“Scoping” Out Your Ethics with a Twist A Refreshing and Practical Ethics Program based on CFP Board Standards of Professional Conduct Compliance Checklist with a focus on the Scope of Engagement Presented by: Carol S. Craigie, CFP® CFP Board’s Code of Ethics and Professional Responsibility, Rules of Conduct, Financial Planning Practice Standards, Fitness Standards for Candidates and Registrants and Anonymous Case Histories are the property of CFP Board and may not be resold, republished or copied without the prior consent of CFP Board. Copyright © 2013 Certified Financial Planner Board of Standards, Inc. All rights reserved. Reproduced with permission. ©2014, College for Financial Planning, all rights reserved. Ethics Course Learning Objectives • Define elements of the fiduciary standard. • Determine when the fiduciary standard applies in a variety of financial planning contexts and scenarios. • Determine if a CFP® professional is providing financial planning services or material elements of financial planning services. • Explain CFP Board's compensation disclosure • requirements to clients and prospective clients Communicate any potential conflicts of interest to a client at the initiation of client engagement AND at recommendation. 2 Two-Hour Ethics Education In this class we will: • Examine the Standards of Professional Conduct Compliance Checklist with emphasis on disclosures and timing. • Review CFP Board case studies. • Review sample Scopes of Engagement and complete peer reviews. • Discuss additional disclosure requirements during planning process. • Examine the behavioral economic concepts that apply. 3 CFP Board Fiduciary Standard This definition of fiduciary applies when a CFP ® Professional or Professional Eligible for Reinstatement is engaged in FP or material elements of FP. “One who acts in utmost good faith, in a manner he or she reasonably believes to be in the best interest of the client.” When not engaged in FP , a baseline standards of care as outlined in Rules of Conduct 1.4 applies. (refer to checklist) 4 What’s wrong with this picture? Some actions that caused inquiries: • Did not disclose to the client that Respondent was only authorized to sell long-term care insurance policies for one company. Case 21547, Private Censure, Suitability, Conflict of Interest, Disclosure to Clients • Performed financial planning services for a client’s (“Client”) father (“Client’s Father”) without providing to the Client’s Father a written financial planning agreement and written disclosures and when he received the Client’s Father’s funds through a bank account controlled by Respondent. Case 19075, Revocation, Fiduciary Duty, Disclosures, Diligence, Suitability, Client’s best interest 5 What is violated here? • Failed to clarify his lack of involvement in recommending and endorsing a particular investment to his clients. Case 15982, Private Censure, Diligence, Disclosure to Clients, Professionalism • Failed to: (1) communicate with Husband and Wife appropriately regarding conflicts with representing both after he became aware of their potential divorce; and (2) appropriately respond to Wife’s inquiries and subsequent check processing by failing to inform her that Husband refused to consent to the sale of investments to cover a large check. Case 24706, Private Censure, Conflict of Interest, Disclosure, Client’s best interest, Diligence 6 What’s wrong here? • Did not notify a client (“Client”) that he would • not be preparing her tax returns, and did not follow up with the Client regarding her tax returns. Case 20942, Private Censure, Professionalism Did not inform the Client that she had unrealistic investment expectations. Case 16836, Private Censure, Dilligence, Professionalism • Did not perform a cash flow analysis regarding his client’s ability to pay the premiums for the insurance policies recommended. Case 23352, suspension, fiduciary duty, suitability • Failed to disclose outside business activities to his employer. Case 25939, Private Censure, Professionalism, Professional Discipline 7 Practical Application – Document this! 8 Twist: Exploring the Behavioral Economics of Ethics • The study of social, cognitive, and emotional • factors in understanding the economic decisions of individuals, and How implementing the steps in the compliance checklist makes it easier for clients to act 9 Read Section A 10 “Is You Is or Is You Ain’t” Delivering A Financial Plan? Actions and documentation depend on how this is answered! In both cases, you must make disclosures… the difference is: “Are they in written contract form?” Let’s examine the rules. 