WSR 08-09-127

PROPOSED RULES

DEPARTMENT OF

FINANCIAL INSTITUTIONS
(Securities Division)

[ Filed April 22, 2008, 1:16 p.m. ]

     Original Notice.

     Preproposal statement of inquiry was filed as WSR 07-15-012.

     Title of Rule and Other Identifying Information: The securities division proposes to promulgate a new chapter in its rules to regulate the use of senior designations and certifications that is based on the model rule on the use of senior-specific certifications and professional designations adopted by the North American Securities Administrators Association, Inc. on March 20, 2008. The division also proposes to amend current rules that list dishonest and unethical business practices for investment advisers, broker-dealers and their representatives to include a provision clarifying that it is a dishonest or unethical business practice to use a term or abbreviation thereof in a manner that misleadingly states or implies that a person has special expertise, certification, or training in financial planning, including the misleading use of a senior certification or designation. Text of the proposed new chapter and of the amendments to the division's existing rules is attached to this notice.

     Hearing Location(s): Department of Financial Institutions, 150 Israel Road S.W., Room 319, Tumwater, WA 98501, on May 27, 2008, at 1:00 p.m.

     Date of Intended Adoption: May 28, 2008.

     Submit Written Comments to: Faith L. Anderson, Department of Financial Institutions, Securities Division, P.O. Box 9033, Olympia, WA 98507-9033, e-mail fanderson@dfi.wa.gov, fax (360) 704-6480, by May 27, 2008.

     Assistance for Persons with Disabilities: Contact Carolyn Hawkey, P.O. Box 9033, Olympia, WA 98507-9033, by May 20, 2008, TTY (360) 664-8126 or (360) 902-8774.

     Purpose of the Proposal and Its Anticipated Effects, Including Any Changes in Existing Rules: The securities division proposes to adopt new rules and amend its existing rules to address the misleading use of professional designations that state or imply that a person has special expertise, certification, or training in financial planning by investment advisers, broker-dealers and their representatives who do not possess special expertise, certification or training. The securities division proposes to adopt, as a new chapter in its regulations, rules regulating the use of senior designations and certifications that are based on the model rule on the use of senior-specific certifications and professional designations adopted by the North American Securities Administrators Association, Inc. ("NASAA") on March 20, 2008. The proposed rules contain the following provisions:

A purpose statement;
A provision making it a dishonest or unethical practice within the meaning of RCW 21.20.020 (1)(c) or 21.20.110 (1)(g) to use senior designations or certifications in a misleading manner;
Examples of misleading uses;
A presumptive exception for designations awarded by recognized designating or certifying organizations;
Factors to determine whether a term is a senior designation or certification;
A presumptive exception for certain job titles; and
A nonexclusivity provision.
     In addition, the division has proposed to amend the list of dishonest and unethical practices provisions applicable to investment advisers, broker-dealers and their representatives set forth in WAC 460-24A-220, 460-21B-060, and 460-22B-090 to clarify that the use of any term or abbreviation thereof in a manner that misleading[ly] states or implies that a person has special expertise, certification, or training in financial planning is prohibited, including the misleading use of senior designations or certifications.

     Reasons Supporting Proposal: These proposals should be adopted to clarify that the misleading use of designations that state or imply that a person has special expertise, certification, or training in financial planning by investment advisers, broker-dealers and their representatives is prohibited and to maintain uniformity in this area with other states that adopt the NASAA model rule.

     Statutory Authority for Adoption: RCW 21.20.450, 21.20.020 (1)(c), 21.20.110 (1)(g).

     Statute Being Implemented: Chapter 21.20 RCW.

     Rule is not necessitated by federal law, federal or state court decision.

     Name of Proponent: Department of financial institutions, securities division, governmental.

     Name of Agency Personnel Responsible for Drafting: Faith L. Anderson, 150 Israel Road S.W., Olympia, WA 98501, (360) 725-7825; Implementation: Scott Jarvis, 150 Israel Road S.W., Olympia, WA 98501, (360) 902-8700; and Enforcement: Michael E. Stevenson, 150 Israel Road S.W., Olympia, WA 98501, (360) 902-8824.

