The Financial Services Institute’s proposal for streamlined, simplified conflict of interest disclosure appears to be making its way into the SEC's best interest proposal.

“Earlier this year we had meetings with [SEC] Chairman Jay Clayton and [SEC Director of the Division of Trading and Markets] Brett Redfearn and we are ... hearing that many of our themes that we’ve hit on in our advocacy” are starting to find their way into the proposal, FSI President Dale Brown told reporters at the FSI One Voice Conference in Dallas on Tuesday.

FSI represeants independent broker-dealers and their affiliated advisors.

According to Brown, provisions in an early draft of the proposal include:

• Short-form disclosure of conflicts of interest and compensation methods at the outset of engagement with clients.
• An SEC template that all firms and practitioners could use for disclosure.
• A clearly articulated, single, best interest of care.

The SEC proposal is designed to require that brokers and investment advisors put investors’ best interests first and that they disclose potential conflicts of interest, particularly compensation, that may influence the advice, products or services they’re offering. The proposal is expected to be released to the public in the second quarter of this year, according to Clayton’s public priorities letter for 2018.

“We’re pleased to see that all the hard work we’ve done on that issue over the past 10 years is coming to fruition,” Brown said. “One thing that Chairman Clayton has done is greatly narrow the SEC’s focus. ... They tell us that this is a top priority."

In anticipation of the proposal, the FSI is actively lobbying against a titles-based component of the SEC’s best interest proposal that would force its 40,000 members to differentiate themselves as either registered investment advisors or registered representatives, executives at the press conference said.

Most of FSI’s members are dually registered, so asking them to choose one title, when they may use both commission-based and fee-based products with the same client, is not workable, said David Bellaire, FSI’s executive vice president and general counsel.

“A titles-based proposal may sound elegant ... but would make regulation even more complicated and confusing. We’d prefer to see a single level of care regardless of title,” Bellaire said.

That puts the FSI squarely at loggerheads with the Committee for the Fiduciary Standard, a group of 1,110 investment advisors that earlier this month asked Clayton to require dually registered investment advisor reps to choose whether they are a salesperson or an investment advisor. The committee asked the SEC to prohibit brokers and registered representatives from using the title “investment advisor,” and to limit them to using the title “broker” or “salesperson.”

“Call yourself what you are and if aren’t going to be a fiduciary and act in a client’s best interests, you’re a salesperson or a broker and that’s what you should call yourself,” Patricia Houlihan, chairperson of the Committee for the Fiduciary Standard, told Financial Advisor.

FSI executives said they will continue to lobby against any proposal that differentiates between registered investment advisors and registered reps. “We want a single uniform best interest standard of care for all financial advisors who deliver personal advice to investors,” Brown said.

To that end, the FSI is challenging to the U.S. Department of Labor’s best interest rule—which applies only to advisors working with “qualified” retirement plans and assets—in the Fifth Circuit Court of Appeals in Dallas. While a decision was expected early in 2018, there is growing consensus that the court may have shelved the case. Brown said FSI is hoping the DOL’s 1,038 page rule will be overturned by the court “and the DOL could start fresh.” He declined to comment on whether the court may have shelved the case in order to give the DOL time to carry out a review of the rule that is scheduled to be completed by July 9, 2019. “We continue to pursue our litigation,” Brown said.

In the meantime, the FSI is giving the DOL input on its review, particularly in the area of revising the “Best Interest Contract Exemption (BICE)” and the rule’s additional levels of compensation disclosure. FSI and other pundits say these provisions add unfair regulatory hurdles to commission-based sales, such as sales of variable annuities, and is dissuading advisors from working with customers with smaller account sizes for whom commissions are less expensive.

“We are trying to get the DOL rule workable,” Brown said. “We secured a delay of the rule for 18 months to pursue our efforts and coordinate and sync with what the SEC is doing.”

The group expects state activity on best interest standards to accelerate both on the securities side—with Nevada passing its own rule and N.Y. proposing its own standards—and the insurance side, with the National Association of Insurance Commissioners working on a proposal for variable annuities.

"We expect there to be more state activity,” Brown said, adding that FSI is already extremely active on state lobbying. “We are tracking well over 300 bills in the states and had major impact on a number of them.” The group also worked closely to help state securities regulators craft and adopt its compensation disclosure model, which many states have adopted.

FSI has also added a dedicated staff person and new membership management system to help assist its politically active members to become more influential with key figures in order to influence strategic law and policy making.

At the federal level, FSI’s political influence continues to grow. FSI Chairman Dean Harman, who helms Harman Wealth Management in The Woodlands, Texas, had a fundraiser for House Ways and Means Chairman Kevin Brady last year.

It's part of a lobbying effort to obtain explicit, legal independent contractor status for registered rep advisors—a goal that has been on the FSI’s agenda for a number of years now.

“We want to clarify the independent contractor status for independent advisors because, until we do, it looms out there,” Harman said.

FSI is also working to relieve the tax burden for independent advisors who are currently required to pay higher individual tax rates on commission income, rather than lower pass-through rates. Success will require convincing the SEC to modify a current rule that requires commissions, but not fee income, to be paid directly to individuals as income, said Harman.