11 Material Elements of a Financial Planning Engagement CFP Board considers the circumstances involved, including: • the client’s understanding and • • • intent in engaging the CFP® professional, the degree to which multiple financial planning subject areas are involved, the comprehensiveness of data gathering, and the breadth and depth of recommendations. 12 Not Considered Financial Planning by CFP Board • • • • • • • Opening an account or completing an application Fact-finding to meet regulatory requirements for suitability such as “Know Your Customer” rules Solely providing brokerage and/or insurance products or services Engaging in an activity solely related to the sale of a specific product Acting as a mortgage broker without providing any other financial services Completing tax returns without providing any other financial services Teaching a financial class or continuing education program 13 What does this change? • You automatically ask for tax returns, • beneficiary designations, and investment statements. Your intention is to just open up an investment account. Halfway through your process, you realize the client has a more complex tax situation and estate issues than you thought and you are concerned about how you are titling the investment account. If you change from a non-planning engagement to a planning engagement, you must create a scope of engagement document and have the client sign! 14 Practice Standard 100-1: Defining the Scope of the Engagement Page 1, Section A: Rule 1.1: *The certificant and the prospective client or client shall mutually agree upon the services to be provided by the certificant. 1 2 3 *(CFP Board’s Standards of Professional Conduct, Certified Financial Planner Board of Standards Inc., 2009) 15 Rule 1.2: Written Agreement *If the certificant’s services include financial planning or material elements of financial planning, prior to entering into an agreement, the certificant shall provide written information or discuss with the prospective client or client the following: a. The obligations and responsibilities of each party under the agreement. b. Compensation that any party to the agreement or any legal affiliate to a party to the agreement will or could receive under the terms of the agreement. c. Terms under which the agreement permits the certificant to offer proprietary products. d. Terms under which the certificant will use other entities to meet any of the agreement’s obligations. If the certificant provides the above information in writing, the certificant shall encourage the prospective client or client to review the information and offer to answer any questions that the prospective client or client may have. Does your scope of engagement meet this requirement? *(CFP Board’s Standards of Professional Conduct, Certified Financial Planner Board of Standards Inc., 2009) 16 Rule 1.3: What the Agreement Specifies *If the services include financial planning or material elements of financial planning, the certificant or the certificant’s employer shall enter into a written agreement governing the financial planning services. The Agreement shall specify: a. The parties to the Agreement, b. The date of the Agreement and its duration, c. How and on what terms each party can terminate the Agreement, and d. The services to be provided as part of the Agreement. The Agreement may consist of multiple written documents. Form ADV or other disclosure documents, shall satisfy the requirements of this Rule. *(CFP Board’s Standards of Professional Conduct, Certified Financial Planner Board of Standards Inc., 2009) 17 Why a scope of engagement? • What’s your goal for scope of engagement? “This describes what I have committed to doing as a CFP ® professional when I work for you.” “I would like to review this with you to make sure we are on the same page and you have all the facts you need to make an informed decision about hiring me.” 18 Disclosures: Excuse or Use • Distrust is triggered when you say, “here’s the zillion • pages our lawyers make us use. I need you to sign it.” Trust is triggered when you say, “It’s really important that you understand where conflicts of interest may arise and how I get paid so you can make informed decisions. Let’s go through this document together to make sure it’s clear in case there are legal or financial terms with which you may not be familiar.” A tale of 2 salespeople: Which do you trust? 19 Behavioral Economics and Disclosures (ADV & Other) • Distrust of financial companies is at an all-time high in the United States; finance is now in the lowest three trusted industries.