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These Terms of Use ("Terms of Use") are made between the undersigned user ("you") and Lord, Abbett & Co. ("we" or "us"). They become effective on the date that you electronically execute these Terms of Use ("Effective Date").

A. You are a successful financial consultant that markets securities, including the Lord Abbett Family of Funds;

B. We have developed the Lord Abbett Intelligence System (the "Intelligence System"), a state of the art information resource that we make available to a limited community of broker/dealers through the Internet at a secure Web site (the "LAIS Site"); and

C. We wish to provide access to the Intelligence System to you as an information tool responsive to the demands of your successful business pursuant to these Terms of Use. Accordingly, you and we, intending to be legally bound, hereby agree as follows:]

1. Overview. · Scope. These Terms of Use (which we may amend from time to time) govern your use of the Intelligence System. · Revisions; Changes. We may amend these Terms of Use at any time by posting amended Terms of Use ("Amended Terms of Use") on the LAIS Site. Any Amended Terms of Use will become effective immediately upon posting. Your use of the Intelligence System after any Amended Terms of Use become effective will be deemed to constitute your acceptance of those Amended Terms of Use.We may modify or discontinue the Intelligence System at any time, temporarily or permanently, with or without notice to you. Purpose of the Intelligence System. The Intelligence System is intended to be an information resource that you may use to contribute to your business research. The Intelligence System is for broker/dealer use only; it is not to be used with the public in oral, written or electronic form. The information on the Intelligence System and LAIS Site is for your information only and is neither the tax, legal or investment advice of Lord Abbett or its third-party sources nor their recommendation to purchase or sell any security.

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Practice Management

Advisors should begin the spadework of assessing how the rules, likely to be finalized later this year, will affect their practices.

This Practice Management article is intended for financial advisors only (registered representatives of broker/dealers or associated persons of Registered Investment Advisors).
 

Even as a controversial fiduciary proposal is in the final stages of the regulatory process, many advisors aren't bothering to reassess their compliance framework or lay the groundwork for the changes they will have to make in their practices when the Department of Labor's rule becomes the law of the land.

That's the assessment of Jason Roberts, CEO of the Pension Resource Institute and a partner at the Retirement Law Group, who urges advisors to begin assessing how their work with retirement plans and clients will be affected by the DoL's rule, which would impose new fiduciary responsibilities on brokers and advisors working in that space.

"We're hearing a whole lot of people saying, 'Oh, we're just going to wait and see. We don't want to take any action until we see the final rule,'" Roberts said during a webcast of a Practising Law Institute conference this week. "And what I would say is we're pretty comfortable about 75% of what's in the proposal will stick and will be almost republished verbatim, if you will."

Roberts allows that some elements of the DoL's rule could change from the first draft published last year. He is hopeful, for instance, that advisors will be able to present clients a sample asset-allocation model based on their risk profile without triggering the fiduciary obligations. Under the initial proposal, offering that kind of basic investor education would require that advisors act as fiduciaries, marking a dramatic departure from the current regulatory framework.

"It's not until you recommend specific securities under today's rules that you cross that line," he says.

"The Next ACA"
But the core provisions of the DoL's framework are unlikely to change, which will pose advisors with a set of decisions to make regarding how to structure their practices in what Roberts sees as a seismic overhaul of the retirement advice space. He recalls a recent conversation with a colleague in Washington, who referred to the fiduciary proposal as "the next Affordable Care Act," explaining that the changes to ERISA—the 1974 law that authorizes the Labor Department to regulate certain kinds of retirement advice—will likely come with years of advisory opinions and interpretive bulletins as firms struggle to comply with the new regulatory framework.

"It's really going to be significant," Roberts says. "And I know a lot of firms have deep resources internally on securities legal and regulatory matters. When we cross over then and apply those same skills or those same requirements to ERISA and the tax code, a lot of times those internal resources start to shrink."

Under the proposed rule, advisors would still be able to offer conflicted advice—commission-based transactions, for instance—but to do so they would have to enter into a contractual agreement committing themselves to act as fiduciaries and make recommendations in their clients' best interest. Some advisors have suggested to Roberts—and others have said in government forums—that the provisions of the so-called best-interest contract exemption are flatly unworkable and that they have no plans to incorporate it into their practices.

To take that approach, however, would be to shut the door to a vast market where clients are hungry for advice on some of the most basic aspects of planning for retirement, and Roberts suggests that advisors rethink their hardline approach.

"You are absolutely going to need this best-interest contract exemption to do a rollover under this standard," he says, urging advisors to begin the spadework of assessing how the rules, likely to be finalized later this year, will affect their practices. "We can look at impacted accounts, client types, do some inventory, identify potential migration strategies or mitigation strategies, and, obviously, before we start implementing much of this we'll want to go out and see what the final rule says."

Impacts
Ultimately, advisors at wirehouses and large regional broker/dealers will defer to their firms on how they will have to change the way they do business.

As for independents, particularly dually registered firms, Roberts sees the safest path to compliance in shifting rollovers to the advisory side of the business, and, indeed, suggests "quarantining" the brokerage wing of the practice, where conflicts of interest can appear more flagrant.

Advisors worried about the ramifications of the BIC exemption see as particularly ominous the provision granting aggrieved clients a private right of action, opening the door to litigation when an investment strategy recommended in good faith goes south. That raises the prospect that brokers will be "playing defense at every recommendation," fearful that the next market dive will land them in a courtroom, Roberts says.

"Good advisors—good firms—get sued when the market tanks. So imagine now, in the quiver of this claimant or plaintiff, is this contract that says you're going to adhere to the highest fiduciary standard of care...and that at each recommendation you benefited by, receiving additional compensation. I think that is unworkable—that scenario, that's the brokerage scenario," he says.

"What is workable is a robust advisory solution. It's not going to be for all clients, and we're going to have to find some workarounds for the others," Roberts says.

"At the end of the day, what are we having to defend here?" he asks. "We're having to defend that the recommendation...was in your best interest. What's one of the best ways to get a client to articulate their interest so we know if it's best? I would say financial plans, retirement income plans—something that is collaborative, that provides direction." 

—By Kenneth Corbin

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