 | The examples and perspective in this article may not represent a worldwide view of the subject.(April 2014) |
Whether providing services as an accountant or auditor, a certified public accountant (CPA) owes a duty of care to the client and third parties who foreseeably rely on the accountant's work. [1] Accountants can be sued for negligence or malpractice in the performance of their duties, and for fraud.
Certified Public Accountants (CPAs) opinions affect their clients and their judgments can further affect investors, stockholders, firm creditors, or even partners. Large public accounting firms perform thousands of audits annually. Ultimately they will find unmodified reports on financial statements that could appear to be misleading. If CPAs fail to modify the audit report on financial statements that are materially misstated, investors and firm creditors may experience substantial losses.
Depending on the jurisdiction, CPAs may be liable for damages based upon common law, statutory law, or both. Common law liability arises from negligence, breach of contract, and fraud. Statutory law liability is the obligation that comes from a certain statute or a law, which is applied, to society. Recoveries from these liabilities vary by their source or “theory”. Some of these theories are:
Due to the risk of liability, CPAs and accounting firms may carry professional liability insurance to provide some protection from legal claims and lawsuits, although some firms choose to self-insure. [4] Concerns about high damage awards and insurance costs have led to proposals to limit liability for public accounting firms. [5]
CPAs have an obligation to their clients to exercise due professional care. With an engagement letter, it provides the client and other third parties with rights of recovery. Therefore, if the CPAs are not performing within the agreement set forth in the contract this will be considered a breach of contract. The clients may also claim negligence against the CPAs if the work was performed but contained errors or was not done professionally. This is considered a tort action.
In order to recover from an auditor under common law negligence theory, the client must prove: [6]
CPAs may defend against a breach of contract if they can prove that the client’s loss occurred because of factors other than negligence by the auditors. If the auditor proves the loss resulted from causes other than the auditor’s negligence, a client may be accused of contributory negligence. If a state follows the doctrine of contributory negligence, the auditor may eliminate their liability to the client based on contributory negligence by the client. Many states do not follow this doctrine. [7] Most states permit a jury to assess the fault and apply the correct percentage of fault to the parties involved. This is called comparative negligence.
Not all suits brought to an auditor are from a direct client. Third parties can also sue an auditor for fraud, in which case a contract (privity) is necessary. In order for a third party to prevail in a case, there are a number of things they must prove. First, the third party must prove that the auditor had a duty to exercise due care. Second, the third party must prove that the auditor breached that duty knowingly. Third, the third party must prove that the auditor's breach was the direct reason for the loss. Finally, the third party must prove that they suffered an actual loss. [8]
In order for the court to decide if the auditor's duty actually extended to the third party, for ordinary negligence, there are four legal approaches each state could follow. First is the Privity approach, which states the auditor is liable to a third party if an existence of a contract is in existence.[ dubious ] This approach was established in Ultramares Corporation v. Touche and is the most limiting approach in respect to scope. [9] Ultramares occurred in 1933 where the defendant CPA distributed an unqualified opinion on the balance sheet of a company. In addition to the CPAs estimations, Ultramares wrote out several loans to the company shortly before the company declared bankruptcy. Ultramares sued the CPA for ordinary negligence. The New York Court of Appeals ruled that CPAs are held accountable for ordinary negligence to their clients and third parties who identify themselves as users of the CPAs reports. [10]
The "near privity" approach was established in Credit Alliance Corp. v. Arthur Andersen & Company. [11] This approach states that the auditor has liability under ordinary negligence if the third party is known to be using the financial statements and there has been some sort of direct communication between the two parties. [12] An example could be the auditor directly giving a report to the bank that will be providing the loan for an actual client.
The "foreseen" or "Restatement Standard" approach was established by the American Law Institute’s (ALI) Second Restatement of Law of Torts . With this approach the auditor is liable to all third parties in which their reliance is foreseen even if the auditor doesn't know the third party. [13] This approach came about due to Rusch Factors, Inc. v. Levin. [14] In this case, the CPA was found accountable for ordinary negligence to the third party who had not been specifically identified but the CPA was aware that the financial statements were to be used by this party.
