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March 01, 2010 |
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Advisors Confused By New Custody Rules |
(Dow Jones) Changes to the SEC's rules about custody of client assets go into effect in two weeks, and advisors say they are still trying to figure out how to comply with them.
Widespread confusion and frustration over the amended rules was evident during a panel discussion at the Investment Adviser Compliance Forum in Arlington, Va., on Thursday. Many advisors are looking for official guidance from the SEC before the effective date, which is March 12.
"The rule is not ready for prime time," Mari-Anne Pisarri, a Washington, D.C.-based lawyer, told Dow Jones Newswires.
Pisarri, who sat on the panel, told the audience that the SEC shouldn't have finalized the rules with so much confusion. Many of the 200 advisors present applauded the comment.
The advisors mobbed the panel after the discussion with questions about how the rules applied to their specific situations. One advisor told a panelist that her firm had been consulting with lawyers for months.
The rules are intended to bolster protection of client assets. They require, among other things, that the qualified custodians of funds for advisors' clients send account statements directly to those clients. Also, certain advisors will be subject to surprise examinations.
Advisors who are also qualified custodians for client assets will have to hire an accountant certified by the Public Company Accounting Oversight Board, or PCAOB, to report on their internal procedures.
Many advisors are still trying to work through compliance problems, says Valerie Baruch, as assistant general counsel of the Investment Adviser Association, a Washington, D.C.-based trade group that co-sponsored the conference with ACA Insight, a compliance newsletter. For example, the rule requires, in some cases, that qualified custodians hold private securities of certain pooled investment vehicles. But custodians don't always agree to hold those securities, she said.
In another example, some advisors in the Boston area are finding that the new rules don't accommodate their longstanding business models: They operate as trust companies that hold client funds in omnibus accounts—a practice dating back 200 years. Now, some are struggling to find new qualified custodians by March 12 who can perform the detailed accounting that's needed to generate duplicate account statements for clients.
The rules also require surprise examinations of accounts for advisors who act as trustees. But some advisors are finding that accountants are reluctant to audit just one or two client accounts, so they're quoting higher fees.
Sarah Bessin, assistant director of the SEC's Division of Investment Management, told the audience that the agency's Office of Compliance Inspections and Examinations is aware of the "areas of uncertainty."
Andrew "Buddy" Donohue, director of the SEC's Division of Investment Management, said earlier in the conference, in keynote remarks, that his staff is "working hard" to clarify the issues. The agency will post answers to frequently asked questions on a rolling basis on its Web site, he said, but didn't specify a date.
Advisors, in the meantime, should do their best to reasonably comply with the spirit of the rules and document their efforts, said Pisarri.
Still, some advisors said the SEC was asking too much before it provided enough answers. One advisor said she wasn't aware until the panel presentation that she now must print instructions on client statements informing them to compare that information with the statements sent by the custodian.
Some lawyers say forging ahead is still the best approach.
"We'll be walking through the mist for a while," Stephanie Monaco, a Washington, D.C.-based regulatory lawyer told Dow Jones Newswires. "The fact that the March 12 date has triggered shouldn't matter."
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