With 2015 shaping up to be a potentially significant year for fiduciary regulation, recent comments by SEC chairwoman Mary Jo White suggests the SEC will soon begin to consider how to draft rules that could subject broker-dealers to a similar fiduciary standard as the one that applies to investment advisers. Most likely, this would occur by creating a “uniform fiduciary standard” that would apply equally to both groups, given that the lines between the two types of “financial advisors” have blurred to the point that consumers no longer understand the differences.
Yet the reality is that when advisors and salespeople are clearly labeled as such, consumers actually can understand the difference. We intuitively understand that the advice of a doctor or lawyer is different than the fashion “advice” of the salesperson in a clothing store or the nutritional "advice" of the person behind the counter in a butcher shop. And in fact, subjecting salespeople to an advice standard can create more problems than it solves, whether it’s making butchers become Registered Dieticians, or turning brokers into fiduciaries while they are supposed to still fulfill their actual role as brokers.
Accordingly, perhaps the better solution to the blurring of the distinction between investment advisers and brokers is not to subject them all to a single uniform fiduciary standard as "financial advisors", but instead to simply re-assert the dividing line between them. Let advisors be [investment] advisers (subject to the fiduciary rule that already exists), brokers be the salespeople they legally are, and rather than mixing the two let each hold out as such to the public - where brokerage salespeople are called brokers and investment advisers are called financial advisers - so consumers understand the true choice being presented to them. In other words, consumers don't deserve a choice between fiduciary and suitability; they deserve a choice between advisers and salespeople.
And notably, the rules already exist to create such a separation, under the Investment Advisers Act of 1940. Which means if the SEC merely enforced the existing rules as written, where any advice that is beyond being “solely incidental” to brokerage services would require investment adviser registration anyway, we could resolve today’s consumer confusion about financial advisors… without writing any new laws at all!