According to a new survey sponsored by John Hancock Financial Network, "eighty-five percent of retirement plan advisors are currently performing services traditionally performed by plan fiduciaries, although most are not declared plan fiduciaries." While seen as an opportunity for business development, survey respondents declared a need for more "fiduciary guidance, competitive information" and updates about new rules and reguations. Notably only about one-third of queried advisors self-described as "investment experts." See "John Hancock Financial Network's 2011 Retirement Plan Advisor Survey Suggests Advisors Need New Level of Support from Broker-Dealers," June 30, 2011 Press Release.

They are not alone in recognizing that the playing field is soon to change. More than a few pundits predict that an expansion as to who serves as an ERISA plan fiduciary is more a "when" versus an "if" on the part of the U.S. Department of Labor ("DOL").

In "Dalbar Creates Registered Fiduciary Program for 401(k) Advisors," Money Management Executive writer Lee Barney writes on June 29, 2011 about the importance of duty of care education. In a Nationwide Financial press release dated June 28, 2011, readers learn that fifty percent of its plan sponsor clients cite fiduciary risk as a critical challenge.

In "DOL's Borzi Fights Critics of Proposed Fiduciary Rule," Advisor One contributor Melanie Waddell (June 28, 2011) describes the DOL leader's attempt to clarify outstanding concerns. First, she asserts that an effort is underway to coordinate with other regulatory bodies, while pointing out that "SEC follows securities laws and will be assessing putting brokers under the same fiduciary mandate as advisors, while the EBSA has a statutory structure under ERISA that defines fiduciary, so 'it's unlikely that our rules would be identical, and Dodd-Frank doesn't say they have to be.'" Second, she adds that ERISA spawned retirement vehicles such as IRAs so it makes sense for this $4 trillion market to fall under the watchful eyes of the U.S. Department of Labor. Third, she does not believe that brokers will receive fewer commissions with the advent of an expanded fiduciary rule.

No doubt there is much more to come on the topic of ERISA plan fiduciary liability.

Note to Readers: EBSA stands for the Employee Benefits Security Administration which is part of the U.S. Department of Labor.