Avoiding website claims that increase malpractice risk

Avoiding website claims that increase malpractice risk

How a CPA firm portrays itself to the public through its website may be critical to its success. Potential clients generally review firm websites when evaluating and selecting a service provider. Websites often convey a tone that is more marketing– or salesoriented.

How is the content of a firm’s website relevant to professional liability? When the language used to describe the firm, its staff, and its services does not match up with the firm’s actual expertise or experience, the defense of a potential professional liability claim may be compromised. Consequently, CPA firms should approach the development of their online presence with the same diligence and professionalism exercised with the delivery of their services.

When creating a website, a CPA firm may use offtheshelf software with templates designed to streamline the development process and reduce cost. Such templates typically list a broad array of services and innumerable industries, which a firm should customize to its own practice. Or a CPA firm may hire a marketing professional who may not understand the potential professional liability implications of statements made on the firm’s website.

For the purposes of demonstration, this article uses theoretical statements that could be found on a CPA firm’s website to identify some practices to continue and others to reconsider when creating or maintaining a CPA firm website.

The following statements could be interpreted as exaggerating the firm’s experience in certain practice areas:

Reconsider statements that exaggerate your education or experience. Reexamine your website and make sure its statements regarding industry and area of practice expertise and experience are current and supported by the firm’s practice. The AICPA Professional Liability Insurance Program has experienced claims whereby a CPA’s selfcharacterization as an “expert” has been called into question and used against the CPA by plaintiff attorneys. In these claims, the plaintiff attorney argues that, if the CPA had the expertise described in the firm’s website, he or she would have identified important service or industry issues relevant to the engagement. Plaintiff attorneys have used such language to add causes of action for misrepresentation and fraud to their negligence claims.

More significantly, the AICPA Code of Professional Conduct (AICPA Code) states that a CPA is in violation of the “Acts Discreditable Rule” (ET §1.400.090) if the CPA promotes or markets the CPA’s abilities to provide professional services or makes claims about the member’s experience or qualifications in a manner that is false, misleading, or deceptive. If a claim arises, a plaintiff’s attorney may cite this section in an attempt to discredit the CPA’s professionalism and credibility and allege a violation of the AICPA Code. In addition, many states have consumer protection statutes for professionals who have false or misleading advertising, imposing potential civil or criminal enforcement actions.

Consider listing the services and industries in which the firm regularly works. Be honest and focus on the firm’s strengths. Emphasize training and experience without “puffing.”

Consider using client endorsements or testimonials after obtaining the client’s written permission. Actual statements made by current or former clients demonstrate the value of the firm’s services and can be more persuasive than a selfserving statement by the CPA firm.

The following statements use words that could be interpreted as implying promises or guarantees regarding the outcomes of services provided:

Reconsider words that imply an absolute, such as “all,” “every,” “any,” “always,” or “constant.” These words establish a client’s expectation of the services to be provided. In addition, if a claim arises, a plaintiff attorney may contend that the CPA made a false or misleading statement and failed to deliver the service expected by the client. Once again, in the event of a professional liability claim, the client’s attorney may allege this was a violation of the “Acts Discreditable Rule” and state consumer protection statutes.

Consider softening the language. Phrases such as “endeavor to” or “our practice generally includes” help to avoid the perception that the firm’s statements constitute promises and guarantees.

The following statements indicate, in overly broad terms, that the CPA firm will provide operations oversight or monitoring of the client’s business:

Reconsider statements that hold the firm out as being solely responsible for the client’s business. Be careful not to give the impression that the CPA or firm will assume responsibility beyond that for which it is contracted in the engagement letter.

Consider proceeding with caution and using marketing messages to help manage client expectations. CPAs, especially those providing business process outsourcing services, may make decisions within the scope of the engagement and are responsible for identifying issues and providing relevant recommendations for client consideration. CPAs typically advise the client regarding the benefits and drawbacks of various options but, as a general matter, should emphasize that the client is ultimately responsible for the success of its business.

The following statements imply that the auditor or tax professional’s work can influence the client’s success:

Reconsider statements that promise that audit or tax work performed by the CPA firm will positively affect a client’s success or profitability. Client performance is based upon numerous variables, and it may be misleading to suggest that many CPA firm services are directly correlated with client success. In the event of a professional liability claim, the client’s attorney may assert that this representation reflected a commitment made to the client that the firm was unable to fulfill.

Consider using client testimonials to support how recommendations or services provided by the CPA firm assisted them in achieving desired business results. These declarations can describe the impact of CPA firm services and prove beneficial.

Reconsider statements that may be construed as professional advice on the website. CPA firms provide advice based upon clientspecific facts and assumptions.

Consider designating individuals to review and update website information often, ensuring that all content remains current, accurate, and relevant. This protocol also helps with search engine optimization.

Consider applying the concepts discussed here to other marketing materials and proposals, including those in print, social media, blogs, and any other format.

Consider remembering that in the event of a professional liability claim, the defense of the CPA firm may be more difficult if the CPA did not deliver on the promises made in a website statement.

Web presence among CPA firms

Deborah K. Rood (deborah.rood@cna.com) is a risk control consulting director at CNA.

Continental Casualty Co., one of the CNA insurance companies, is the underwriter of the AICPA Professional Liability Insurance Program. Aon Insurance Services, the National Program Administrator for the AICPA Professional Liability Program, is available at 800-221-3023 or visit cpai.com.

This article provides information, rather than advice or opinion. It is accurate to the best of the author’s knowledge as of the article date. This article should not be viewed as a substitute for recommendations of a retained professional. Such consultation is recommended in applying this material in any particular factual situations.

Examples are for illustrative purposes only and not intended to establish any standards of care, serve as legal advice, or acknowledge any given factual situation is covered under any CNA insurance policy. The relevant insurance policy provides actual terms, coverages, amounts, conditions, and exclusions for an insured. All products and services may not be available in all states and may be subject to change without notice.

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