РефератыИностранный языкAuAuditor Liability Essay Research Paper Throughout the

Auditor Liability Essay Research Paper Throughout the

Auditor Liability Essay, Research Paper


Throughout the Eighties and into the Nineties the


question of liability has become more prevalent in the practice of public


accounting. Recently, the AICPA has been lobbying for liability reform in


cases involving negligence or malpractice by public acco untants.


Opposition to this lobbying has come from consumer advocacy organizations,


trial lawyers’ associations, and state public interest groups to name a


few. (Bolinger p. 53) The key to success for the AICPA, according to Gary


M. Bolinger is creating


an image as a, “profession performing high-quality services but faced


with excessive liability burdens that harm the public interest.” (Bolinger


p.56)


One should not be concerned, however, in the pending political


outcome, but in weighing the evidence argued by both sides and developing


a sound reasonable basis. Therefore, the remainder of this document shall


concern itself with comparing the prevalen t arguments of both sides


against one another and drawing a conclusion based on the evidence.


Opponents of liability reform rely heavily on an idealistic


constitutional argument as well as an economic argument to foster their


point. The main components of their argument are as follows: Limiting


recovery of loss has a detrimental effect on those


which are harmed by alleged negligence. The cost of liability is


reasonable when compared to total revenues, and in light of a CPA’s public


responsibility. Indemnity insurance spreads risk in the aggregate


therefore removing the element of risk at the f irm level. The threat of


litigation provides public accountants with a deterrent against negligent


work. Finally, the results of lawsuits cause the profession itself to


implement new standards. (Bolinger p.54)


The AICPA and its supporters have developed their argument based


on continued liability’s likely effect on the profession as well as an


economic argument. The arguments in favor of liability reform include the


effect of continued liability on the availab ility of CPA services. The


likelihood of fee increases resulting from liability risk. The threat of


the inability of public accounting to obtain and retain qualified


individuals. (Bolinger p.56) Finally, the complexities involved in the


audit engagemen t and the subjective decision making process versus the


ability of a given jury to understand and levy a fair decision in such


cases. After examining the arguments of both sides one will see that


litigation in its current form is a hindrance to the accou nting


profession as well as society, and the benefits provided by litigation are


attainable through enforcement of professional standards.


The first of the opponents arguments finds it’s basis from


idealistic Constitutional principal. The notion that those which have


been wronged, either directly or indirectly, deserve compensation for


their estimated loss is one which first found favor in


the case of Thomas v. Winchester in 1942. (Minnis p.4) In this case, for


the first time a third party received compensation. (Minnis p.4) The


precedent set by this case is the notion of duty owed to a third party–


if it ascertains that a duty is owed t hen a third party has a right to


seek compensation. The case which most directly affected auditors is a


case filed in the UK, Hedley Byrne and Co Ltd v Heller and Partners Ltd


(1964). (Minnis p.9) This case ultimately developed a situation where a


ban k passed to its client a certificate of credit-worthiness on a


potential client. The business which was deemed credit-worthy ultimately


failed, and claim resulted by the third party against the bank issuing the


certificate.!


(Minnis p.9) The finding in the


The notion that all parties remotely affected by a given action


(or lack thereof) deserve compensation for their loss is one which is


embraced by the legal community– and rightfully so, after all a drastic


reduction in the number of claims filed would r esult otherwise. The


argument made in its favor is that all those harmed by negligent activity


deserve compensation. Idealistically this is true, and theoretically


anyone who makes a decision based entirely on the results of an auditor’s


report, and suf fers a loss due to negligence in preparation by the


auditor, deserves compensation. Realistically, however, this is not


usually the case. With the exception of banks, whom are approached by


businesses for the possibility of tendering a loan, and therefo re do not


initiate contact; all other investors would only take the time to review


the financial statements of a given company if another mitigating force


attracted them. Therefore, it is reasonably asserted, that significa!


nt third parties, such as banks a


A second argument against liability reform is that the cost of


malpractice suits are reasonable in comparison with the revenues and level


of public responsibility delegated to CPA firms. An argument against this


is made twofold. First, the total number


of claims is not reasonable, but rather, astronomical. “According to a


recent industry estimate, the accounting profession as a whole is facing


4,000 lawsuits and $30 billion in potential claims pending against it.”


(Clolery p.42) Recent trends indicat e the total value of claims are


continually increasing, one has to ask at what point will the value of


claims become unreasonable? As claims continue to increase the demand for


indemnity insurance, which is cyclical in nature, will increase also


causing insurance expense to continually rise.


This brings about the second argument which is indemnity insurance


itself. Indemnity insurance is a very specialized area of insurance and


most insurers are unwilling to underwrite it. (Minnis p.58) When


discussing the cost of assuming liability for ac counting firms, one must


take into consideration that as claims increase and insurance companies


begin assuming losses as a result of indemnity claims, the willingness of


firms to underwrite indemnity insurance decreases substantially; and those


who do un derwrite it will demand a much higher premium resulting from the


decreasing supply and to compensate for losses generated previously.


(Layton-Cook p.109) In the long term, the argument that revenues


substantiate the cost of claims is no longer justifiabl e on a ratio


basis. To illustrate, firm XYZ has insurance costs x and fees y. Over


time insurance costs increase by z and consequently fees increase by z.


The resulting ratio is x+z/y+z rather than x/y.