* • When distrust is triggered, it makes people doubt even simple statements like the sky is blue or the sun is yellow. • Distrust is triggered by unmet expectations, miscommunication, lack of information, and feeling “sold.” • Disclosures can disarm distrust. *2012 Edelman Trust Barometer Findings 20 Required Elements • • • • • • • • • • Clearly identifies WHO the agreement is with (parties of the agreement) Clearly identifies what services the client will receive Clearly identifies what services the client will NOT receive Clearly identifies the process the client should expect Clearly identifies what we expect from clients in the process Clearly identifies starting date and when the contract ends Clearly identifies now and what terms a party can terminate agreement Clearly discloses conflicts of interest Clearly identifies offering of proprietary products Clearly defines when other entities will meet obligations 21 Sample Scope of Engagement CFP Board sample includes: • types of services, • length of engagement and how it’s determined, • fee for services and when it is due, • what compensation is received from other sources, • expectations of client, • conflicts of interest, and • fiduciary standard statement. 22 Behavioral Economics and Scope of Engagement • Use Expectations Impact and Priming to help clients have the right expectations. • Scope of engagement is setting expectations and priming clients. What is your message? 23 CFP Board’s Services Descriptions Here are some sample descriptions: • Developing a summary of your current financial situation, including a net worth • • statement, cash flow summary, and insurance analysis. 1. Includes P&C? 1 2 Reviewing your current investment portfolio and developing an asset management strategy. 2. Includes 401(k)/real estate advice? 3 Developing a financial management strategy, including financial projections and analysis. 3. Business cash flow projection, detailed budgeting, how many years? How clear is your description? Would most clients understand? 24 Scope of Engagement: Priming Client Responsibilities Intention is the same and the message is similar, but priming is different. 25 Priming and Expectations Impact What is this scope of engagement priming? Good compliance, good ethics, and good business 26 Practical Steps: Review Your Scope of Engagement • Does it meet all the requirements? • What is being primed? • What expectations will clients have and can you • • consistently meet them? Is the process clearly defined so clients know their role? Is it an active or passive role? Does the process you are explaining match your business requirements for timing, ability to deliver, etc.? 27 Now let’s examine…. There are sample scopes of engagements available on the tables. You were asked to bring three copies of your form to share. Use the form and trade scopes of engagement and give feedback using the Assessment form. If no one brought theirs, please use the ones on the table. 28 Tips for Effective Agreements • Use easy to understand and specific language so you and • • • • clients know what you are offering. Incorporate a benefit statement. Test it with non-planners/non-clients using confirmation skills. Ask your clients to evaluate its clarity, benefits, and whether it accurately reflects what you deliver. Put it in a form where clients can initial the services they want. What benefit do you think you will receive from this process? What benefits will clients receive? 29 Sharing 30 Break 31 How Do You Determine the Client’s Understanding and Intent? 1 • Giving the client information is not enough to • • understand their understanding. These questions don’t work: o Do you understand? o Is that clear? o Do you agree? These are the types of questions that may get you the bobble head! 32 Avoid the Bobble Head Use Confirmation Skills to Get the Client to Talk! • “Just to make sure we are on the same page, tell me what you are expecting from this planning experience.” • “It’s easy to interpret words differently, so please help me out and tell me what you think this says.” • “Now that you’ve read the scope of engagement, can you tell me what you think will be most beneficial for you? Can you tell me any services that aren’t mentioned that you expected or were hoping were included?” Document this: Write down their answer with their words Behavioral Twist: The act of writing conveys the message that what they say is important! 33 Behavioral Economics, Contracts, and Disclosures • Both advisors and clients have an Illusion of Transparency, so we have to work hard at clear understanding and demonstrating trustworthiness. • Avoid Confirmation Bias by using confirmation skills. 