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Advisers and the Fiduciary Duty Debate
Author(s) -
Rubin Gary Douglas
Publication year - 2015
Publication title -
business and society review
Language(s) - English
Resource type - Journals
SCImago Journal Rank - 0.524
H-Index - 21
eISSN - 1467-8594
pISSN - 0045-3609
DOI - 10.1111/basr.12073
Subject(s) - fiduciary , duty , business , investment (military) , duty of care , accounting , work (physics) , law and economics , advice (programming) , finance , economics , law , political science , computer science , politics , mechanical engineering , programming language , engineering
This work concerns itself with the debate taking place in the United States about the duty of care financial advisers owe investors. On one side it is argued that advisers need only concern themselves with recommendations which meet certain suitability standards. On the other side, there are those who argue the suitability standard is not strong enough to adequately protect investor interests. Instead of ensuring investment recommendations are merely suitable, financial advisers owe their investors a fiduciary duty to “ act in the best interest of the customer without regard to the financial or other interests … of the investment adviser providing the advice.” ( SEC , 2011). In applying a properly understood conception of what fiduciary means I argue that regulations should not be harmonized but that fiduciary duty should apply to all who provide personalized investment advice to retail customers. I will further argue that even if the regulations are harmonized as proposed, because of exemptions for broker‐dealers as envisioned in the proposal, and which currently apply to Registered Investment Advisers, the efficacy of fiduciary duty is diluted to the point of rendering its current application, much less its potential uniform imposition, irrelevant.