The opposition’s third argument is insurance spreads the risk over


the aggregate. Theoretically, this is true– firms pass insurance costs


to clients who in turn pass additional overhead costs to consumers.


Additionally, all firms carry insurance there fore causing each firm to


bear the brunt of li

ability risk. Realistically speaking, however, a


point is reached where the inflationary implications of insurance is


greater than the market is willing to accept creating a situation where


clients are no lon ger willing to accept the additional costs imposed by


firms to compensate insurance expense leaving the firms as bearers of the


cost of liability risk. Also, when taking into consideration the fact


that a firm’s cost of indemnity insurance is at least pa rtially dependent


on prior claims against the firm, a situation will arise when firms are


unwilling to accept engagements which present risk, leaving the market


with a certain number of businesses which firms are not willing!


to represent.


The final two arguments of the opposition are sufficiently related


to combine into one discussion. These are: the threat of litigation acts


as a deterrent against negligence, and malpractice suits lead to


professional reform. The first of these argumen ts is clearly true,


litigation threat does indeed act as a deterrent against negligence.


Currently, the primary means of punishing negligent acts is through


litigation; therefore, one can reasonably assume the threat of lawsuit


causes firms to exhibit a greater level of care when completing an


engagement. If, however, standard violations are investigated and handled


properly by the profession this means is also accomplishable.


Finally, the opposition asserts litigation promotes reform.


Again, the same argument as before is appliable– if the profession


accepts the responsibility of investigating possible claims of malpractice


and negligence, and acts in areas where new standa rds are necessary the


same result is achievable.


The arguments the AICPA have developed in favor of liability


reform begin with the effect of litigation on the availability of


accounting services. As claims increase firms are forced to selectively


choose their client base in an effort to limit their l iability risk.


This phenomena is briefly covered in the section on indemnity insurance.


In an article entitled “How To Get Sued” Patrick Romano, CMA lists ten


surefire ways to ensure a lawsuit. His rule five states, “Choose clients


whose principals are


not honest, and take no extra precautions” (Romano p.58) This illustrates


a continuing trend which is prevalent in the profession, which is avoid


liability risk by better screening prospective clients. This seems


reasonable, except for the fact that al l SEC corporations require audits,


and audits are required in other situations as well. In the end, someone


must accept the audit engagement; and with the ever looming threat of


lawsuit a point is reached when there are no !


willing takers. When this situat


completeness. Additionally, he asserts staff qualifications as a major


point of emphasis in litigation. (Clolery p.44) The result is firms must


incur extra expenses in order to, not only adhere to the principals of


GAAS; but also to provide the appearan ce of adhering to GAAS.


This brings up another key point in the liability reform issue,


which is the likelihood of fee increases. Fee increases as a result of


malpractice are incurred in three areas: the increase resulting from


insurance expense, the increase resulting from t he costs of performing


the engagement, and increases resulting from litigation expense. The


first two issues are covered previously. The area of insurance expense is


discussed in the section covering indemnity insurance, while the cost of


the engagement


is illustrated in the most recent section. Additionally, the cost of


litigation services are also absorbed in engagement fees.


A third area used in the AICPA’s argument is that of obtaining and


retaining quality professionals. The basis for this argument is that well


educated intelligent persons, ones which public accounting seeks to


attract into the profession, are less likel y to pursue a career in public


accounting if high levels of liability risk exist. Furthermore, those who


do enter public accounting are more likely to leave the profession due to


liability risk. This argument has merit inasmuch as pointing out the


profe ssions dedication to employ only qualified individuals; however the


effect it will have on those choosing to enter the profession is difficult


to prove. One may ascertain the rationale behind leaving a profession


where the pressures of liability exist, b ut public accounting will never


have difficulty recruiting young professionals.


Finally, an area not addressed by the AICPA but which deserves


consideration nevertheless, is that of the complexities and subjectiveness


of auditing versus the ability of jurors to issue an educated decision.


The justice system relies on the services o f jurors to levy decisions;


however, in highly technical areas the ability of jurors is suspect. In


malpractice cases the verdict often hinges on compliance with GAAS.


(Buckless p.164)


A study was conducted concerning juror decisions based on a firm’s


compliance with GAAS by Frank A. Buckless and Robert L. Peace of the North


Carolina State University. They conducted a factorial experiment using


2×2 format. The four possibilities are as follows: instructions


indicating compliance with GAAS and such compliance is the only


considerable factor, compliance with GAAS and all factors are considered,


compliance with government standards and only compliance is considerable,


and compliance wit h government standards with all factors being


considered. (Buckless p.169) The study concluded, “that jurors attached


greater credibility to auditing standards established by the federal


government than to those established by the auditing profession.” (


Buckless p.173) In a subsequent article the point is raised that when


discussing the issue of government versus professional standards, one area


included a government witness while the other a witness from the


profession, b!


ut not a cross sample of both; th


In regression analysis of the same sample, education is found


significant with those more educated being more likely to find in favor of


the auditor. (Buckless p.172) This creates significant implications


regarding a jury’s ability to reach a fair verdi ct in cases as technical


and subjective as accounting malpractice cases.


The above argument shows major points used by both sides in the


ongoing fight involving liability reform in public accounting.


Additionally it suggests that the profession itself need bear the burden


of deterrence, enforcement, and investigation whereb y eliminating the


existing systems only strength. If the AICPA in cooperation with state


boards becomes more willing to accept the role as investigator and


punisher, then the economics of the argument suggest that liability reform


is in order.

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