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LPL Financial’s DOL-Rule Memo to Reps Implies Deeper Message: Become an RIA or Stand Down on Giving Rollover Advice


July 5, 2017 – – The ‘deep-pocketed’ broker-dealer puts its Series-7 brokers on notice to forget about suggesting a rollover even as it gives its hybrid RIAs a strict protocol to stay out of trouble.

LPL Financial is taking steps to avoid accusations of placing big DOL pitfalls in the path of its brokers — but in doing so could also be creating two categories under its roof: haves and have-nots.

The Fort Mill, S.C.-based firm last week sent a memo to its 14,000 advisors with a bare-bones directive regarding the Labor Department’s dictates about brokers recommending 401(k) rollovers to clients. The move comes as the IBD announces a massive structural change that brings its 401(k) business more under the purvue of its main retail business. See: LPL Financial lets go of David Reich to pull its crucial $135-billion 401(k) division into a central service and branding sphere.

The memo arrived in the wake of the DOL fiduciary rule’s June 9 start date. The full implementation date is Jan. 1, 2018 and the Trump administration is still reviewing the rule. See: The CFP Board’s thunderbolt fiduciary play should proceed and likely will.

‘Cannot recommend’

The memo, which was originally reported by InvestmentNews, can be summed up in seven words, according to the company.

“On the brokerage side, they cannot recommend,” says LPL spokesman Jeffrey Mochal in response to an RIABiz query.

LPL declined to say what percentage of its brokers also register as RIAs. “I will say is that a great number of our advisors do both brokerage and advisory business,” Mochal adds.

For brokers, it’s an “education-only policy with respect to rollovers,” the memo reads, adding that brokers can “accept investor-directed rollovers” — namely rollovers that investors ask for unbidden after being educated in rollover class. See: Why luring 401(k) assets to IRA rollovers in a post-DOL-rule world remains child’s play, which keeps $7.6 trillion in the IRA game and growing.

DOL dualism

Such a stark prohibition on directly imploring clients, or client prospects, to move assets into LPL IRA accounts may be a setback for brokers who now have one fewer arrow in their quiver for winning new assets.

The dualism involved with rapping brokers’ knuckles — and RIAs’ not so much — could also leave the transactional salespeople feeling slighted, says Ryan Shanks, president of Finetooth Consulting.

“It does feel like the RIAs are getting access to something the registered reps are not, but there is a choice every single advisor has in terms of how they provide advice to their clients and how they charge for that advice,” Shanks says. See: Why exactly DOL’s latest action is so shocking to so many brokers — and even ERISA lawyers — despite years of warnings.

He adds that the seeming favoritism toward RIAs is not unmerited: “The truth is that the fee-based advisors are more often in total alignment with their client’s best interests, which is what’s allowing for the segmented regulatory restrictions. A large percentage of the FA population has not evolved to view it that way.”

The newly DOL-installed flaming hoops are mostly worth the trouble to jump through — though they might singe the hybrid advisor, says Jim O’Shaugnessy, managing partner of Sheridan Road Financial, which manages $12 billion as an office of supervisory jurisdiction out of Chicago.

“When are we working with someone as an RIA we can offer advice, but the rules change when we are working with someone as part of our broker-dealer business. LPL will allow us to give recommendations but you’ve got to make sure you’re fully working in the RIA with compliance, supervision and that product recommendations are all under that umbrella.” See: LPL restores OSJ rights to $35-billion AUA super-rep that just kept growing during its three-year ordeal.

New rules

O’Shaughnessy says a rollover from a 401(k) plan to IRA is technically two repeal-and-replace steps. First is the decision to roll out of an employer-sponsored plan; second is the decision to roll into an IRA.

To get the green light from LPL to provide rollover advice, its hybrid advisors must submit an attestation, which is a declaration to LPL, explaining the RIA has policies and procedures in place to meet the DOL rule.

The RIA must also comply with the DOL rule and ensure its rollover advice is available only in its hybrid RIA and not through its commission or broker-dealer business. The hybrid RIA must also make disclosures available to investors. In response to these requirements, LPL will provide acknowledgment. See: Why luring 401(k) assets to IRA rollovers in a post-DOL-rule world remains child’s play, which keeps $7.6 trillion in the IRA game and growing.

