Broker-dealers can do more to avoid conflicts: FINRA

The Financial Industry Regulatory Authority issued a report this week aimed at helping broker-dealers better avoid conflicts of interest. The report never mentions the fiduciary standard but all of the elements of complying with it are there.

"While many firms have made progress in improving the way they manage conflicts, our review reveals that firms should do more," FINRA Chairman and CEO Richard G. Ketchum said in a statement.

FINRA, a private organization that acts as a self-regulatory body overseeing broker-dealers, said it observed a number of effective practices at various firms it studied that others in the business should consider following.

Among them: setting of a “tone from the top” and the adoption a code of conduct that, among other items, clearly prohibits investment recommendations that favor proprietary products.

“Leadership that single-mindedly drives the distribution of proprietary products may undermine the effectiveness of new product review processes intended to protect customer interests,” it said in its report.

At another point in its report, it said that a firm’s code establishes an “essential starting point — a yardstick against which the behavior of employees may be measured. Of course, to be meaningful, the rhetoric of a code should be supported by firm policies and procedures and implementation by firm leadership.”

It said codes of conduct should include "best-interest-of-the-customer" standards that apply to brokers' personalized recommendations to retail customers in order "to maintain and increase investor trust."

Last week, an advisory group at the Securities and Exchange Commission urged the agency to move ahead with a rule that would impose a uniform fiduciary standard for retail investment advice, a move that broker-dealers have been fighting.

FINRA launched its conflicts initiative in July 2012 to review broker-dealers’ approaches to the issue and to identify effective practices. It used firms’ responses to FINRA’s conflicts review letter, in-person meetings and follow-up compensation questionnaires to develop its Report on Conflicts of Interest to come up with its guidance for broker-dealers.

It focused its research on managing conflicts in three “critical” areas: enterprise-level frameworks to identify and manage conflicts of interest; approaches to handling conflicts of interest in manufacturing and distributing new financial products; and approaches to compensating associated persons, particularly those acting as brokers for private clients.

It found that many conflicts of interest exist in the financial services industry and that there is no “one-size-fits-all” approach that can help firms manage conflicts.

“The conflicts management framework for a small firm almost certainly will be markedly different than that for a large firm; but some of the basic conflicts may be the same. All firms engaged in the distribution of securities should, for example, consider whether the incentives that stem from their compensation structures and product offering interfere with their suitability requirements,” the report said.

“Do these structures create incentives for registered representatives to engage in unsuitable or excessive trading? If those incentives exist, how do firms structure their supervisory and other mechanisms to mitigate those incentives?”

FINRA hopes that its guidance will help firms analyze the different conflicts they face in their business and implement a system to “identify, manage, mitigate or improve the mitigation of those conflicts where necessary.”

Firms also should consider the impacts their actions have on their customers, it said. “This will help firms avoid finding themselves out of step with evolving ethical norms and expectations,” FINRA said.

“The securities industry as a whole has played a tremendously valuable role in the development of the U.S. markets and economy. While they will continue to do so, the securities industry must strengthen the investing public’s trust and confidence. Addressing conflicts of interest more effectively is one important step in that direction,” the organization added.

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