34 Sec. B 1-3 35 Implementation Rules Rule 2.1: A certificant shall not communicate, directly or indirectly, to clients or prospective clients any false or misleading information directly or indirectly related to the certificant’s professional qualifications or services. A certificant shall not mislead any parties about the potential benefits of the certificant’s service. A certificant shall not fail to disclose or otherwise omit facts where that disclosure is necessary to avoid misleading clients. Rule 4.5: In addition to the requirements of Rule 1.4, a certificant shall make and/or implement only recommendations that are suitable for the client. 36 Next Critical Disclosure • What products and services need additional disclosure? 37 Sample Implementation Documentation 1. Separate the issue of who is providing a product from whether it’s a good idea. 2. Ask for decision of: YES NO DEFER EXPLORE 3. Initially, married couples don’t have to agree … get each opinion and finalize later. 4. Keep brief, but give enough details and benefits, if possible, with longer explanations in recommendations. 5. Define who, what, when, and where under action items and target date. 6. This becomes the roadmap for you and client. 38 Practice Standard 500-1: Agreeing on Implementation Responsibilities *The financial planning practitioner and the client shall mutually agree on the implementation responsibilities consistent with the scope of the engagement. The client is responsible for accepting or rejecting recommendations and for retaining and/or delegating implementation responsibilities. The financial planning practitioner and the client shall mutually agree on the services, if any, to be provided by the practitioner. The scope of the engagement, as originally defined , may need to be modified. The practitioner’s responsibilities may include, but are not limited to the following: • Identifying activities necessary for implementation; • Determining division of activities between the practitioner and the client; • Referring to other professionals; • Coordinating with other professionals; • Sharing of information as authorized; and • Selecting and securing products and/or services. If there are conflicts of interest, sources of compensation or material relationships with other professionals or advisers that have not been previously disclosed, such conflicts, sources or relationships shall be disclosed at this time. When referring the client to other professionals or advisers, the financial planning practitioner shall indicate the basis on which the practitioner believes the other professional or adviser may be qualified. If the practitioner is engaged by the client to provide only implementation activities, the scope of the engagement shall be mutually defined in accordance with Practice Standard 100-1. This scope may include such matters as the extent to which the practitioner will rely on information, analysis or recommendations provided by others. *(CFP Board’s Standards of Professional Conduct, Certified Financial Planner Board of Standards Inc., 2009) 39 Practice Standard 500-2: Selecting Products and Services *The financial planning practitioner shall select appropriate products and services that are consistent with the client’s goals, needs and priorities. The financial planning practitioner shall investigate products or services that reasonably address the client’s needs. The products or services selected to implement the recommendation(s) must be suitable to the client’s financial situation and consistent with the client’s goals, needs and priorities. The financial planning practitioner uses professional judgment in selecting the products and services that are in the client’s interest. Professional judgment incorporates both qualitative and quantitative information. Products and services selected by the practitioner may differ from those of other practitioners or advisers. More than one product or service may exist that can reasonably meet the client’s goals, needs and priorities. The practitioner shall make all disclosures required by applicable regulations. *(CFP Board’s Standards of Professional Conduct, Certified Financial Planner Board of Standards Inc., 2009) 40 Practice Standard 600-1: Defining Monitoring Responsibilities *The financial planning practitioner and client shall mutually define monitoring responsibilities. The purpose of this Practice Standard is to clarify the role, if any, of the practitioner in the monitoring process. By clarifying this responsibility, the client’s expectations are more likely to be in alignment with the level of monitoring services which the practitioner intends to provide. If engaged for monitoring services, the practitioner shall make a reasonable effort to define and communicate to the client those monitoring