     No small business economic impact statement has been prepared under chapter 19.85 RCW. The Securities Act of Washington, chapter 21.20 RCW, and the existing rules adopted thereunder already effectively prohibit the use of any term or abbreviation thereof in a manner that misleading[ly] states or implies that a person has special expertise, certification, or training in financial planning, including the misleading use of a senior designation or certification. Therefore, the adoption of the new rules and amendments to existing rules proposed in this notice will not add any additional compliance burdens for those subject to the rules but will provide greater clarity that may reduce compliance costs for those subject to these rules. If any costs are borne by businesses in connection with the proposed rules, these costs will be no more than minor. As such, the agency is not required to prepare a small business economic impact statement under RCW 19.85.030.

     A cost-benefit analysis is not required under RCW 34.05.328. The department of financial institutions is not one of the agencies listed in RCW 34.05.328.

April 22, 2008

Scott Jarvis

Director

OTS-1476.3

Chapter 460-25A WAC

USE OF SENIOR DESIGNATIONS


NEW SECTION
WAC 460-25A-010   Purpose of chapter.   The rules in this chapter apply to the use of senior certifications and designations.

[]


NEW SECTION
WAC 460-25A-020   Use of Senior-Specific Certifications and Professional Designations.   (1) Consistent with the Model Rule on the Use of Senior-Specific Certifications and Professional Designations adopted by the North American Securities Administrators Association, Inc. on March 20, 2008, the use of a senior-specific certification or designation by any person in connection with the offer, sale, or purchase of securities, or the provision of advice as to the value of or the advisability of investing in, purchasing, or selling securities, either directly or indirectly or through publications or writings, or by issuing or promulgating analyses or reports relating to securities, that indicates or implies that the user has special certification or training in advising or servicing senior citizens or retirees, in such a way as to mislead any person shall be a dishonest and unethical practice within the meaning of RCW 21.20.020 (1)(c) and 21.20.110 (1)(g).

     (2) The prohibited use of such certifications or professional designations includes, but is not limited to, the following:

     (a) Use of a certification or professional designation by a person who has not actually earned or is otherwise ineligible to use such certification or designation;

     (b) Use of a nonexistent or self-conferred certification or professional designation;

     (c) Use of a certification or professional designation that indicates or implies a level of occupational qualifications obtained through education, training, or experience that the person using the certification or professional designation does not have; and

     (d) Use of a certification or professional designation that was obtained from a designating or certifying organization that:

     (i) Is primarily engaged in the business of instruction in sales and/or marketing;

     (ii) Does not have reasonable standards or procedures for assuring the competency of its designees or certificants;

     (iii) Does not have reasonable standards or procedures for monitoring and disciplining its designees or certificants for improper or unethical conduct; or

     (iv) Does not have reasonable continuing education requirements for its designees or certificants in order to maintain the designation or certificate.

[]


NEW SECTION
WAC 460-25A-030   Designations awarded by recognized designating or certifying organizations.   There is a rebuttable presumption that a designating or certifying organization is not disqualified solely for purposes of WAC 460-25A-020 (2)(d) when the organization has been accredited by:

     (1) The American National Standards Institute;

     (2) The National Commission for Certifying Agencies; or

     (3) An organization that is on the United States Department of Education's list entitled "Accrediting Agencies Recognized for Title IV Purposes" and the designation or credential issued therefrom does not primarily apply to sales and/or marketing.

[]


NEW SECTION
WAC 460-25A-040   Factors considered to determine whether a term is a senior-specific certification or professional designation.   In determining whether a combination of words (or an acronym standing for a combination of words) constitutes a certification or professional designation indicating or implying that a person has special certification or training in advising or servicing senior citizens or retirees, factors to be considered shall include:

     (1) Use of one or more words such as a "senior," "retirement," "elder," or like words, combined with one or more words such as "certified," "registered," "chartered," "adviser," "specialist," "consultant," "planner," or like words, in the name of the certification or professional designation; and

     (2) The manner in which those words are combined.