The "reasonably foreseeable" approach which was created due to Rosenblum v. Adler. [15] This method is very liberal and broad in terms of scope, unlike the privity approach. This system holds an auditor liable to all third parties that rely on financial statements. [16]
Statutory law consists of written laws created by legislative bodies. Lawsuits brought against auditors based on statutory provisions differ from those under common law. Common law theories of liability may evolve or change over time, and interpretation and application may differ between jurisdictions, while statutory law is constrained to a greater degree by the text of the underlying statute.
The two most important laws relating to auditors’ liability are the Securities Act of 1933 and the Securities Exchange Act of 1934. CPAs must also be concerned with the application of the Racketeer Influenced and Corrupt Organizations Act (RICO) and with each state’s blue sky laws (which regulate the issuance and trading of securities within a certain state). [17]
The Securities Act of 1933 requires a company to register with the Securities and Exchange Commission (SEC). In order to complete registration, the company must include audited financial statements and numerous other disclosures. If the registration statement was to be found materially misstated, both the company and its auditors may be held liable. Those who initially purchase a security offered for sale are the only ones protected by the 1933 Act. These security purchasers, known as the plaintiffs, only need to prove a loss was constant and that the registration statement was misleading. They do not need to prove that they relied upon the registration or that the auditors were negligent. In order for an auditor to avoid liability, they must provide proof that the audit was performed with due diligence, the plaintiff’s losses were not caused by misstated financial statements, the plaintiffs knew of the misstatement at the time the securities were purchased, or the statute of limitations had expired (one year after the discovery of the misstatement, but no more than three years after the security was offered to the public). [18] The due diligence defense is the defense that most auditors raise, even though it is difficult for auditors to prove their innocence. The standing precedent on interpretation of due diligence is Escott v. BarChris Construction Corporation, decided in 1968.
The Securities Exchange Act of 1934 requires all companies under SEC jurisdiction to file an annual audit and have quarterly review of financial statements. While the 1933 Act creates liability only to those investors involved in the initial distribution of public offerings, the 1934 Act increases that responsibility to subsequent purchasers and sellers of the stock. This act provides absolute protection to original and subsequent purchasers and sellers of securities. These plaintiffs must prove that:
According to Ernst & Ernst v. Hochfelder, [19] plaintiffs must show proof of scienter (the intent to deceive, manipulate, or defraud). In order to avoid liability, auditors must prove they are normally able to establish “good faith” unless they have been guilty of gross negligence or fraud. [20] In addition, the auditors may rely on causation, meaning that the losses experienced by the plaintiffs were caused by factors other than the auditor’s behavior.
In 1970, Congress established the Racketeer Influenced and Corrupt Organizations Act (RICO). This act was established as a means of making sure that CPAs who may have been involved with any illegal mob or racketeering activity were brought to justice. The RICO Act allows for triple damages in civil cases that were brought under the act. This later became an issue of liability in Reves vs. Ernst & Young. [21] This was a significant court case, in that, the court decided that for accountants to be liable for damages of a company under this act, they must have participated in the operation or management of the organization. This also led to the Private Securities Litigation Reform Act which essentially eliminated securities fraud as a civil action under RICO unless prior conviction. [22]
The Continental Vending case (also known as United States v. Simon) [23] has set the precedent of severe charges for accountants. In this case, the U.S. court of appeals convicted three CPAs of gross negligence. Although the CPAs had proof to establish that they complied with U.S. generally accepted accounting principles and the U.S. generally accepted accounting standards, Mano states that the district court judge instructed the jury that mere compliance with professional accounting standards was not a complete defense. This led to the conviction of the three CPAs, who were later pardoned by President Richard Nixon. [24]
As the accounting standards and principles evolve, it is essential for those in regulation, of litigation and in the accounting profession to be aware of the principles and the potential risks affiliated with the system concerning liability. The Securities and Exchange Commission (SEC) along with the Public Company Accounting Oversight Board (PCAOB) have implemented consequences for those who are involved in auditing fraud and any other illegal or unethical behavior in the field. In 1995, the SEC established the Private Securities Litigation Reform Act which in essence mandated auditors to have even stricter guidelines as they pertains to any fraudulent or misleading behavior of their clients. [25] This act simply states that the auditors must promptly report any illegal acts of its clients to the company’s board of directors and if severe enough, to the SEC. According to the guidelines of this Act, auditors are relieved of sanctions if they report required information about clients to the SEC in a timely manner.
