You Can’t Make This Stuff Up
Posted by Robert Louis on 12 Jan 2009 | Tagged as: General
Unless you’re Charles Dickens, or one of the people involved in recently revealed alleged embezzlements that seem incredible.
My investment adviser suggested, or perhaps prayed, that the revelation of spectacular wrongdoing was a sign that we are coming to the bottom of the investment cycle. It’s not unlike the comment by someone, I think Warren Buffett, that when the tide goes out, you see who’s swimming naked. As always, there’s a lesson here, and it applies to everyone who has responsibility, however slight, for the care and management of money and other assets.
The lesson, fairly obvious, is that you must know where everything is, what’s being done with it and what people are charging against it. The rules of fiduciary responsibility are related in exhaustive detail in Austin Wakeman Scott’s treatise, in the Restatement of the Law of Trusts, in the Employee Retirement Income Security Act of 1974, and in numerous state laws and cases in Pennsylvania. We will shortly see the filing of many cases against Bernie Madoff and Marc Dreier, in which these principles will be cited. Between human greed, and Congress, lawyers will never go hungry.
Putting aside these spectacular examples of possible wrongdoing, the duty of care extends to many financial matters. Several of my clients have pension plans, where a third-party adviser handles investments. I am not the trustee and have no responsibility for the plans’ investments. Statements for the plans are sent to me monthly or quarterly. What is my responsibility with respect to those statements? I’m not to second-guess the investments, but perhaps there is at least a responsibility to make a cursory review of the statements. Either that, or I should either stop the statements from coming to me or advise the client that I cannot conduct any helpful review of the statements.
Here’s another example: A client has a retirement plan for which the investments are managed by one entity and the administration by another. Given the involvement of these two groups of experts, the client suggests that its office really need do nothing and has been able to supply few of the documents that it should have on hand. There’s probably nothing happening to cause concern, but I have advised the client that its responsibility is to have copies of all relevant documents, financial reports, and contracts setting forth who gets paid what for doing what. You can’t be criticized for having too much documentation of financial assets, but you can look like a great fool if you have to tell a judge, “I thought someone else was taking care of that,” or “They seemed honest.”
It’s not very likely that we will be involved in alleged embezzlements of the types reported recently, or the New Era scandal of a few years ago, or that we will meet up with the modern version Augustus Melmotte. But we will experience the need to be responsible in advising our clients on keeping good and careful records on the management of money and other assets, and this will help them from reading about themselves in newspapers or case reports.
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