5-1 Understand the litigious environment in which CPAs practice.
5-2 Explain why the failure of financial statement users to differentiate among business failure, audit failure, and audit risk has resulted in lawsuits. 5-3 Use the primary legal concepts and terms concerning accountants’ liability as a basis for studying legal liability of auditors. 5-4 Describe accountants’ liability to clients and related defenses.
5-5 Describe accountants’ liability to third parties under common
law and related defenses. 5-6 Describe accountants’ civil liability under the federal securities laws and related defenses. 5-7 Specify what constitutes criminal liability for accountants. 5-8 Describe how the profession and individual CPAs can reduce the threat of litigation.
• Professionals, including CPAs, are held to a high level of
performance. • Under common law, auditors must fulfill contracts with clients and may also be held liable to third parties. • Auditors may also be held liable to third parties based on statute, including the Securities Act of 1933, the Securities Exchange Act of 1934, and the Sarbanes- Oxley Act.
CHANGED LEGAL ENVIRONMENT (CONT.) Increase in the number of lawsuits and the sizes of the awards to plaintiffs Reasons for this trend include: • Growing awareness of the responsibilities of CPAs • Increased effort by the SEC to protect investors’ interests • Increased complexity of auditing and accounting • Litigious society
CHANGED LEGAL ENVIRONMENT (CONT.) Reasons for increased litigation against CPAs (cont): • Recession and tough economic times resulting in business failures • Attorneys often provide legal services on a contingent-fee basis • CPA firms willing to settle legal cases out of court • Difficulties of judges and juries understanding technical accounting and auditing matters
OBJECTIVE 5-2 Explain why the failure of financial statement users to differentiate among business failure, audit failure, and audit risk has resulted in lawsuits.
DISTINGUISHING BUSINESS FAILURE, AUDIT FAILURE, AND AUDIT RISK • Audit failure occurs when the auditor issues an incorrect audit opinion because the auditor did not comply with auditing standards • Audit risk represents the possibility that the auditor concludes, after conducting an adequate audit, that the financial statements were fairly stated when, in fact, they were materially misstated In cases when an audit failed to uncover material misstatements and the wrong type of opinion was issued, it is appropriate to question whether the auditor exercised due care in performing the audit. If the auditor did not exercise due care, the auditor can be held liable for the incorrect opinion.
DISTINGUISHING BUSINESS FAILURE, AUDIT FAILURE, AND AUDIT RISK The “expectation gap” contributes to the amount of litigation against auditors. The “expectation gap” refers to the difference between what an auditor’s responsibilities are and what the user expects from the auditor. • Auditor’s responsibility: to perform the audit in accordance with auditing standards • User expectation: is often that the auditor guarantees the accuracy of the financial statements, and even guarantees the viability of the business
Some basic legal concepts involved in determining liability:
• Prudent person concept • Liability for the acts of others • Lack of privileged communication • Legal terms affecting CPAs liability • Sources of legal liability: 1. Liability to clients 2. Liability to third parties under common law 3. Civil liability under federal securities laws 4. Criminal liability Some examples of these classifications of liability are included in Figure 5-1.
Auditors normally use one, or a combination of, the
following four defenses with claims filed by clients: • Lack of duty to perform service • Nonnegligent performance • Contributory negligence • Absence of causal connection Figure 5-3 discusses a case in which the auditor was not engaged to perform an audit. As a result of this case, auditors and clients typically sign engagement letters detailing the expectations of the engagement.
LIABILITY TO THIRD PARTIES UNDER COMMON LAW The Ultramares Doctrine resulted from a precedent-setting auditing case from 1931. Even though the auditors were negligent, they were not liable to the creditors because the creditors were not the primary beneficiary.
LIABILITY TO THIRD PARTIES UNDER COMMON LAW (CONT.) Courts have since broadened the Ultramares Doctrine to include third parties who are considered foreseen users. Foreseen users are a class of users that the auditor knows will rely on the financial statement. The Rusch Factors case in Figure 5-5 involves foreseen users.
LIABILITY TO THIRD PARTIES UNDER COMMON LAW (CONT.) The broadest interpretation of third-party beneficiaries is the concept of foreseeable users. This includes any user that the auditor should have reasonably been able to foresee as a likely user of the client’s financial statements. Table 5-2 summarizes the different approaches to third-party liability under common law.
LIABILITY TO THIRD PARTIES UNDER COMMON LAW (CONT.)
Auditor Defenses Against Third-Party Suits
Of the four defenses that are available to auditors in suits against them by clients, three are also available in suits against them by third parties: • Lack of duty to perform service • Nonnegligent performance • Absence of causal connection
requirements for the issuance of new securities. The only parties who can recover from auditors under the 1933 Act are the original purchasers of the securities. Figure 5-6 details a case filed under the Securities Act of 1933.
CIVIL LIABILITY UNDER THE FEDERAL SECURITIES LAWS (CONT.) Sarbanes-Oxley Act of 2002—increases the responsibilities of public companies and their auditors Requires that auditors express an opinion on the effectiveness of internal control, which could expose auditors to legal liability based on their opinion. The PCAOB may also sanction registered CPA firms for violations of the Act. Table 5-3 summarizes the sources of liability for auditors. Table 5-4 summarizes the defenses available to auditors.
CRIMINAL LIABILITY Criminal Liability for Accountants Federal laws make it a criminal offense to defraud another person through knowingly being involved with false financial statements. The Sarbanes-Oxley Act of 2002 made it a felony to destroy documents to impede or obstruct a federal investigation. These provisions were enacted in response to United States v. Andersen, in which the auditor, Andersen, was held responsible for shredding documents in the Enron case. This case is detailed in Figure 5-9.
The AICPA and the profession as a whole can do the following
to reduce practitioners’ exposure to legal liability: 1. Seek protection from nonmeritorious litigation. 2. Improve auditing to better meet users’ needs. 3. Educate users about the limits of auditing. One law change that has helped in this area is the Private Securities Litigation Reform Act of 1995, which limits the liability of auditors by providing for proportionate liability.
THE PROFESSION’S RESPONSE TO LEGAL LIABILITY Protecting Individual CPAs from Legal Liability Practicing auditors may take the following actions to minimize their liability: • Deal only with clients possessing integrity. • Maintain independence. • Understand the client’s business. • Perform quality audits. • Document the work properly. • Exercise professional skepticism. It is also important for CPAs to carry adequate insurance and choose a form of organization that provides some form of legal liability protection to owners.