Negligence per se is a doctrine in US law whereby an act is considered negligent because it violates a statute. The doctrine is effectively a form of strict liability.
Negligence is a failure to exercise appropriate and/or ethical ruled care expected to be exercised amongst specified circumstances. The area of tort law known as negligence involves harm caused by failing to act as a form of carelessness possibly with extenuating circumstances. The core concept of negligence is that people should exercise reasonable care in their actions, by taking account of the potential harm that they might foreseeably cause to other people or property.
A tort is a civil wrong that causes a claimant to suffer loss or harm, resulting in legal liability for the person who commits the tortious act. Tort law can be contrasted with criminal law, which deals with criminal wrongs that are punishable by the state. While criminal law aims to punish individuals who commit crimes, tort law aims to compensate individuals who suffer harm as a result of the actions of others. Some wrongful acts, such as assault and battery, can result in both a civil lawsuit and a criminal prosecution in countries where the civil and criminal legal systems are separate. Tort law may also be contrasted with contract law, which provides civil remedies after breach of a duty that arises from a contract. Obligations in both tort and criminal law are more fundamental and are imposed regardless of whether the parties have a contract.
An accountant is a practitioner of accounting or accountancy. Accountants who have demonstrated competency through their professional associations' certification exams are certified to use titles such as Chartered Accountant, Chartered Certified Accountant or Certified Public Accountant, or Registered Public Accountant. Such professionals are granted certain responsibilities by statute, such as the ability to certify an organization's financial statements, and may be held liable for professional misconduct. Non-qualified accountants may be employed by a qualified accountant, or may work independently without statutory privileges and obligations.
An audit is an "independent examination of financial information of any entity, whether profit oriented or not, irrespective of its size or legal form when such an examination is conducted with a view to express an opinion thereon." Auditing also attempts to ensure that the books of accounts are properly maintained by the concern as required by law. Auditors consider the propositions before them, obtain evidence, and evaluate the propositions in their auditing report.
A financial audit is conducted to provide an opinion whether "financial statements" are stated in accordance with specified criteria. Normally, the criteria are international accounting standards, although auditors may conduct audits of financial statements prepared using the cash basis or some other basis of accounting appropriate for the organization. In providing an opinion whether financial statements are fairly stated in accordance with accounting standards, the auditor gathers evidence to determine whether the statements contain material errors or other misstatements.
Forensic accounting, forensic accountancy or financial forensics is the specialty practice area of accounting that investigates whether firms engage in financial reporting misconduct. Forensic accountants apply a range of skills and methods to determine whether there has been financial reporting misconduct.
Hedley Byrne & Co Ltd v Heller & Partners Ltd [1964] AC 465 is an English tort law case on economic loss in English tort law resulting from a negligent misstatement. Prior to the decision, the notion that a party may owe another a duty of care for statements made in reliance had been rejected, with the only remedy for such losses being in contract law. The House of Lords overruled the previous position, in recognising liability for pure economic loss not arising from a contractual relationship, applying to commercial negligence the principle of "assumption of responsibility".
In tort law, a duty of care is a legal obligation that is imposed on an individual, requiring adherence to a standard of reasonable care to avoid careless acts that could foreseeably harm others, and lead to claim in negligence. It is the first element that must be established to proceed with an action in negligence. The claimant must be able to show a duty of care imposed by law that the defendant has breached. In turn, breaching a duty may subject an individual to liability. The duty of care may be imposed by operation of law between individuals who have no current direct relationship but eventually become related in some manner, as defined by common law.
An external auditor performs an audit, in accordance with specific laws or rules, of the financial statements of a company, government entity, other legal entity, or organization, and is independent of the entity being audited. Users of these entities' financial information, such as investors, government agencies, and the general public, rely on the external auditor to present an unbiased and independent audit report.
