collaboration and through National Bank and insurance products by MD Life Insurance Company and Lancet Insurance Agency Limited.

(x) For Canadian industry wrap products, "The Fee-Based Report," Investor Economics, Winter 2005, p. 87.
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