[]


NEW SECTION
WAC 460-25A-050   Exception for certain job titles.   (1) There is a rebuttable presumption that a certification or professional designation does not include a job title within an organization that is licensed or registered by a state or federal financial services regulatory agency, when that job title:

     (a) Indicates seniority or standing within the organization; or

     (b) Specifies an individual's area of specialization within the organization.

     (2) For purposes of this section, financial services regulatory agency includes, but is not limited to, an agency that regulates broker-dealers, investment advisers, or investment companies as defined under the Investment Company Act of 1940.

[]


NEW SECTION
WAC 460-25A-060   Application of chapter not exclusive.   Nothing in this chapter shall limit the director's authority to enforce existing provisions of law.

[]

OTS-1477.2


AMENDATORY SECTION(Amending WSR 02-19-093, filed 9/17/02, effective 10/18/02)

WAC 460-21B-060   Dishonest or unethical business practices -- Broker-dealers.   The phrase "dishonest or unethical practices" as used in RCW 21.20.110 (1)(g) as applied to broker-dealers is hereby defined to include any of the following:

     (1) Engaging in a pattern of unreasonable and unjustifiable delays in the delivery of securities purchased by any of its customers and/or in the payment upon request of free credit balances reflecting completed transactions of any of its customers;

     (2) Inducing trading in a customer's account which is excessive in size or frequency in view of the financial resources and character of the account;

     (3) Recommending to a customer to purchase, sell or exchange any security without reasonable grounds to believe that such transaction or recommendation is suitable for the customer based upon reasonable inquiry concerning the customer's investment objectives, financial situation and needs, and any other relevant information known by the broker-dealer;

     (4) Executing a transaction on behalf of a customer without authorization to do so;

     (5) Exercising any discretionary power in effecting a transaction for a customer's account without first obtaining written discretionary authority from the customer, unless the discretionary power relates solely to the time and/or price for the execution of orders;

     (6) Executing any transaction in a margin account without securing from the customer a properly executed written margin agreement promptly after the initial transaction in the account;

     (7) Failing to segregate customers' free securities or securities held in safekeeping;

     (8) Hypothecating a customer's securities without having a lien thereon unless the broker-dealer secures from the customer a properly executed written consent promptly after the initial transaction, except as permitted by rules of the securities and exchange commission;

     (9) Entering into a transaction with or for a customer at a price not reasonably related to the current market price of the security or receiving an unreasonable commission or profit;

     (10) Failing to furnish to a customer purchasing securities in an offering, no later than the date of confirmation of the transaction, a final or preliminary prospectus, and if the latter, failing to furnish a final prospectus within a reasonable period after the effective date of the offering;

     (11) Charging unreasonable and inequitable fees for services performed, including miscellaneous services such as collection of moneys due for principal, dividends or interest, exchange or transfer of securities, appraisals, safekeeping, or custody of securities and other services related to its securities business;

     (12) Offering to buy from or sell to any person any security at a stated price unless such broker-dealer is prepared to purchase or sell, as the case may be, at such price and under such conditions as are stated at the time of such offer to buy or sell;

     (13) Representing that a security is being offered to a customer "at the market" or a price relevant to the market price unless such broker-dealer knows or has reasonable grounds to believe that a market for such security exists other than that made, created or controlled by such broker-dealer, or by any person for whom he/she is acting or with whom he/she is associated in such distribution, or any person controlled by, controlling or under common control with such broker-dealer;

     (14) Effecting any transaction in, or inducing the purchase or sale of, any security by means of any manipulative, deceptive or fraudulent device, practice, plan, program, design or contrivance, which may include but not be limited to:

     (a) Effecting any transaction in a security which involves no change in the beneficial ownership thereof;

     (b) Entering an order or orders for the purchase or sale of any security with the knowledge that an order or orders of substantially the same size, at substantially the same price, for the sale of any such security, has been or will be entered by or for the same or different parties for the purpose of creating a false or misleading appearance of active trading in the security or a false or misleading appearance with respect to the market for the security; provided, however, nothing in this subsection shall prohibit a broker-dealer from entering bona fide agency cross transactions for its customer;

