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Legal Liability. Chapter 5. Learning Objective 1. Understand the litigious environment in which CPAs practice. 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 Chapter 5
Learning Objective 1 Understand the litigious environment in which CPAs practice.
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.
Learning Objective 2 Explain why the failure of financial statement users to differentiate among business failure, audit failure, and audit risk has resulted in lawsuits.
Business Failure, AuditFailure, and Audit Risk Audit Failure Business Failure Audit Risk
Business Failure, AuditFailure, 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.
Business Failure, AuditFailure, and Audit Risk Audit failure It occurs when the auditor issues an erroneous audit opinion as the result of an underlying failure to comply with the requirements of generally accepted auditing standards (GAAS).
Business Failure, AuditFailure, 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.
Learning Objective 3 Use the primary legal concepts and the terms concerning accountants’ liability as a basis for studying legal liability of auditors.
Legal ConceptsAffecting Liability Prudent person concept Liability for the acts of others Lack of privileged communication
Major Sources ofAuditor’s Legal Liability Client Federal securities laws Third party Criminal liability
Learning Objective 4 Describe accountants’ liability to clients and related defenses.
Liability to Clients The most common source of lawsuits against CPAs is from clients.
Legal Terms AffectingCPAs’ Liability Terms related to negligence and fraud Ordinary negligence Constructive fraud Gross negligence Fraud
Legal Terms AffectingCPAs’ Liability Terms related to contract law Breach of contract Third party beneficiary
Legal Terms AffectingCPAs’ Liability Other terms Common law Joint and several liability Statutory law Separate and proportionate liability
Auditor’s DefensesAgainst Client Suits Lack of duty Nonnegligent performance Contributory negligence Absence of causal connection
Learning Objective 5 Describe accountants’ liability to third parties under common law and related defenses.
Liability to Third PartiesUnder Common Law Ultramares doctrine Foreseen users
Foreseen Users Credit alliance Restatement of torts Foreseeable users
Learning Objective 6 Describe accountants’ civil liability under the federal securities laws and related defenses.
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.
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.
Auditor Defenses – 1934 Act Nonnegligent performance Lack of duty Absence of casual connection
SEC Sanctions The SEC has the power in certain circumstances to sanction or suspend practitioners from doing audits for SEC companies. Rule 2 (e) of the SEC’sRules of Practice says:
SEC Sanctions The commission may deny, the privilege of appearing or practicing before it in any way to any person who is found by the commission… (1) not to possess the requisite qualifications to represent others, or (2) to be lacking in character or integrity or to have engaged in unethical or improper professional conduct.
Racketeer Influenced andCorrupt Organization Act This act allows an injured party to seek treble (triple) damages and recovery of legal fees in cases where it can be demonstrated that the defendant was engaged in a “pattern of racketeering activity.”
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.
Learning Objective 7 Specify what constitutes criminal liability for accountants.
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.
Learning Objective 8 Describe what the profession and the individual CPA can do and what is being done to reduce the threat of litigation.
The Profession’s Responseto Legal Liability Research in auditing Standard and rule setting Set requirements to protect auditors Establish peer review requirements
The Profession’s Responseto Legal Liability Oppose law suits Education of users Sanction members for improper conduct and performance Lobby for changes in laws
Protecting Individual CPAsfrom Legal Liability Example Deal only with clients possessing integrity Hire qualified personnel Follow the standards of the profession Maintain independence
Protecting Individual CPAsfrom Legal Liability Example Understand the client’s business Perform quality audits Document the work properly Obtain an engagement and a representation letter Maintain confidential relations
Protecting Individual CPAsfrom Legal Liability Example Carry adequate insurance Seek legal counsel Choose a form of organization with limited liability Exercise professional skepticism
