September 13, 2010
Rather than attempting to apply the fiduciary standard to brokers, which would be highly impractical in execution, it is far better to require that all brokers who sell any security or financial product or financial service to a retail customer make the following (or similar) written disclosure in advance of the transaction:
"Your account is a brokerage account and not an advisory account. Our interest may not always be the same as yours. Please ask us questions to make sure you understand your rights and obligations to you, including the extent of our obligations to disclose conflicts of interest and to act in your best interest. We are paid both by you and, sometimes, by people who compensate us based on what you buy. Therefore, our profits, and our salespersons' compensation, may vary by product and over time."
The above quoted language is the disclosure required by Rule 202(a)(11)-1 under the Investment Adviser Act of 1940 adopted on April 12, 2005.
The rule was adopted pursuant to Section 202(a)(11) of the Investment Advisers Act of 1940, which excludes broker-dealers from the definition of an investment adviser, if the advisory services are solely incidental to their broker-dealer businesses and they receive no special compensation for these services.