First the bad news: The Dodd-Frank Act of 2010 does not impose on brokers a fiduciary standard to put the interests of their clients first. Now, the good news: Section 913 of the Wall Street Reform Consumer Protection Act requires that the SEC conduct a six-month study of the ramifications of implementing such a duty, and if the study warrants it, the SEC “may” write rules that hold brokers to “the same standard of conduct applicable to an investment advisor under Section 21 of the Investment Advisors Act of 1940.”
How good is the good news? It depends on who you talk to. For one thing, the new law includes two clauses specifically designed to promote the securities business as usual: “Nothing in this section shall require a broker or dealer or registered representative to have a continuing duty of care or loyalty to the customer after providing personalized investment advice about securities,” and; “The sale of only proprietary or other limited range of products by a broker or dealer shall not, in and of itself, be considered a violation of the ['40s Act RIA] standard…”
But the main concern for fans of a fiduciary standard for brokers it that its future now rests in the hands of Chairman Mary Schapiro and the other four commissioners of the SEC. “It’s true she comes from the FINRA world,” said Knut Rostad, chairman of The Committee for The Fiduciary Standard. “But her public support over the past year for a genuine fiduciary standard for brokers will make it very hard for her to back off now. Plus there are four other commissioners, the majority of whom appear to support a fiduciary duty as well. That makes me cautiously optimistic that we’ll have an authentic fiduciary duty for brokers and RIAs when all is said and done.”
As you may know, when it comes to matters of the securities industry and the SEC, I tend to be rather skeptical. But Knut’s thoughts, combined with the Obama Administration’s continuing and unwavering support for a fiduciary standard, make me think his optimism may well be warranted. I, too, have become a Mary Schapiro fan in recent months, and now it’s time for her to step up.