Confusion about the Trump administration's announcement callingfor a review of the DOL fiduciary rule less than three monthsbefore it's due to take effect could find some resolution thisweek.

“We're expecting to see a very short, simple notice in theFederal Register that will delay the rule most likely by 180 days,”said Erin Sweeney of the Washington, DC-based law firm Miller &Chevalier. Her best guess: a notice published on Tuesday.

In that case the notice would likely occur before a ruling byDallas federal judge Barbara M.G. Lynn on a pending lawsuitopposing the rule. On Thursday, the judge issued a one-sentencenotice to parties to the to the suit, which include the U.S.Chamber of Commerce, the Securities Industry and Financial MarketsAssociation, the Financial Services Institute and others, that sheintends to rule no later than Feb. 10. That may be one reason theTrump administration issued the memorandum as soon as it did,before its new secretary of labor was confirmed.

The 180-day delay that Sweeney says is most likely is the sametimeframe included in a draft version of a White House memorandumthat circulated early Friday morning. By the time the final versionof the memorandum was released later Friday afternoon, however,there was no mention of a time frame or a directive for the DOL towork with the Justice Department to halt pending litigation overthe rule, which was also included in the draft order.

Also excluded from the final memorandum, but included in thedraft, was a specific order for the DOL to analyze prohibitedtransaction exemptions, which were an integral part of the rule,and to consult with DOJ about whether the fiduciary rule violatesthe “Administrative Procedure Act or any other applicable statute.”The APA governs the way federal administrative agencies maypropose and establish regulations.

Following release of the final memorandum on Friday, actingLabor Secretary Ed Hugler, in a statement, said, “The Department ofLabor will now consider its legal options to delay theapplicability date as we comply with the president'smemorandum.”

“We're back to where we were in the beginning,” saidSweeney.

She expects that after the DOL issues an official noticedelaying the rule, there will be a stay of litigation relating tothe rule and then a notice from the DOL asking for public commenton the issues that the Trump administration listed in its finalmemorandum, which directs the DOL to “prepare an updated economicand legal analysis concerning the likely impact of the FiduciaryDuty Rule, that considers:

• Whether the rule has harmed or is likely to harm investors dueto reduced access to certain retirement saving offerings, products,information or related financial advice.

• Whether the rule has disrupted the retirement advice industryin a way that “may adversely affect investors or retirees.”

• Whether the rule is likely to cause an increase in litigation,and an increase in the prices that investors and retirees must payto gain access to retirement services.

If the DOL concludes that the rule will cause any one of thoseresults or is inconsistent with any priorities indentified in thememorandum — they include empowering Americans to make their ownfinancial decisions and facilitating their ability to save forretirement and build their individual wealth — then the DOLcan publish a proposed rule that rescinds the existing one or arevised rule, asking for public comment.

It doesn't appear on the surface at least that the DOL wouldhave much difficulty justifying either move.

The agency could also issue an interim final rule before sixmonths have passed, which would take effect immediately but also bethe subject of public comment, said Sweeney.

A new rule could, for example, modify the current rule so that aBest Interest Contract Excemption would not be required when anadvisor recommends that a client recommends that a client roll overmoney into a 401(k) plan or the rule could be modified to excludethe possibility of class-action suits for alleged violations of therule, which is included in the current rule.

In the meantime, Sweeney is advising her clients, who areretirement plan fiduciaries and financial service providers, tohold tight until there is more direction from the DOL.

“Don't commit to anything. Don't sign anything. If you're one ofthose plan fiduciaries that has decided to have an advice moduleyou need to step that back and reach back to the recordkeeper. Ifyou've signed any disclosure effective in April (the originaleffective date of the current fiduciary rule is April 1, 2017), beclear you're not bound to undertake any of these actions. You don'twant to accidentally roll out a product that turns out not to becompliant.”