August 24, 2010
I disagree that the fiduciary standard has protected consumers better. Basically, the fiduciary standard looks back and enforces breaches retroactively through SEC enforcement or private lawsuits. The suitability standard looks forward and tries to prevent harm to consumers through ongoing and frequent FINRA and broker-dealer audits and compliance processes.
The Dodd-Frank Act permits the SEC to require that all broker-dealers be held to the same legal fiduciary requirement investment advisers have when providing advice to clients. Should the SEC choose to use that authority, the fiduciary duty as defined by the Dodd-Frank Act would require that all broker-dealers be held to a legal and vaguely defined standard "to act in the best interest of the customer without regard to the financial or other interest of the broker, dealer, or investment adviser providing the advice."
While I believe we are already acting in the "best interest" of our clients, the Act does not define what the rules are for compliance with a legal "best interest" standard - thus subjecting registered representatives to the potential of never ending lawsuits. For example, is "best" the cheapest recommended product? The "best" premium relative to the benefit of the product? The product with the "best" historic underwriting and service standards? Is it the one from the carrier with the "best" rating? The fiduciary standard in essence adds a vague legal liability standard that looks back (sometimes after many years) and is enforced after the fact by the SEC or trial lawyers who have perfect vision in hindsight.
Fortunately, due solely to NAIFA's vigorous efforts, the duty as defined by the Act does include some key limitations that prohibit a regulator from holding a registered representative in violation of the "best interest" standard simply because they receive a commission or recommend to the client to purchase a proprietary product.
Most importantly, I believe that the Act will force the middle to lower class to try and do financial planning on their own. This will cause more issues and problems for our country than we can possibly imagine. I want the ability to help all people, not just certain people. I wish that the people that are voting on "Acts" such as this one really knew what impact this Act would have on our country.