Whether a financial advisor is an “investment advisor” or a “broker” (or neither) under the federal securities laws, an advisor may be an agent under the common law of agency. In such situations, for example the situation in which the financial advisor has discretionary trading authority over a client’s account, the advisor is a fiduciary who is subject to the fiduciary duties of loyalty, care, and a host of subsidiary rules.

While both investment advisers and broker-dealers provide advice about securities, only advisers are subject to a fiduciary standard to act in their clients’ best interest. Brokers, meanwhile, are subject to a less strict suitability standard. Because investors reasonably expect that brokers will in fact operate in a fiduciary capacity, the SEC should impose a fiduciary duty on brokers that give investment advice.

Despite the fact that mutual funds’ past performance is not a good predictor of future returns, mutual fund companies routinely advertise the returns of their best funds. While the SEC requires certain warnings be attached to performance advertisements, current regulation is grossly inadequate. At least, the SEC should strengthen its currently-mandated warnings. Better yet, it could reinstate its prohibition of fund performance advertising altogether.