During a routine webinar this week discussing its operations, CFP Board CEO Kevin Keller read aloud a question from a CFP, who asked, "Has the CFP board put the fee-only controversy behind it?"
"I don't know whether we have put it behind us or not," CFP Board Chairman Ray Ferrara answered, adding: "I think sometimes the profession is concerned about the wrong f-word. We really shouldn't be talking about fees, we should be talking about fiduciary. If you are talking about fees with all the proper disclosures, then compensation is really not an issue."
His comments echoed an opinion expressed last month by well-known CFP Rick Kahler of Rapid City, S.D., in a Financial Planning article in which he called for the debate over the use of the term fee-only to give way to a broader one over the definition of a fiduciary.
As it turns out, Kahler's certification hangs in the balance. He stands to lose it unless he dissolves his ownership of a stake in his family-run real estate company that takes commissions, which puts him in violation of the board's use of the term fee-only to advertise his practice.
"I totally agree with Ray," Kahler said. "I would jump for joy if the CFP Board were to enforce a fiduciary standard."
The board's website has this definition of fiduciary: One who acts in utmost good faith, in a manner he or she reasonably believes to be in the best interest of the client.
However, the board, which has indicated it will work with him on the issue, has provided conflicting and confusing direction, Kahler said.
"I've asked members of [the board's] staff to answer the question, 'What constitutes a fiduciary?' " he says. "He said, 'The extent of our enforcement of fiduciary is full disclosure of fees.' I don't believe that that is the definition of fiduciary. So my question to the CFP staffer was, 'Why don't you enforce the fiduciary standard? Because I see people coming in my door all the time with high commissions, high fees sold to them by a CFP."
Kahler says he shared with the board an instance in which he took a substantial fee from an insurance company and essentially passed it on to the client by not charging the client any planning fees for three years.
"I do believe there are instances where a financial planner, to satisfy the interests of fee-only, actually works in the disinterest of the client," Kahler said.
Dick Wagner, former president of one of the precursor organizations to the FPA, the Institute of CFPs, said he agrees with Ferrara's f-word comment. At one point in the webinar, a question from Wagner was read aloud; he asked, "Why is the CFP Board having trouble getting behind a uniform standard of fiduciary care?"
The board's chairman for 2015, Richard Rojeck, replied, "The board is strongly supportive of applying a unified fiduciary standard for those who provide personalized investment advice."
That statement sounds confusing to Wagner and others because it indicates that the standard doesn't apply to those planners not providing personalized advice.
Wagner is referring the board's Rules of Conduct, in which the first and second sentences in one paragraph (section 1.4) seem contradictory although the board says they are not: "A certificant shall at all times place the interest of the client ahead of his or her own. When the certificant provides financial planning or material elements of financial planning, the certificant owes to the client the duty of care of a fiduciary as defined by [the] CFP Board."
The second sentence indicates that CFPs may not act as fiduciaries when they are not doing financial planning, but only doing commission sales.
Keller addressed the issue in a past commentary for Financial Planning in which he wrote in November 2012: "a CFP professional is not subject to a fiduciary standard at all times for all purposes."
But planners like Kahler and Wagner say the distinction is confusing.
"It appears the CFP Board is splitting hairs in their two definitions and it's confusing at best," Kahler says, offering an example of one such conversation with a staffer. "They desperately don't want to hold a CFP to a 24-7 fiduciary duty, as to do so would mean they would lose a significant portion of their membership who are commission sales people with inherent conflict of interests. I am resigned to the fact that the CFP Board will cater to its constituency, which represents the greatest source of income to them, which is Wall Street." The CFP Board did not respond to a request for comment.
Although he has yet to hear from the board for final guidance on his case, Kahler says he has begun taking the CFP designation off the agendas for his coming speaking engagements. Instead, he refers to his his masters degree in financial planning from the American College and to his ChFC.
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