     (c) Effecting, alone or with one or more other persons, a series of transactions in any security creating actual or apparent active trading in such security or raising or depressing the price of such security, for the purpose of inducing the purchase or sale of such security by others;

     (15) Guaranteeing a customer against loss in any securities account of such customer carried by the broker-dealer or in any securities transaction effected by the broker-dealer with or for such customer;

     (16) Publishing or circulating, or causing to be published or circulated, any notice, circular, advertisement, newspaper article, investment service, or communication of any kind which purports to report any transaction as a purchase or sale of any security unless such broker-dealer believes that such transaction was a bona fide purchase or sale of such security; or which purports to quote the bid price or asked price for any security, unless such broker-dealer believes that such quotation represents a bona fide bid for, or offer of, such security;

     (17) Using any advertising or sales presentation in such a fashion as to be deceptive or misleading. An example of such practice would be a distribution of any nonfactual data, material or presentation based on conjecture, unfounded or unrealistic claims or assertions in any brochure, flyer, or display by words, pictures, graphs or otherwise designed to supplement, detract from, supersede or defeat the purpose or effect of any prospectus or disclosure;

     (18) Failing to disclose that the broker-dealer is controlled by, controlling, affiliated with or under common control with the issuer of any security before entering into any contract with or for a customer for the purchase or sale of security, the existence of such control to such customer, and if such disclosure is not made in writing, it shall be supplemented by the giving or sending of written disclosure at or before the completion of the transaction;

     (19) Failing to make bona fide public offering of all of the securities allotted to a broker-dealer for distribution, whether acquired as an underwriter, a selling group member or from a member participating in the distribution as an underwriter or selling group member;

     (20) Failure or refusal to furnish a customer, upon reasonable request, information to which he is entitled, or to respond to a formal written request or complaint;

     (21) In connection with the solicitation of a sale or purchase of an OTC non-NASDAQ security, failing to promptly provide the most current prospectus or the most recently filed periodic report filed under Section 13 of the Securities Exchange Act, when requested to do so by a customer;

     (22) Marking any order ticket or confirmation as unsolicited when in fact the transaction is solicited;

     (23) For any month in which activity has occurred in a customer's account, but in no event less than every three months, failing to provide each customer with a statement of account which with respect to all OTC non-NASDAQ equity securities in the account, contains a value for each such security based on the closing market bid on a date certain: Provided, That this subsection shall apply only if the firm has been a market maker in such security at any time during the month in which the monthly or quarterly statement is issued;

     (24) Failing to comply with any applicable provision of the Conduct Rules of the National Association of Securities Dealers or any applicable fair practice or ethical standard promulgated by the Securities and Exchange Commission or by a self-regulatory organization approved by the Securities and Exchange Commission; ((or))

     (25) Any acts or practices enumerated in WAC 460-21B-010; or

     (26) Using any term or abbreviation thereof in a manner that misleadingly states or implies that a person has special expertise, certification, or training in financial planning, including, but not limited to, the misleading use of a senior-specific certification or designation as set forth in WAC 460-25A-020.

     The conduct set forth above is not inclusive. Engaging in other conduct such as forgery, embezzlement, nondisclosure, incomplete disclosure or misstatement of material facts, or manipulative or deceptive practices shall also be grounds for denial, suspension or revocation of registration.

[Statutory Authority: RCW 21.20.450 and 21.20.110 (1)(g). 02-19-093, § 460-21B-060, filed 9/17/02, effective 10/18/02. Statutory Authority: RCW 21.20.450(1). 99-12-043, § 460-21B-060, filed 5/26/99, effective 7/9/99. Statutory Authority: RCW 21.20.070 and 21.20.450. 95-16-026, § 460-21B-060, filed 7/21/95, effective 8/21/95.]