activities the practitioner is able and willing to provide. By explaining what is to be monitored, the frequency of monitoring and the communication method, the client is more likely to understand the monitoring service to be provided by the practitioner. The monitoring process may reveal the need to reinitiate steps of the financial planning process. The current scope of the engagement may need to be modified. *(CFP Board’s Standards of Professional Conduct, Certified Financial Planner Board of Standards Inc., 2009) 41 Behavioral Economics and Monitoring • Painting the picture of our future together starts a whole new set of priming and expectations. • Lack of vision of future together creates distrust. • Feelings of bait and switch if your actions don’t match the vision and expectations. • Lack of communication (even when you’ve nothing to say) is the biggest cause for clients leaving. • Financial planning is a trend line. The longer the time between updates, the more your projections will be off, creating distrust. 42 Rule 2.2 always applies: *A certificant shall disclose to a prospective client or client the following information: a. An accurate and understandable description of the compensation arrangements being offered. This description must include: i. Information related to costs and compensation to the certificant and/or the certificant’s employer, and ii. Terms under which the certificant and/or the certificant’s employer may receive any other sources of compensation, and if so, what the sources of these payments are and on what they are based. b. A general summary of likely conflicts of interest between the client and the certificant, the certificant’s employer or any affiliates or third parties, including, but not limited to, information about any familial, contractual or agency relationship of the certificant or the certificant’s employer that has a potential to materially affect the relationship. c. Any information about the certificant or the certificant’s employer that could reasonably be expected to materially affect the client’s decision to engage the certificant that the client might reasonably want to know in establishing the scope and nature of the relationship, including but not limited to information about the certificant’s areas of expertise. d. Contact information for the certificant and, if applicable, the certificant’s employer. *(CFP Board’s Standards of Professional Conduct, Certified Financial Planner Board of Standards Inc., 2009) 43 Back to the case studies… Did not disclose to the client that Respondent was only authorized to sell long-term care insurance policies for one company. Case 21547, Private Censure, Suitability, Conflict of Interest, Disclosure to Clients Failed to clarify his lack of involvement in recommending and endorsing a particular investment to his clients. Case 15982, Private Censure, Diligence, Disclosure to Clients, Professionalism Rule 2.2 Violations – whether it’s a plan or not! 44 If No, There Are More Steps Beyond Disclosures Rule 3.3: *A certificant shall obtain the information necessary to fulfill his or her obligations. If a certificant cannot obtain the necessary information, the certificant shall inform the prospective client or client of any and all material deficiencies. *(CFP Board’s Standards of Professional Conduct, Certified Financial Planner Board of Standards, Inc., 2009) 45 Section 3: When Not a Financial Plan Baseline standard of care applies –outlined in rules of conduct 1.4! Rules 2.2 and 4.5 still apply! 46 See How It’s Different Non Planning Engagement Some of the same rules, but note that some documentation requirements are removed. Question is: How do you document you completed the requirement? Planning Engagement 47 CFP Board Really Has Made It Easier To Comply! Use the four-page form and include documentation for every client. It’s good ethics. It’s good compliance. It’s good business. 48 Summary: Frequently Asked Questions 49 Thank you! And all the best to you in your practice! For 3rd insurance hour please re-sign in! 50 Resources 1. 2. 3. CFP Board’s Standards of Professional Conduct, Certified Financial Planner Board of Standards Inc., 2009. 4. Leonard, L., Frederick, S., and Ariely, D. “Try It, You'll Like It: The Influence of Expectation, Consumption, and Revelation on Preferences for Beer.” Psychological Science. December 2006 17: 1054-1058. 