Mochal says that O’Shaughnessy’s explanation is correct as far as it goes but adds that advice needs to be preceded by a more general education process to show that the investor decided to take the advice as an informed person.

“If you independently decide that you would like to roll your 401(k) into an IRA, at that point your advisor could make a recommendation to you on how best to do that. As part of that recommendation, she could recommend her own services to make that happen; assuming she is in advisory of course, and not brokerage. At that point, your advisor would be acting as a fiduciary and would need to follow the right process to ensure regulatory compliance.”

Degree in self-direction

Abby Salameh, chief marketing officer for Private Advisor Group, which manages $22 billion of assets from Morristown, N.J., says her OSJ will still make rollover recommendations but raise its game with new software to provide better transparency and to document having stayed on the straight and narrow with DOL.

She explains that “there’s always been a policy that you can’t make a recommendation to clients and it’s always been education only.” But Private Advisor Group, which has its own RIA, can provide advice once the advisors explain the education component and the client has made the decision.

“If an advisor is part of a group like ours, then we can implement technology to show that we have reasonable policies and procedures in place [allowing] our advisors to make rollover recommendations,” she says.

In a client meeting, an advisor would be able to provide clients with documentation showing them how much they pay for their current 401(k) plan, how much it would cost to roll the plan over and additional costs for other options. See: Using DOL as cover, Bank of America cuts the Merrill Lynch bull as it adds a robo, stops paying brokers to stick around and kicks John Thiel upstairs.

“We want to use technology to showcase transparency to that clients can see what the fees will be around making any decision and what it’ll cost from an economic standpoint to make any change,” Salameh says.

‘Deepest pockets’

LPL is wise to recognize what a large legal target it has on its back and to obtain and disseminate detailed and explicit do’s and don’ts of DOL compliance, according to Jason Roberts, attorney and CEO of Pension Resource Institute LLC. He says it is likely that even if an independent RIA firm gets hit with a lawsuit, LPL could be named and that may be why LPL is trying to put as much distance as it can from itself and the RIA giving the advice.

“The claimants’ counsel will go after the deepest pockets,” Roberts says. “Supervising firms like LPL are in a unique position where they may not get a nickel of revenue from pure advisory firms, but they have to fight their way out of lawsuits and show they had no responsibility for that advisor.”

Not that LPL’s crackdown on compliance doesn’t have costs for investors and RIAs, too.

“To a client, it’ll be more paperwork, but it’s meant to make it clear on the structure that we’re being engaged in,” O’Shaughnessy says. See: Alexander Acosta’s DOL rule letter to WSJ contains double message and one long-term objective: ‘Gut’ it.

O’Shaughnessy’s firm works with most clients as fiduciaries offering fee-only advice. He doubts he can recommend the purchase of an annuity because that’s a commission product and would fall under LPL’s broker-dealer and not O’Shaughnessy’s RIA.

“If we do a holistic review and decide to make a recommendation like an annuity, I honestly don’t understand how the procedures would fall if we decide to make a recommendation to something that would fall under the broker-dealer umbrella,” O’Shaughnessy says. See: As variable annuities face ‘existential crisis,’ LPL’s Casady is latest to warn of end to commission-sold VAs in retirement plans.

All fiduciaries

Despite the possibility of chilling sales on its most profitable products, LPL is indeed wise to parse the regulatory duties of its brokers and hybrids to avoid lawsuits, says Fred Reish, an attorney in the Los Angeles office of Drinker Biddle & Reath LLP. If the broker is a representative of LPL and if a recommendation was made, “both the adviser and LPL would be fiduciaries for that purpose,” he says.

“On the other hand, when the adviser is acting on behalf of the independent RIA, the RIA firm would be the fiduciary with the adviser. So, from a fiduciary regulation perspective, LPL would not be involved in that case.”

LPL is not alone in imposing this kind of discipline surrounding advice, Roberts says. Of the 50 firms he works with, Roberts says all their advisors can give advice — as long as they follow a long list of rules. See: ‘Poof, it’s gone!’ DOL quietly strips two heavy lifts from the fiduciary rule as it makes delay official.

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