OTS-1478.2


AMENDATORY SECTION(Amending WSR 02-19-093, filed 9/17/02, effective 10/18/02)

WAC 460-22B-090   Dishonest and unethical business practices-salespersons.   The phrase "dishonest or unethical practices" as used in RCW 21.20.110 (1)(g) as applied to salespersons, is hereby defined to include any of the following:

     (1) Engaging in the practice of lending or borrowing money or securities from a customer, or acting as a custodian for money, securities or an executed stock power of a customer;

     (2) Effecting securities transactions not recorded on the regular books or records of the broker-dealer which the agent represents, unless the transactions are authorized in writing by the broker-dealer prior to execution of the transaction;

     (3) Establishing or maintaining an account containing fictitious information in order to execute transactions which would otherwise be prohibited;

     (4) Sharing directly or indirectly in profits or losses in the account of any customer without the written authorization of the customer and the broker-dealer which the agent represents;

     (5) Dividing or otherwise splitting the agent's commissions, profits or other compensation from the purchase or sale of securities with any person not also registered for the same broker-dealer, or for a broker-dealer under direct or indirect common control;

     (6) Inducing trading in a customer's account which is excessive in size or frequency in view of the financial resources and character of the account;

     (7) Recommending to a customer the purchase, sale or exchange of any security without reasonable grounds to believe that such transaction or recommendation is suitable for the customer based upon reasonable inquiry concerning the customer's investment objectives, financial situation and needs, and any other relevant information known by the broker-dealer;

     (8) Executing a transaction on behalf of a customer without authorization to do so;

     (9) Exercising any discretionary power in effecting a transaction for a customer's account without first obtaining written discretionary authority from the customer, unless the discretionary power relates solely to the time and/or price for the execution of orders;

     (10) Executing any transaction in a margin account without securing from the customer a properly executed written margin agreement promptly after the initial transaction in the account;

     (11) Entering into a transaction with or for a customer at a price not reasonably related to the current market price of the security or receiving an unreasonable commission or profit;

     (12) Failing to furnish to a customer purchasing securities in an offering, no later than the date of confirmation of the transaction, a final or preliminary prospectus, and if the latter, failing to furnish a final prospectus within a reasonable period after the effective date of the offering;

     (13) Effecting any transaction in, or inducing the purchase or sale of, any security by means of any manipulative, deceptive or fraudulent device, practice, plan, program, design or contrivance, which may include but is not ((be)) limited to:

     (a) Effecting any transaction in a security which involves no change in the beneficial ownership thereof;

     (b) Entering an order or orders for the purchase or sale of any security with the knowledge that an order or orders of substantially the same size, at substantially the same time and substantially the same price, for the sale of any such security, has been or will be entered by or for the same or different parties for the purpose of creating a false or misleading appearance of active trading in the security or a false or misleading appearance with respect to the market for the security;

     (c) Effecting, alone or with one or more other persons, a series of transactions in any security creating actual or apparent active trading in such security or raising or depressing the price of such security, for the purpose of inducing the purchase or sale of such security by others;

     (14) Guaranteeing a customer against loss in any securities account for such customer carried by the broker-dealer or in any securities transaction effected by the broker-dealer with or for such customer;

     (15) Publishing or circulating, or causing to be published or circulated, any notice, circular, advertisement, newspaper article, investment service, or communication of any kind which purports to report any transaction as a purchase or sale of any security unless such broker-dealer believes that such transaction was a bona fide purchase or sale of such security; or which purports to quote the bid price or asked price for any security, unless such broker-dealer believes that such quotation presents a bona fide bid for, or offer of, such security;

     (16) Using any advertising or sales presentation in such a fashion as to be deceptive or misleading. An example of such practice would be a distribution of any nonfactual data, material or presentation based on conjecture, unfounded or unrealistic claims or assertions ((of)) in any brochure, flyer, or display by words, pictures, graphs or otherwise designed to supplement, detract from, supersede or defeat the purpose or effect of any prospectus or disclosure;

     (17) In connection with the solicitation of a sale or purchase of an OTC non-NASDAQ security, failing to promptly provide the most current prospectus or the most recently filed periodic report filed under Section 13 of the Securities Exchange Act, when requested to do so by a customer;

     (18) Marking any order ticket or confirmation as unsolicited when in fact the transaction is solicited;

     (19) Failing to comply with any applicable provision of the Conduct Rules of the National Association of Securities Dealers or any applicable fair practice or ethical standard promulgated by the Securities and Exchange Commission or by a self-regulatory organization approved by the Securities and Exchange Commission; ((or))

     (20) Any act or practice enumerated in WAC 460-21B-010; or

     (21) Using any term or abbreviation thereof in a manner that misleadingly states or implies that a person has special expertise, certification, or training in financial planning, including, but not limited to, the misleading use of a senior-specific certification or designation as set forth in WAC 460-25A-020.

