5 - 1 ©2006 Prentice Hall Business Publishing, Auditing 11/e, Arens/Beasley/Elder Legal Liability Chapter 5

5 - 2 ©2006 Prentice Hall Business Publishing, Auditing 11/e, Arens/Beasley/Elder Learning Objective 1 Understand the litigious environment in which CPAs practice.

5 - 3 ©2006 Prentice Hall Business Publishing, Auditing 11/e, Arens/Beasley/Elder 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.

5 - 4 ©2006 Prentice Hall Business Publishing, Auditing 11/e, Arens/Beasley/Elder 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.

5 - 5 ©2006 Prentice Hall Business Publishing, Auditing 11/e, Arens/Beasley/Elder Business Failure, Audit Failure, and Audit Risk Businessfailure Auditfailure Auditrisk

5 - 6 ©2006 Prentice Hall Business Publishing, Auditing 11/e, Arens/Beasley/Elder 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.

5 - 7 ©2006 Prentice Hall Business Publishing, Auditing 11/e, Arens/Beasley/Elder Business Failure, Audit Failure, 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).

5 - 8 ©2006 Prentice Hall Business Publishing, Auditing 11/e, Arens/Beasley/Elder 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.

5 - 9 ©2006 Prentice Hall Business Publishing, Auditing 11/e, Arens/Beasley/Elder Learning Objective 3 Use the primary legal concepts and terms concerning accountants’ liability as a basis for studying legal liability of auditors.

©2006 Prentice Hall Business Publishing, Auditing 11/e, Arens/Beasley/Elder Lack of privileged communication Liability for the acts of others Prudent person concept Legal Concepts Affecting Liability

©2006 Prentice Hall Business Publishing, Auditing 11/e, Arens/Beasley/Elder Legal Terms Affecting CPAs’ Liability Terms related to negligence and fraud: Ordinarynegligence Constructivefraud Grossnegligence Fraud

©2006 Prentice Hall Business Publishing, Auditing 11/e, Arens/Beasley/Elder Legal Terms Affecting CPAs’ Liability Terms related to contract law: Breach of contract Constructivefraud Third-partybeneficiary Fraud

©2006 Prentice Hall Business Publishing, Auditing 11/e, Arens/Beasley/Elder Legal Terms Affecting CPAs’ Liability Other terms: Commonlaw Joint and severalliability Statutorylaw Separate and proportionateliability

©2006 Prentice Hall Business Publishing, Auditing 11/e, Arens/Beasley/Elder Four Major Sources of Auditors’ Legal Liability Third party Federal securities laws Client Criminalliability

©2006 Prentice Hall Business Publishing, Auditing 11/e, Arens/Beasley/Elder Learning Objective 4 Describe accountants’ liability to clients and related defenses.

©2006 Prentice Hall Business Publishing, Auditing 11/e, Arens/Beasley/Elder Liability to Clients The most common source of lawsuits against CPAs is from clients.

©2006 Prentice Hall Business Publishing, Auditing 11/e, Arens/Beasley/Elder Auditor’s Defenses Against Client Suits Lack of duty to perform Nonnegligent performance Contributory negligence Absence of causal connection

©2006 Prentice Hall Business Publishing, Auditing 11/e, Arens/Beasley/Elder Learning Objective 5 Describe accountants’ liability to third parties under common law and related defenses.

©2006 Prentice Hall Business Publishing, Auditing 11/e, Arens/Beasley/Elder Liability to Third Parties Under Common Law Ultramares doctrine Foreseen users

©2006 Prentice Hall Business Publishing, Auditing 11/e, Arens/Beasley/Elder Foreseen Users Credit alliance Restatement of torts Foreseeable user

©2006 Prentice Hall Business Publishing, Auditing 11/e, Arens/Beasley/Elder Auditor Defenses Against Third-Party Suits The preferred defense is nonnegligent performance.

©2006 Prentice Hall Business Publishing, Auditing 11/e, Arens/Beasley/Elder Learning Objective 6 Describe accountants’ civil liability under the federal securities laws and related defenses.

©2006 Prentice Hall Business Publishing, Auditing 11/e, Arens/Beasley/Elder 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.

©2006 Prentice Hall Business Publishing, Auditing 11/e, Arens/Beasley/Elder Securities Exchange Act 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.

©2006 Prentice Hall Business Publishing, Auditing 11/e, Arens/Beasley/Elder Auditor Defenses – 1934 Act Nonnegligent performance Lack of duty Absence of causal connection

©2006 Prentice Hall Business Publishing, Auditing 11/e, Arens/Beasley/Elder 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’s Rules of Practice says:

©2006 Prentice Hall Business Publishing, Auditing 11/e, Arens/Beasley/Elder 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.

©2006 Prentice Hall Business Publishing, Auditing 11/e, Arens/Beasley/Elder Racketeer Influenced and Corrupt 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.”

©2006 Prentice Hall Business Publishing, Auditing 11/e, Arens/Beasley/Elder Foreign Corrupt Practices 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.

©2006 Prentice Hall Business Publishing, Auditing 11/e, Arens/Beasley/Elder Learning Objective 7 Specify what constitutes criminal liability for accountants.

©2006 Prentice Hall Business Publishing, Auditing 11/e, Arens/Beasley/Elder 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.

©2006 Prentice Hall Business Publishing, Auditing 11/e, Arens/Beasley/Elder Sarbanes-Oxley Act This Act makes it a felony to destroy or create documents to impede or obstruct a federal investigation.

©2006 Prentice Hall Business Publishing, Auditing 11/e, Arens/Beasley/Elder Learning Objective 8 Describe what the profession and the individual CPA can do and what is being done to reduce the threat of litigation.

©2006 Prentice Hall Business Publishing, Auditing 11/e, Arens/Beasley/Elder The Profession’s Response to Legal Liability Research in auditing Standard and rule setting Set requirements to protect auditors Establish peer review requirements

©2006 Prentice Hall Business Publishing, Auditing 11/e, Arens/Beasley/Elder The Profession’s Response to Legal Liability Oppose lawsuits Education of users Sanction members for improper conduct and performance Lobby for changes in laws

©2006 Prentice Hall Business Publishing, Auditing 11/e, Arens/Beasley/Elder Protecting Individual CPAs from Legal Liability Deal only with clients possessing integrity Hire qualified personnel Follow the standards of the profession Maintain independence

©2006 Prentice Hall Business Publishing, Auditing 11/e, Arens/Beasley/Elder Protecting Individual CPAs from Legal Liability Understand the client’s business Perform quality audits Document the work properly Obtain an engagement and a representation letter Maintain confidential relations

©2006 Prentice Hall Business Publishing, Auditing 11/e, Arens/Beasley/Elder Protecting Individual CPAs from Legal Liability Carry adequate insurance Seek legal counsel Choose a form of organization with limited liability Exercise professional skepticism

©2006 Prentice Hall Business Publishing, Auditing 11/e, Arens/Beasley/Elder End of Chapter 5