Tortious interference, also known as intentional interference with contractual relations, in the common law of torts, occurs when one person intentionally damages someone else's contractual or business relationships with a third party, causing economic harm. As an example, someone could use blackmail to induce a contractor into breaking a contract; they could threaten a supplier to prevent them from supplying goods or services to another party; or they could obstruct someone's ability to honor a contract with a client by deliberately refusing to deliver necessary goods.
Caparo Industries PLC v Dickman[1990] UKHL 2 is a leading English tort law case on the test for a duty of care. The House of Lords, following the Court of Appeal, set out a "three-fold test". In order for a duty of care to arise in negligence:
In the English law of tort, professional negligence is a subset of the general rules on negligence to cover the situation in which the defendant has represented him or herself as having more than average skills and abilities. The usual rules rely on establishing that a duty of care is owed by the defendant to the claimant, and that the defendant is in breach of that duty. The standard test of breach is whether the defendant has matched the abilities of a reasonable person. But, by virtue of the services they offer and supply, professional people hold themselves out as having more than average abilities. This specialised set of rules determines the standards against which to measure the legal quality of the services actually delivered by those who claim to be among the best in their fields of expertise.
Canadian tort law is composed of two parallel systems: a common law framework outside Québec and a civil law framework within Québec. Outside Québec, Canadian tort law originally derives from that of England and Wales but has developed distinctly since Canadian Confederation in 1867 and has been influenced by jurisprudence in other common law jurisdictions. Meanwhile, while private law as a whole in Québec was originally derived from that which existed in France at the time of Québec's annexation into the British Empire, it was overhauled and codified first in the Civil Code of Lower Canada and later in the current Civil Code of Quebec, which codifies most elements of tort law as part of its provisions on the broader law of obligations. As most aspects of tort law in Canada are the subject of provincial jurisdiction under the Canadian Constitution, tort law varies even between the country's common law provinces and territories.
Ultramares Corporation v. Touche, 174 N.E. 441 (1932) is a US tort law case regarding negligent misstatement, decided by Cardozo, C.J. It contained the now famous line on "floodgates" that the law should not admit "to a liability in an indeterminate amount for an indeterminate time to an indeterminate class."
Forensic accountants are experienced auditors, accountants, and investigators of legal and financial documents that are hired to look into possible suspicions of fraudulent activity within a company; or are hired by a company who may just want to prevent fraudulent activities from occurring. They also provide services in areas such as accounting, antitrust, damages, analysis, valuation, and general consulting. Forensic accountants have also been used in divorces, bankruptcy, insurance claims, personal injury claims, fraudulent claims, construction, royalty audits, and tracking terrorism by investigating financial records. Many forensic accountants work closely with law enforcement personnel and lawyers during investigations and often appear as expert witnesses during trials.
Candler v Crane, Christmas & Co [1951] 2 KB 164 is an English tort law case on negligent misstatement.
Chysky v. Drake Bros. Co., 235 N.Y. 468, 139 N.E. 576 (1922), was a products liability case before the New York Court of Appeals. The Court held that a plaintiff cannot recover from a defendant based on implied warranty when she does not have contractual privity with him; thus, a plaintiff cannot recover from a defendant who sold her employer food unfit for consumption, because the defendant's implied warranty extended only to the employer.
The Model Audit Rule 205, Model Audit Rule, or MAR 205 are the commonly applied terms for the Annual Financial Reporting Model Regulation. Model Audit Rule is a financial reporting regulation applicable to insurance companies, and borrows significantly from the Sarbanes Oxley Act of 2002. The Model Audit Rule is co-developed by the American Institute of Certified Public Accountants (“AICPA”) and National Association of Insurance Commissioners (“NAIC”) and issued by NAIC with revisions in 2006 and has taken effect in 2010.
Deloitte & Touche v Livent Inc , 2017 SCC 63 is a leading case of the Supreme Court of Canada concerning the duty of care that auditors have toward their clients during the course of a professional engagement.