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Michael Shaw, managing director of professional standards and legal at the CFP Board, otherwise known as its head of enforcement, has several words of advice for certified financial planners who are accused of doing just a little bit more than the law will allow: Come clean and cooperate with an investigation, and you might get to keep it.
The investigation starts with a letter listing CFP rule violations, and this is where many errant advisors lose their designations off the bat. An advisor has 20 days to respond once the CFP board sends that letter. “That’s if a certificant wants a hearing,” said Shaw. “If they’re throwing in the towel, they won’t respond,” which happens a surprising amount of the time, he said. “It’s not unusual to see a large number of certificants fail to provide any answer. They just decide they’re not willing to fight it.”
There are 62,000 advisors with CFPs, and in any given year the CFP Board opens between 900 and 1,200 investigations, about 90 to 110 of which go to a hearing. “It really is a small minority that doesn’t follow the CFP’s standards of conduct,” Shaw said.
Why advisors fall off the wagon is difficult to say. The rules and regulations are certainly clear; Shaw said his team spends an equal amount of time building educational content as it does pursuing wrongdoers.
One thing is clear, though: The past couple of years have brought an increased frequency of bankruptcies, a CFP no-no. “The concern is that if a CFP cannot manage his or her own finances, how can they provide advice to others?” Shaw said. He conceded, however, that it hasn’t been an easy market for anyone, and “as the economy improves, I’m sure we’ll see that number [of bankruptcies] decline.”
Ponzi schemes are among the most egregious cases that come before Shaw, and there have been “a few” this year. Various forms of fraud are also common among transgressors, of which unauthorized transactions and misappropriation of funds are the most serious. (Shaw doesn’t expect to have to expel any more
Not every transgression relies in a public sanction; some minor offenses are handled in-house, such as failure to adequately communicate with clients, not returning client phone calls, failing to follow up a meeting with a letter summarizing what was discussed and poor record-keeping. These actions—or rather inactions—tend to result in a private rebuke, and are normally triggered by a client complaint.
Anything more serious than that goes before the CFP Board’s Disciplinary and Ethics Commission, assuming the CFP under suspicion has responded to the letter of complaint within 20 days. Those who don’t respond are dealt with by Shaw’s team, and frequently have their right to use the designation revoked. Only seven of the advisors sanctioned by the CFP Board on Sept. 28 responded to their letters; most are now out of the club.
The commission is made up of nine members, seven of them CFPs and two who are “public representatives.” One current committee member works for AARP, and the other is an attorney specializing in elder law, so these aren’t people off the street. Committee members serve four-year terms, which are staggered. They meet three times a year to preside over cases, supplemented by three more volunteers and split into panels of three. Over two days, they rule on each of that session’s cases. None of the committee members are paid for their service, and their findings are subject to appeal before a committee of the board of directors if the advisor feels the sentence is unfair.
Most advisors are sanctioned for poor conduct. Shaw said that each session may see 30 cases, only two or three of which are dismissed for insufficient evidence, and even then the case may be dismissed “with caution,” which means the panelists suspect misconduct but lack sufficient proof.
Outside of client testimonials, the CFP board uses third-party sources to build cases. Its staff periodically checks FINRA’s Central Registration Depositary and searches the Internet in order to compare any news story about advisor misconduct against its member list.
Shaw said advisors who are accused of misconduct should fully cooperate if they want to maintain their designation. “Provide us with the documents we need—it could all just be an honest mistake, so help us follow due process and we’ll see what the outcome is.”
