I think your approach and your counsel advice is adversarial and would not go with this approach. SEC can label you a security if they feel like it and fine you; just be frank about the situation at hand. You better look at the political climate in DC (Trump) and realize there can be some unchecked mavericks at the SEC who can easily operate with some impunity due to distractions in US politics. Exploiting your ICO can be their come-up.
A better option is to work with the SEC and get an exemption for your ICO. They did this with FanDuel/SportsKings on gambling and tell them what you doing is experimental. In addition, if you are in the USA, work with your state government to co-sign your ICO and connect the dots with the SEC. Furthermore, talk to your congressman/senator to explain your approach; drop the libertarian crap others launching ICOs are talking up. You need allies to deal with agencies like the SEC.
Show explicitly you are admitting this is new/experimental but you are making an effort to work with multiple agencies to meet compliance. That is your best route, not what you or your counsel presented above.