This option eliminates all conflicts of interest between the client and advisor. For example, commissions will no longer be an acceptable means of compensation. Advisors serving as a fiduciary under ERISA must either charge an hourly rate, a flat fee or a flat percentage of assets under management regardless of the asset class.

Read: Go to our DOL fiduciary rule page

It is important to note here that an ERISA fiduciary differs greatly from a fiduciary under the Investment Company Act of 1940 (’40 Act). Since I am not an ERISA attorney, I won't attempt to explain the differences between the two in their entirety. Ultimately, the key distinction is that the ERISA fiduciary cannot have any conflicts of interest, while a ’40 Act fiduciary has to “pledge” to disclose and manage the conflicts.

Option #2: Advisor serves as an ERISA fiduciary with conflicts under the Best Interests Contract Exemption.

Under this option, the advisor can make IRA recommendations under BICE. This exemption is the DOL’s attempt to allow for a compensation model similar to the majority that exist today.

The BICE essentially allows for conflicted forms of compensation (i.e., commissions and revenue sharing) as long as the compensation is “reasonable,” adequately disclosed and does not lead to biased recommendations in any way.

The BICE also requires a laundry list of disclosures around compensation and costs. In short, advisors will be required to disclose how much they and their firm will make on each specific recommendation along with the annual costs, in dollars, that will be incurred by the client.

Oh, and one other small detail--the advisor will have to execute a contract with each client, attesting to the fact that any recommendations will not be biased in any way.

Any violation of this contract or omission of disclosure requirements of the BICE could lead to a breach of contract claim against the advisor and the firm.

Let's consider how advisors may respond to these new requirements. The DOL's most common soundbite regarding this rule is “If your doctor and lawyer must put your best interests first, shouldn't your financial advisor?”

I’ll save my thoughts as to whether or not doctors and lawyers serve as fiduciaries in a manner proposed by the DOL for another column, but here is what I will say: Just as doctors order tests to reduce their potential liability, advisors will consider potential liability when making recommendations.

While serving as an ERISA fiduciary is the more restrictive of the two options, it is also the clearest as to what is allowed and what is not. I predict that many advisors will take this more conservative route.

The BICE, while allowing advisors to make relatively minimal changes to their existing business model, comes with many uncertainties. Questions such as what is “reasonable” compensation, what fees must be disclosed and how, and what other forms of payment must be disclosed will be debated by every financial institution.

I suspect many of the answers to these questions will not be known until the lawsuits are filed after the next bear market.

New contracts

Now that I have discussed how I see advisors responding to the proposed new DOL rule, let's turn to the treatment of annuity contracts by advisors in reaction to the rule.

Given the relatively long duration an annuity could and should be held, I could make an argument that a 7 percent upfront commission is reasonable. After all, if the policyholder owns the annuity for 10 years or more, that essentially equates to 0.70 percent per year or less.

Over the long run, even a commission of this size could be the cheapest option for the policyholder.

However, each financial institution, and selling advisor, will have to ask themselves whether or not they want to potentially defend such a commission.

Advisors and their firms will quickly conclude that it will be easier to defend a 6 percent upfront commission than a 7 percent upfront commission. It will be far easier still to defend a 2–3 percent commission, even if it comes with an annual trail.

Putting it all together, a few conclusions regarding future annuity product designs come to mind.

First, there will be a need for annuities that pay zero commissions and can be sold in a fee-based account. For those advisors that take the ERISA fiduciary route, this will be their only option for selling annuities. Many advisors that decide to utilize the BICE will also likely choose to reduce their potential liability by recommending annuities that do not pay commissions.

There is no language in the BICE suggesting that you cannot utilize a fee-based account structure as a means to comply with its requirements. Rather than worry about whether or not a commission is reasonable, especially when commissions differ from product to product, many advisors will likely turn to a fee-based account structure and eliminate that particular uncertainty altogether.

Second, while I’m not predicting an end to commission-based annuities, I do believe that the commission structure will change. I think the days of 5 percent-plus upfront commission options will soon be behind us. These will likely be replaced by commission options of 1–3 percent upfront with an annual trail. In other words, a commission structure that looks a lot like a fee-based account charge.

The commission compression will also lead to changes in the surrender charge schedules. Once the larger upfront commission options are eliminated, there is no longer a need for initial surrender charges of 7–10 percent, nor do they need to last as long. Annuity companies will likely introduce three different annuity designs:

• A low-cost option that pays zero commissions with no surrender charges designed for fee-based accounts under both ERISA and the BICE.

• A low-cost option that pays zero commissions and has low surrender charges for a limited amount of time designed for accounts under ERISA and BICE. The addition of a minimal surrender charge will allow for better consumer pricing, and would therefore be positioned as an option for policyholders who are willing to accept this minimal potential charge.

• A slightly higher-cost option that pays some commission and has a low, but longer, surrender charge period that is designed to be used only with the BICE.

If I’m correct, this could also be a welcoming end to multiple variable annuity share classes that each sit on a unique product chassis.

Up to this point, the industry has had little success getting advisors to offer annuities in fee-based accounts. While many have tried, few would consider those efforts a success.

Jefferson National, with its $20 per month design, has had the most success and it took them eight years to achieve $2 billion in total sales through advisors.

The industry is understandably concerned about what might happen to sales should my predictions become reality.

At the same time, all of the no-load or low-load annuities introduced to date have had to compete with a commissionable alternative to the same product. Take away that alternative and fee-based options will have more success.

Still, I suspect the industry will see at least a 50 percent drop in sales while advisors adjust to the new model.

Easing compliance

Many advisors will say that the higher commission is necessary to compensate for the time taken to work through the significant amount of compliance paperwork and regulation that exists at financial institutions.

However, I would argue that the majority of this paperwork is a direct result of the current commission structure.

FINRA is so focused on ensuring the annuity is not being recommended because of the commissions that they have forced firms to create a seemingly endless stream of hurdles for virtually every sale.

My expectation is that in a world where the new product designs I have proposed exist, most of the current suitability paperwork would become unnecessary.

In this world, annuities should not attract any more compliance oversight than any other product. Hopefully, FINRA shares my view.

If not, we could very well experience a decline in sales in excess of even the 50 percent I previously contemplated.

Given the great need for guaranteed lifetime income, I would think this would be a situation the DOL hopes to avoid.