     The conduct set forth above is not inclusive. Engaging in other conduct such a forgery, embezzlement, nondisclosure, incomplete disclosure or misstatement of material facts, or manipulative or deceptive practices shall also be grounds for denial, suspension or revocation of registration.

[Statutory Authority: RCW 21.20.450 and 21.20.110 (1)(g). 02-19-093, § 460-22B-090, filed 9/17/02, effective 10/18/02. Statutory Authority: RCW 21.20.450(1). 99-12-043, § 460-22B-090, filed 5/26/99, effective 7/9/99. Statutory Authority: RCW 21.20.450. 97-16-050, § 460-22B-090, filed 7/31/97, effective 8/31/97. Statutory Authority: RCW 21.20.070 and 21.20.450. 95-16-026, § 460-22B-090, filed 7/21/95, effective 8/21/95.]

OTS-1481.1


AMENDATORY SECTION(Amending WSR 99-03-051, filed 1/15/99, effective 2/15/99)

WAC 460-24A-220   Unethical business practices -- Investment advisers and federal covered advisers.   A person who is an investment adviser or a federal covered adviser is a fiduciary and has a duty to act primarily for the benefit of its clients. The provisions of this subsection apply to federal covered advisers to the extent that the conduct alleged is fraudulent, deceptive, or as otherwise permitted by the National Securities Markets Improvement Act of 1996 (Pub. L. No. 104-290). While the extent and nature of this duty varies according to the nature of the relationship ((between an investment adviser and its)) with the client((s)) and the circumstances of each case, in accordance with RCW 21.20.020 (1)(c) and 21.20.110 (1)(g) an investment adviser or a federal covered adviser shall not engage in dishonest or unethical business practices, including the following:

     (1) Recommending to a client to whom investment supervisory, management or consulting services are provided the purchase, sale or exchange of any security without reasonable grounds to believe that the recommendation is suitable for the client on the basis of information furnished by the client after reasonable inquiry concerning the client's investment objectives, financial situation and needs, and any other information known by the investment adviser.

     (2) Exercising any discretionary power in placing an order for the purchase or sale of securities for a client without obtaining written discretionary authority from the client within ten business days after the date of the first transaction placed pursuant to oral discretionary authority, unless the discretionary power relates solely to the price at which, or the time when, an order involving a definite amount of a specified security shall be executed, or both.

     (3) Inducing trading in a client's account that is excessive in size or frequency in view of the financial resources, investment objectives and character of the account in light of the fact that an adviser in such situations can directly benefit from the number of securities transactions effected in a client's account. The rule appropriately forbids an excessive number of transaction orders to be induced by an adviser for a "customer's account."

     (4) Placing an order to purchase or sell a security for the account of a client without authority to do so.

     (5) Placing an order to purchase or sell a security for the account of a client upon instruction of a third party without first having obtained a written third-party trading authorization from the client.

     (6) Borrowing money or securities from a client unless the client is a broker-dealer, an affiliate of the investment adviser, or a financial institution engaged in the business of loaning funds.

     (7) Loaning money to a client unless the investment adviser is a financial institution engaged in the business of loaning funds or the client is an affiliate of the investment adviser.

     (8) To misrepresent to any advisory client, or prospective advisory client, the qualifications of the investment adviser or any employees of the investment adviser, or to misrepresent the nature of the advisory services being offered or fees to be charged for such service, or to omit to state a material fact necessary to make the statements made regarding qualifications, services or fees, in light of the circumstances under which they are made, not misleading.

