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Commission repeals CP31 and directs staff to revise CP22 to recommend written informed consent
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Summary
After extended debate about the role of written informed consent in conflicts-of-interest situations, the commission voted to repeal Position CP31 and asked staff to revise Position CP22 to include guidance, including a recommendation that informed consent be obtained in writing.
The commission debated two related position statements and a rule proposal addressing conflicts of interest and informed consent. Commissioners questioned whether the guidance that had been drafted as Position CP31 should remain on the books given that the proposed rule (6.27) did not pass, and whether elements of CP31 should be integrated into CP22 as a position statement.
Several commissioners emphasized the need to provide industry guidance even if a formal rule was not adopted, and discussed whether the commission should require informed consent to be in writing or only recommend putting informed consent in writing so there is documentation. One commissioner summarized the middle-ground approach: "I think we recommend it be written," and staff was directed to remove references to non-adopted rules and to return CP22 with edited language that advises the industry that written informed consent is recommended and explains the expectations for conflicts and confidential information.
Outcome: The body voted to repeal CP31. Commissioners instructed division staff to revise CP22 to align with the current legal landscape, to remove references to the unadopted rule, and to add a clear recommendation that licensees obtain informed consent in writing; staff will return the revised position statement at the April meeting for further consideration.
Why it matters: The question over whether informed consent must be written affects how brokers handle confidential client information, supervised brokerage relationships, and conflict situations. The commission's guidance will shape enforcement expectations and what evidence is available in later complaints.
