Having a firm culture that puts client interests first is the basis of the fiduciary duty. Any BD that believes that all they have is a suitability requirement is living in La La land. Almost all arbitration claims against brokers has a claim for breach of fiduciary duty. And now, the Department of Labor (“DOL”) in its new fiduciary duty rule has included broker dealers who deal in any sort of retirement investments as fiduciaries. Yes there are exemptions and exceptions, but this is opening the door to a full blown regulatory fiduciary duty. FINRA has been sneaking fiduciary duty into most of their new regulations by stating that firms must be “client-centric” instead of “Product-centric”; best interest of the client, not the BD or the Rep. BD suitability standard is a part of fiduciary duty, but aside from it just being suitable, it must be in the best interest of the client. For example, if there are two mutual funds that are both suitable for the client, but one has a higher front load, then maybe that one may not be in their best interest. It is a more sophisticated analysis.If there are two equal funds but your firm owns one of them, meaning that your Rep will get a higher commission if he sells the proprietary fund, that may not in the best interest of the client. In other circumstances, it may not be as clear cut.Recently, the line between an RIA’s duty and a BD’s duty is blurring. RIA’s are responsible for best execution, and now BD’s will be responsible for fiduciary duty. It behooves BD’s to read all they can on the new DOL fiduciary duty rule, especially if they have retirement vehicles (IRA’s, 401k’s, etc).
Jacko Law Group, PC
FINRA Annual Conference - Part 2
June 3, 2016