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Whenever the topic of compliance, or the “advice process”, comes up most advisers see themselves like this:
Everyone is throwing everything at you with the sole intention of destroying you, right?
As a consequence, compliance is largely considered a burden. As is usually the way of these things a substantial body of documentation has blossomed over the years which is now considered the “right way” of being compliant when it comes to delivering advice. However that should be challenged.
Just because a methodology has become the accepted norm it does not automatically translate into that being the best way of doing things.
Or to put it another way: common practice is not the same as best practice. A lot of what we see as accepted standards are accepted only because they are the most common standards.
Compliant advice delivery standards are usually a drag for everyone involved – including clients – given the accepted wisdom requires a bunch of stuff being put into writing that nobody involved in the process actually is terribly interested in. The regulators get blamed for this of course, however if we are honest the regulators have more often than not simply approved those processes which have become most common in the industry and decided they are a good starting point for the rest of the industry. But then the institutions and the lawyers get involved. That’s when the gap widens between what the customers value; what advisers understand that actually matters; and what the regulators will eventually approve of as “evidence of good process”.
But generally (in my experience anyway) the regulators are not terribly interested in taking shots at good advisers. They are definitely on the hunt for the bad guys, but they aren’t trying to shoot down the good ones. They just need a methodology which they can use to check every so often to be sure who the good ones are.
The conflict is that consumers crave convenience and simplicity more than ever, and technology introduces a multitude of different ways of engaging rapidly and evidencing that engagement. It is a dynamic time…and too dynamic for the static processes of getting 8-10 signatures on 8-10 pieces of paper to remain relevant for terribly long.
So our thinking should move on from that and we should challenge the accepted wisdom. Surely we should encourage innovation in best practice process, and if so then I think that the regulators in this country at least have got something very right in focusing upon the process “achieving good client outcomes”, and then leaving it to the market to determine how they will do that and evidence it.
Bearing that in mind we then need to turn our thinking back to the client engagement and begin our thinking from the perspective of what outcomes are good. The first of those, simply because it is generally top of mind for clients, is to be able to get on with the job they want done quickly. Therefore our process should not in itself be a barrier to encouraging engagement. Most clients just want to get on with making their investments, or getting their tax problem sorted, or putting the damned insurance in place! “Just get it done already” is the prevailing attitude of most clients, right? So putting up a wall of paperwork and wet signatures beforehand is a poor customer experience I’d suggest.
But then there is the second element to consider: it is only true that nobody cares about the process or the paperwork when everyone is content.
As soon as there is an expression of dissatisfaction by a client where they expected (or still expect) a different outcome then the process definitely matters. This is where the legal perspective of having an abundance of paper-based documents produces some value. I say some value because it is arguable that merely have a large body of evidence is what matters. Amongst the large body of evidence produced by todays compliant advice process what is it we are actually looking for which is of value though? Just having a lot of forms with signatures of client consent is not necessarily evidence of having done a good job. One of the problems with all those signatures is that while they prove “presence” (as in “the client was actually there”), they do not prove comprehension on the part of the client, or even suitability of the advice.
So if we step back from the existing thinking about what “good process” looks like and think about what the over-arching objectives are, they would have to be ensuring that the advice is suitable for the client, and ensuring that the client understands and agrees with it.
That means there are 2 critical points of exposure for an adviser. Ensuring that these are covered adequately requires a 3rd key component. So when you get right down to it these three principles are actually the 3 things that matter most when it comes to creating a great advice process.
1. The clients interests are paramount
2. Recommended actions are suitable.
3. You can evidence these first 2 points.
It is inevitable that in the event of a complaint the fiduciary aspect of the relationship will be challenged, as invariably every complaint there will contain a perception that a poor outcome was driven by conflicted advice. Even those who are selling time and expertise by the hour will be challenged at time of complaint….”the plan was so big and cumbersome because you were trying to pad up fees“….”you made it more complicated than it needed to be so you could charge more – and that is why it didn’t work!”
Understanding that a dissatisfied client will challenge potential adviser conflicts virtually every time, and understanding also that in the real world virtually every single piece of advice given involves compromise on the part of the client, the way to ensure there is an ironclad link between “placing the clients interests first” and “ensuring suitability” is to ensure the clients priorities and compromises are captured, and kept. Professionals generally have no problem providing comprehensive and detailed recommendations – but clients usually have a problem with either paying for all the solutions to be put in place, or fully doing the tasks required to implement the recommendations. So the advice – or recommendations – are usually compromised in some fashion by clients.
THAT is where point 3 comes in….being able to evidence that there was compromise, and whose decision it was to make that compromise.
Which brings us to the question of what papeerwork matters? To most clients most of the time disclosure doesn’t matter. Written plans don’t matter much mostly. Most of the advice process we work with doesn’t actually matter much to most clients most of the time, because clients deal with someone they trust.
Having said all that, of course we have to comply with the rules of the road when driving, and of course we have to comply with the rules of engagement when advising. While grappling with the rules of engagement and making sure you are compliant remember though that the absolutely essential parts of that engagement process are being able to demonstrate later that you placed the clients interests first, and that your advice was suitable, especially in light of any priorities or compromises introduced by the client. Frankly it shouldn’t matter whether you evidence this with a 40 page report or a 40 minute video recording of the entire recommendation discussion with the client. The format of the evidence should not matter to regulators – it wouldn’t really matter inside a courtroom I would venture to suggest. Evidence is evidence, provided it meets evidentiary rules. There is actually a law (in this country anyway) which establishes what constitutes “evidence”…so if a form of evidence is good enough t meet the High Court’s requirements then I’d suggest that it will be good enough for industry regulatory bodies and disputes schemes.
Evidence of suitability, driven by the avoidance of conflict and matching clients needs with recommended actions, however you capture and keep it, is really what it all comes down to. Don’t be distracted by other people’s perceptions of “how” you should do that. Just make sure you do it in a way that fits with how your customers wish to engage.