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Legal Liability

Legal Liability. Chapter 5. Understand the litigious environment in which CPAs practice. Learning Objective 1. Changed Legal Environment. Audit professionals have a responsibility under common law to fulfill implied or expressed contracts with clients.

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Legal Liability

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  1. Legal Liability Chapter 5

  2. Understand the litigious environment in which CPAs practice. Learning Objective 1

  3. Changed Legal Environment Audit professionals have a responsibility under common law to fulfill implied or expressed contracts with clients. They are liable to their clients for negligence and/or breach of contract should they fail to provide the services or not exercise due care in their performance. Despite efforts by the profession to address the legal liability of CPAs, both the number of lawsuits and sizes of awards to plaintiffs remain high.

  4. Changed Legal Environment Major contributors: • Growing awareness of responsibilities of public accountants by users of financial statements • Increased consciousness of the Securities and Exchange Commission (SEC) for its responsibility for protecting investors’ interests • Complexity of auditing and accounting functions caused by increasing size of businesses, globalization of business, and complexities of business operations • Tendency of society to accept lawsuits by injured parties against anyone who might be able to provide compensation, regardless of fault (“deep-pocket” concept of liability) • Large civil court judgments against CPA firms awarded in a few cases encourage attorneys to provide legal services on a contingent-fee basis – offers the injured party a potential gain when the suit is successful, but minimal losses when it is not • Willingness of many CPA firms to settle legal problems out of court in an attempt to avoid costly legal fees and adverse publicity, rather than resolution through judicial process • Judges’ and jurors’ difficulty in understanding and interpreting technical accounting and auditing matters

  5. Explain why the failure of financial statement users to differentiate among business failure, audit failure, and audit risk has resulted in lawsuits. Learning Objective 2

  6. Business Failure, Audit Failure, and Audit Risk • Business failure It occurs when a business is unable to repay its lenders or meet the expectations of its investors because of economic or business conditions.

  7. Business Failure, Audit Failure, and Audit Risk • Audit failure It occurs when the auditor issues an incorrect audit opinion because it failed to comply with the requirements of auditing standards.

  8. Business Failure, Audit Failure, and Audit Risk • Audit risk It represents the risk that the auditor will conclude that the financial statements are fairly stated and an unqualified opinion can be issued when, in fact, they are materially misstated.

  9. Use the primary legal concepts and terms concerning accountants’ liability as a basis for studying legal liability of auditors. Learning Objective 3

  10. Legal Concepts Affecting Liability • Prudent person concept • Liability for the acts of others • Lack of privileged communication

  11. Legal Terms AffectingCPAs’ Liability Terms related to negligence and fraud: • Ordinary negligence • Gross negligence • Constructive fraud • Fraud

  12. Legal Terms AffectingCPAs’ Liability Terms related to contract law: • Breach of contract • Third-party beneficiary

  13. Legal Terms AffectingCPAs’ Liability Other terms: • Common law • Statutory law • Joint and several liability • Separate and proportionate liability

  14. Four Major Sources of Auditors’ Legal Liability • Liability to clients • Liability to third parties • Federal securities laws • Criminal liability

  15. Describe accountants’ liability to clients and related defenses. Learning Objective 4

  16. Liability to Clients The most common source of lawsuits against CPAs is from clients.

  17. Auditor’s Defenses AgainstClient Suits • Lack of duty to perform • Nonnegligent performance • Contributory negligence • Absence of causal connection

  18. Describe accountants’ liability to third parties under common law and related defenses. Learning Objective 5

  19. Liability to Third Parties Under Common Law • Ultramares doctrine • Foreseen users

  20. Foreseen Users • Credit alliance • Restatement of torts • Foreseeable user

  21. Auditor Defenses AgainstThird-Party Suits The preferred defense is nonnegligent performance.

  22. Describe accountants’ civil liability under the federal securities laws and related defenses. Learning Objective 6

  23. Securities Act of 1933 The Securities Act imposes an unusual burden on the auditor. Section 11 of the 1933 act defines the rights of third parties and auditors.

  24. Securities ExchangeAct of 1934 The liability of auditors under this act often centers on the audited financial statements issued to the public in annual reports or submitted to the SEC as a part of annual Form 10-K reports.

  25. Rule 10b-5 of the Securities Exchange Act of 1934 Section 10 and rule 10b-5 are often called the antifraud provisions of the 1934 act.

  26. Auditor Defenses – 1934 Act • Nonnegligent performance • Lack of duty • Absence of causal connection

  27. SEC Sanctions The SEC has the power in certain circumstances to sanction or suspend practitioners from doing audits for SEC companies. In recent years, the SEC has temporarily suspended a number of individual CPAs from doing any audits on SEC clients.

  28. Foreign CorruptPractices Act of 1977 This act makes it illegal to offer a bribe to an official of a foreign country for the purpose of exerting influence and obtaining or retaining business.

  29. Sarbanes-Oxley Act of 2002 This act requires the CEO and CFO to certify the annual and quarterly financial statements filed with the SEC. Management must report its assessment of the effectiveness of internal control over financial reporting. The auditor must issue an opinion on the effectiveness of internal control over financial reporting .

  30. Specify what constitutes criminal liability for accountants. Learning Objective 7

  31. Criminal Liability CPAs can be held liable under criminal liability for accountants. CPAs can be found guilty for criminal action under both federal and state laws.

  32. Sarbanes-Oxley Act This act makes it a felony to destroy or create documents to impede or obstruct a federal investigation.

  33. Describe what the profession and the individual CPA can do and what is being done to reduce the threat of litigation. Learning Objective 8

  34. The Profession’s Responseto Legal Liability • Research in auditing • Standard and rule setting • Set requirements to protect auditors • Establish peer review requirements

  35. The Profession’s Responseto Legal Liability • Oppose lawsuits • Education of users • Sanction members for improper conduct and performance • Lobby for changes in laws

  36. Protecting Individual CPAsfrom Legal Liability • Deal only with clients possessing integrity • Hire qualified personnel • Follow the standards of the profession • Maintain independence

  37. Protecting Individual CPAsfrom Legal Liability • Understand the client’s business • Perform quality audits • Document the work properly • Obtain an engagement and a representation letter • Maintain confidential relations

  38. Protecting Individual CPAsfrom Legal Liability • Carry adequate insurance • Seek legal counsel • Choose a form of organization with limited liability • Exercise professional skepticism

  39. End of Chapter 5

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