5. Shih, M., Pittinsky, T. L., and Ambady, N. “Stereotype Susceptibility: Identity Salience and Shifts in Quantitative Performance.” Psychological Science , Vol. 10, No. 1 (Jan. 1999), 80-83. Published by: Sage Publications, Inc. on behalf of the Association for Psychological Science Article Stable URL: http://www.jstor.org/stable/40063382 6. Gilovich, T., and Savitsky, K. “The Spotlight Effect and the Illusion of Transparency: Egocentric Assessments of How We Are Seen by Others.” Current Directions in Psychological Science , Vol. 8, No. 6 (Dec., 1999), pp. 165-168 Published by: Sage Publications, Inc. on behalf of Association for Psychological Science Article Stable URL: http://www.jstor.org/stable/20182597 7. 8. Pompian, M. M. (2012). Behavioral Finance and Wealth Management. Hoboken: Wiley Finance. 73-84 9. 10. 11. 12. 13. Ariely, D. (2010). The Upside of Irrationality. New York: HarperCollins, 109-116 Listening skills reference Chang, J. (2011). A case study of the “’Pygmalion Effect’: Teacher expectations and student achievement.” International Education Studies, 4(1), 198-201. Stephen. (2010, Jan 12). Set a goal and score in the future. Timaru Herald. Retrieved from http://search.proquest.com/docview/313902670?accountid=35812 Khaneman, D., and Tversky, A. (1984). "Choices, values, and frames." American Psychologist 39 (4): 341–350. Airely, D. (2008). Predictably Irrational. New York: HarperCollins. Snow, A. (2010) Journal of Risk and Uncertainty 40. 2 (Apr. 2010): 133-145. Ariely, D. (2010). The Upside of Irrationality. New York: HarperCollins, 32-33 51 Scoping out your Insurance Ethics too! Presented by: Associate Professor Carol S. Craigie, ChFC, CFP® ©2014, College for Financial Planning, all rights reserved. 52 This Next hour… • Explore Fiduciary Duty and reasons to adopt • Research on client satisfaction, stickiness and ethics • Explore cases of violation including insurance issues through CFP Board Anonymous Case Studies Different definitions • Same concept/different standards • Lines are blurry but client expectations are not! 54 Case Study 1 - #19812 The wife of a former client (“Client”) lost her claim for benefits due to an inaccurate answer on the Client’s life insurance application. Violation of state Consumer Protection Act Diligence, Negligence, Misrepresentation, Breach of Contract, Fiduciary Duty 55 Case Study 2 - #23352 Failed to: 1) perform an investigation and analysis into the insurance needs of his clients prior to recommending that they purchase insurance policies; 2) perform a cash flow analysis regarding his client’s ability to pay the premiums for the insurance policies recommended by Respondent; and 3) present his insurance recommendations and ensure that the recommendations met his client’s expectations with respect to their ability to “premium offset” in five years. Client’s best interest, Suitability, Fiduciary Duty 56 Case Study 3 - #21319 Conducted unregistered financial planning seminars about insurance products without identifying himself as an insurance producer, offered inducements to purchase financial planning services and conducted business in an unregistered branch office. Misrepresentation, Failure to Register, Professionalism 57 Case Study 4 - 21725 Recommended and sold a viatical to the Client, who was 85 years old at the time, when Respondent was not licensed to do so Failure to Register, Professionalism, Client’s Best Interest 58 Case Study 5 - #13449 Recommended clients over-concentrate their assets in annuities; 2) failed to adequately supervise while serving as both a broker-dealer principal and compliance officer of a broker-dealer in twenty-two states with fifty brokers and five registered investment advisors Professional Discipline, Professionalism, Suitability, Lawsuits involving Financial Matters 59 Case Study 6 - #18861 Inaccurately completed a health insurance application for a client (“Client”), leading to rescission of the Client’s coverage and Respondent’s violation of a state statutory provision. Settlement, Professional Discipline, Professionalism, Misrepresentation, Diligence 60 Case Study 7 - #22820 When he promised to personally make the client whole after the client sustained alleged losses on a free withdrawal from an annuity. Professionalism, fitness 61 Case Study 8 - #23777 Recommendation resulted in 70% of the clients’ assets being invested in annuities. Professionalism, Suitability, Fitness, Customer Complaints, Professional Discipline 62 Case Study 9 - #19834 Obtained waivers of Contingent Deferred Sales Charges (“CDSCs”) for approximately 14 customers by claiming that these customers were disabled, when, in fact, they were not. Employer Policy violation, Misrepresentation, Professionalism, Professional Discipline, Diligence, Fraud related to Professional Activity 63 In summary Good Ethics = Good Business 64 CFP Board Standards of Professional Conduct End of Slides ©2014, College for Financial Planning, all rights reserved.