August 24, 2010
I am writing you to ask you not to adopt the fiduciary standard across the board for all broker dealers. I have been in this industry for 25 years and feel the suitability standard best addresses the needs of the clients we serve. Imposing the fiduciary across would also limit the choices that middle and lower income Individuals would have. It would limit their access to products and services because they could not afford or would not pay a fee for services. It would also drive many professionals out of the business because of the burdensome regulations and liability it would create. We are regulated enough The problems associated with the last market meltdown would not have been avoided by adopting a fiduciary standard Our industry as a whole serves our clients very well with the suitability standard.
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."
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.