Asked when the SEC can be expected to release a proposed rule, chair Clayton said, "The sooner the better. I'm not sitting on this."

Despite that pledge from the financial industry's top cop, some sources have suggested the regulatory process is slowing at SEC.

Louis Harvey, CEO of Dalbar Inc., which provides compliance support throughout the financial services industry, has doubts the SEC can promulgate and implement a rule quickly.

Under the quickest scenario, a proposed rule would emerge in the second quarter of this year before it is put out for public comment. A rule could be finalized by the middle of next year, after which industry would have six months to a year before it is implemented, putting a potential standard in place sometime in 2020.

But that timeline assumes the SEC won't meet resistance from broker-dealers, the insurance industry, and consumer advocates, all with competing interests.

"I don't see a reasonable path to quick implementation," Harvey told BenefitsPRO. "It's unreasonable to assume the SEC has this magic wand—they will be challenged with the same issues DOL faced. It will be hard to find a middle road that satisfies all interests."

While broker-dealers and insurance companies were consolidated in their effort to kill Labor's fiduciary rule, the longstanding reality is that those groups have competing interests.

One regulatory angle the SEC is considering is title reform, which would enforce the pure definition of investment adviser and its fiduciary implications, and prohibit broker-dealers and insurance agents from holding themselves out as advisers without being fiduciaries.

But that effort has been stymied in the past. In a recent press call, the leadership of the Insured Retirement Institute, a trade group that advocates for insurance companies and broker dealers, said they were against title reform.

Though industry opponents of Labor's rule have long argued the SEC is the appropriate agency to implement a fiduciary standard, there is no guarantee that an SEC rule won't meet its own legal challenges.

"If the SEC releases a tough rule, you will have insurance companies and broker-dealers screaming bloody murder. They know the success they had in delaying DOL's rule—they will use the same techniques if SEC comes out with a strong rule."

If the SEC produces a weak rule, consumer advocates are certain to raise concerns, said Harvey, who said a rule could be several more years in the making.

Incentive from states

Kevin Walsh, an attorney with the Groom Law Group, acknowledges the complexity of the task before the SEC, but still believes the SEC is squarely intent on producing a rule as soon as possible.

"If it were easy to promulgate this rule we would have seen it by now," said Walsh.

What is different this time is the efforts by state regulators to issue fiduciary rules. Five states have or are in the process of promulgating rules. Both Walsh and Harvey said more can be expected to follow.

That factor will motivate competing industry interests to coalesce, and should influence Republican lawmakers on Capitol Hill, thinks Walsh.

"If everyone's goal is to give investors access to quality, low cost advice, having 50 different state standards doesn't get us there. The threat of state action creates the incentive to get a rule done," said Walsh.

Market forces will move the fiduciary standard

Whatever the legal fate of Labor's fiduciary rule may be, or the complexities before the SEC that could potentially delay its rulemaking, Harvey says that market forces will ultimately outweigh what courts and regulators do.

"The effect the DOL rule has had is to raise public awareness that there is an issue regarding their best interests. People now realize that those they are investing with may not have their best interests in mind. This has had a huge impact on public behavior. The DOL triggered an awareness that I think will carry the day," said Harvey.

Before the 5th Circuit decision, some broke-dealers and insurance companies embraced the rule out of necessity and implemented thorough compliance polices.

Those that have adopted a fiduciary standard, even if it ultimately is not the law, will use it to "crush" competitors that don't, predicts Harvey.

That sentiment is shared by consumer advocates and industry proponents of Labor's rule, which Harvey was not.

"Imagine a plan sponsor who chooses a non-fiduciary over a fiduciary—they had better be prepared for a class action lawsuit. Non-fiduciaries will begin to lose so much business that they will rally around the DOL standard until something better comes along," said Harvey.

For employers, it will be "fiduciary or bust," and the retail market will not be far behind, says Harvey.