     (9) Providing a report or recommendation to any advisory client prepared by someone other than the adviser without disclosing that fact. (This prohibition does not apply to a situation where the adviser uses published research reports or statistical analyses to render advice or where an adviser orders such a report in the normal course of providing service.)

     (10) Charging a client an unreasonable advisory fee.

     (11) Failing to disclose to clients in writing before any advice is rendered any material conflict of interest relating to the adviser or any of its employees which could reasonably be expected to impair the rendering of unbiased and objective advice including:

     (a) Compensation arrangements connected with advisory services to clients which are in addition to compensation from such clients for such services; and

     (b) Charging a client an advisory fee for rendering advice when a commission for executing securities transactions pursuant to such advice will be received by the adviser or its employees.

     (12) Guaranteeing a client that a specific result will be achieved (gain or no loss) with advice which will be rendered.

     (13) Publishing, circulating or distributing any advertisement which does not comply with Rule 206(4)-1 under the Investment Advisers Act of 1940.

     (14) Disclosing the identity, affairs, or investments of any client unless required by law to do so, or unless consented to by the client.

     (15) Taking any action, directly or indirectly, with respect to those securities or funds in which any client has any beneficial interest, where the investment adviser has custody or possession of such securities or funds when the adviser's action is subject to and does not comply with the requirements of Reg. 206(4)-2 under the Investment Advisers Act of 1940.

     (16) Entering into, extending or renewing any investment advisory contract unless such contract is in writing and discloses, in substance, the services to be provided, the term of the contract, the advisory fee, the formula for computing the fee, the amount of prepaid fee to be returned in the event of contract termination or nonperformance, whether the contract grants discretionary power to the adviser and that no assignment of such contract shall be made by the investment adviser without the consent of the other party to the contract.

     (17) Failing to establish, maintain, and enforce written policies and procedures reasonably designed to prevent the misuse of material nonpublic information contrary to the provisions of Section 204A of the Investment Advisers Act of 1940.

     (18) Entering into, extending, or renewing any advisory contract contrary to the provisions of section 205 of the Investment Advisers Act of 1940. This provision shall apply to all advisers registered or required to be registered under the Securities Act of Washington, chapter 21.20 RCW, notwithstanding whether such adviser would be exempt from federal registration pursuant to section 203(b) of the Investment Advisers Act of 1940.

     (19) To indicate, in an advisory contract, any condition, stipulation, or provisions binding any person to waive compliance with any provision of the Securities Act of Washington, chapter 21.20 RCW, or of the Investment Advisers Act of 1940, or any other practice contrary to the provisions of section 215 of the Investment Advisers Act of 1940.

     (20) Engaging in any act, practice, or course of business which is fraudulent, deceptive, or manipulative ((in)) contrary to the provisions of section 206(4) of the Investment Advisers Act of 1940, notwithstanding the fact that such investment adviser is not registered or required to be registered under section 203 of the Investment Advisers Act of 1940.

     (21) Engaging in conduct or any act, indirectly or through or by any other person, which would be unlawful for such person to do directly under the provisions of the Securities Act of Washington, chapter 21.20 RCW, or any rule or regulation thereunder.

     (22) Using any term or abbreviation thereof in a manner that misleadingly states or implies that a person has special expertise, certification, or training in financial planning, including, but not limited to, the misleading use of a senior-specific certification or designation as set forth in WAC 460-25A-020.

     The conduct set forth above is not inclusive. Engaging in other conduct such as nondisclosure, incomplete disclosure, or deceptive practices shall be deemed an unethical business practice. The federal statutory and regulatory provisions referenced herein shall apply to investment advisers and federal covered advisers, to the extent permitted by the National Securities Markets Improvement Act of 1996 (Pub. L. No. 104-290).

[Statutory Authority: RCW 21.20.450 and 21.20.100. 99-03-051, § 460-24A-220, filed 1/15/99, effective 2/15/99. Statutory Authority: RCW 21.20.450. 85-23-063 (Order SDO-220-85), § 460-24A-220, filed 11/19/85.]

© Washington State Code Reviser's Office