Selling Advice and Creating Expectations : Why Brokers Should Be Fiduciaries

Investors face a dizzying array of choices regarding where to invest their funds and increasingly rely on experts for advice. Most advice about securities is provided by investment advisers or broker-dealers, legal categories with little meaning to most people but fraught with consequences. Although advisers and brokers often perform the same function, advisers are subject to a strict fiduciary standard to act in their clients' best interest while brokers are subject to a less rigorous standard of suitability to ensure that their recommendations are suitable for customers. In 2010, the Dodd-Frank Act authorized the U.S. Securities and Exchange Commission (“SEC”) to harmonize the regulation of advisers and brokers and impose a fiduciary duty on brokers that give advice. This Article is about whether the SEC should exercise its authority. After explaining the historical context regarding the debate over a fiduciary standard, the Article critiques common arguments for a fiduciary duty, concluding that they are incomplete and do not alone justify a change in the law. The Article then presents a better justification, based on the reasonable expectations of investors. Reasonable expectations arise from brokers marketing their services as advisory services and using titles, such as “financial advisor” and “financial consultant.” Reasonable expectations provide a stronger justification for a fiduciary standard than the conventional arguments