As for the litigation risk, I'm curious how the rules are actually written because it sounds like they could make it pretty easy. Did you get a kickback from convincing a customer to invest in something? If yes, you're not a fiduciary (by definition because there are equivalent investments which don't need to pay out kickbacks to salesmen and will thus do better for the client) and broke the rule. If you didn't get a kickback, and weren't grossly incompetent (probably judged with some definition of diversification), you're covered from litigation risk. Are there rules currently protecting clients from the gross incompetence of their advisers?
Pre-DOL rule brokers had a "suitability" standard, which means that their recommendations have to be suitable to the customer's characteristics/objectives (but kickbacks/conflict of interest ok as long as the investment is suitable). Investment advisers have always had a fiduciary standard reflecting that you are hiring them to choose your investments for you. A broker is more facilitating your making your own investment decisions which was why the lower standard.
I would venture to say the financial industry is in favor of a "uniform fiduciary standard" (for IAs, brokers, and both retirement and non-retirement accounts). You might ask why they didn't just voluntarily do it, and fair point, but to be competitive it can be hard to subject yourself to a higher standard than your competitors (although some do). Things the industry would want to change about the current rule though: (1) SEC should write it--duplicative regulations and regulators don't help anyone except lawyers like me :); (2) it should apply equally to retirement and non-retirement accounts, and (3) there should not be a private right of action.
That last part goes to the litigation risk. The DOL rule allows customers to sue their advisor for not meeting the fiduciary standard. But whether or not you've met the standard is not that cut and dry, which creates an opportunity for plaintiffs lawyers to bring lots of lawsuits hoping that companies will settle to avoid litigation costs. The other option is for the regulation to just be enforced by the regulator--not the courts.
Also, a few things about how one complies with the DOL rule:
1. It's not about getting no kickbacks--it's about getting EQUAL kickbacks. So I can't recommend to you mutual fund A if mutual fund B pays me less than A, but I could ask my mutual fund companies to create share classes with the same kickbacks, so that then I can recommend whichever one I want (this is happening). I think this is generally a good thing, because with kickbacks being equal the advisor should theoretically recommend the "best" option. But there are some unintended consequences, such as cheaper mutual funds having to raise their fees so that they can be "equal" or brokers kicking cheap investments off their platforms (Morgan Stanley has recently kicked Vanguard off their platform).
2. Compliance involves a lot of paperwork. For one, you have to get your customers to sign contracts, and this can be difficult for call center advisers (geared toward the less affluent). This sounds like a small thing, but additional paperwork can really hit profit margins, making certain clients no longer worth the cost.
I'll say again, I'm not against a fiduciary standard at all, and I don't even like Scaramucci as a person haha, I just didn't think his comments were really outrageous and wanted to bring a different perspective on the DOL rule. I think with most political policy issues, the more you understand it, the harder it is to be staunchly on one side or the other.
