Brokers, Fiduciaries, and a Beginning

Under our securities regime, investment advisers are considered to be fiduciaries, whereas broker-dealers are not. This historical divergence emerges from a combination of statute and federal common law: brokers were exempted from the definition of “investment adviser” in 1940, while the United States Supreme Court in 1963 declared the investment advisers to have fiduciary obligations. The Dodd-Frank Wall Street Reform and Consumer Protection Act (Dodd-Frank Act), signed into law on July 21, 2010, effectively questions whether this bifurcation makes sense by asking the Securities and Exchange Commission (SEC) to study this divergence and giving it statutory authority to make the standard of conduct of broker-dealers congruent with that of investment advisers when advising retail customers. The essay, structured in three parts, argues that though the new legislation represents a positive beginning, difficult work lies ahead. Part I suggests that there is much to applaud in the new legislation: it gives the SEC the authority to simplify and unify functionally similar financial services and thereby reduce investors’ confusion; moreover, it gets beyond the conventional contractarian rhetoric to interpose fiduciary protections for investors. Part II addresses two objections to making broker-dealers subject to a fiduciary standard: that sales activities are not fiduciary in nature and that brokers also acting as dealers and underwriters will be in conflict with their customers. Neither of these concerns is sufficient to eschew the fiduciary standard. Finally, Part III outlines the two practical issues that must be confronted if the fiduciary standard is to protect investors: its definition and enforcement