Acting to stop harm: the FCA and Appointed Representatives
The Consultative Committee of Accountancy Bodies (CCAB) has issued new guidance for professional accountants on the boundaries of professional and private behaviour, setting out for the first time a list of agreed common principles which will apply when a professional accountant’s behaviour in their personal life could become of regulatory interest to their professional body.
The CCAB member bodies comprise the ICAEW, ACCA, CIPFA, ICAS, and the Chartered Accountants Ireland. The new guidance, aimed at members of these professional bodies, discusses the core principles that these bodies will apply when considering if a member has acted in a manner likely to discredit the profession in their non-professional life.
In all professional spheres, the blurring of the line between personal and professional behaviour is becoming ever greater with the increase in remote working technology, and the rise of social media. In line with this, professional bodies and regulators are becoming increasingly more attentive to behaviour conducted in a personal capacity which could lead to damage to the profession’s reputation when viewed in the public domain.
The ICAEW for example has indicated they have received a growing number of complaints concerning alleged inappropriate social media posts or other online communications made by members they regulate, that have the potential to offend or discriminate against others.
The latest guidance issued by the CCAB is a collective response to these concerns, jointly on behalf of the CCAB professional bodies. The guidance sets out 4 agreed common principles which the CCAB bodies consider are “relevant in assessing whether a member’s conduct in their personal life risks breaching their respective professional body’s Code of Ethics, byelaws and regulations.”
When receiving a complaint which calls into question the boundary between personal and professional life, the ICAEW, ACCA, CIPFA, ICAS, and the Chartered Accountants Ireland have agreed they will ask themselves the following 4 questions in deciding whether to investigate and ultimately take regulatory action:
The CCAB bodies’ respective Codes of Ethics are based on the International Ethics Standards Board for Accountants (IESBA) Code of Ethics, which requires professional accountants to:
“…comply with the relevant laws and regulations and avoid any conduct that the accountant knows or should know might discredit the profession. A professional accountant shall not knowingly engage in any business, occupation or activity that impairs or might impair the integrity, objectivity or good reputation of the profession, and as a result would be incompatible with the fundamental principles” [R115.1 of the IESBA Code of Ethics].
For example, if a professional accountant receives a conviction for a criminal offence related to an activity in their private life, this would be a clear breach of this ethical requirement, and will have regulatory ramifications on their professional life.
Conduct which bears on the qualities held as a professional accountant
The guidance underlines the significance of behaviours that might discredit the profession of accountancy, reminding professional accountants of the higher standard to which they will be held accountable compared to the rest of society.
When considering a report of alleged unprofessional behaviour concerning a private activity, the guidance makes clear that the relevant professional body will be looking closely at whether that activity, regardless of it being carried out within a person’s personal life, could risk bringing discredit to the profession, giving as an example, serious errors made in a member’s personal tax returns.
Disclosure of professional qualification as an identifier
The guidance specifies that a professional’s conduct in their personal life may attract their professional body’s interest if they disclose their professional identity whilst carrying out the activity being complained about. For example, if a professional accountant sends an abusive email or shares an offensive or discriminatory post on social media, and makes themselves known as being a member of a professional body, this will most likely be of regulatory concern. However, this is not to say that the professional body will not be interested where a member has not disclosed their job title, as Sophie Wales, Head of Ethics and Economic Crime at the ICAEW points out:
“The risk of causing discredit to the profession is higher if you identify yourself as an accountant, but even without disclosing your job, Google allows members of the public to very quickly work out who you are. This could result in a complaint to your professional body.”
The professional bodies will finally consider whether the misbehaviour reported is serious, such that it could be viewed as bringing discredit to the profession. In considering this, they will look at the context of the behaviour, specifically whether that context involves work or is work-related in any way, or whether the behaviour happened entirely in the person’s private life but was so serious that it could be discreditable.
Decisions about this will rarely be clear cut and will often require the professional body to weigh up a number of factors. The guidance does however provide two examples of when the behaviour will be regarded as serious such that the professional body will take action.
The new ethics guidance issued by the CCAB points to a growing concern shared among the professional accountancy bodies of the increasing blurriness of the boundary between personal and professional behaviour – when does behaviour carried out in a professional accountant’s personal life become a regulatory concern?
While the guidance is useful in setting out the agreed principles or factors which the professional bodies will be asking themselves when they receive a report that touches on the personal/private divide, these cases will in many cases not be clear-cut, and will require the professional body to undertake a balancing exercise of circumstances. Ultimately what they will be concerned about is whether the alleged misbehaviour carries the risk of bringing the profession into disrepute.
However, the issue of what falls within one’s personal life or beyond it into professional scope is a difficult one for both professionals and their regulators to grapple with. The extent of this difficulty was recently highlighted by the High Court in relation to solicitors, in case of Beckwith v Solicitors Regulation Authority  EWHC 3231, where the Court offered little to further our understanding of where the boundaries are between private and professional life:
“Whether that line between personal opprobrium on the one hand and harm to the standing of the person as a provider of legal services or harm to the profession per se on the other hand has been crossed, will be a matter of assessment for the Tribunal from case to case…" [At paragraph 43]
As the boundaries between personal and professional life become more blurred following new ways of working and the rising use of social media, the new CCAB guidance represents a step forward. However, with still much uncertainty surrounding how far regulators should take action in relation to matters of private life, professional accountants, and indeed professionals in all spheres, are urged to exercise caution.
If you think that something has happened in your personal life which may fall to be disclosed to your regulator, seek advice as soon as possible. Early disclosure may be considered a mitigating factor and will help to avoid any suggestion that you have not disclosed an issue when you should have done so.
If you have any questions or concerns about the content covered in this blog, please contact a member of the Regulatory team.
Julie Matheson is a partner in the Regulatory Team. Her expertise lies in advising professionals and professional services firms, particularly in the accountancy and built environment sector, on regulatory compliance, investigations and enforcement proceedings.
Lucinda Soon is a professional support lawyer in the Regulatory team, and is responsible for knowledge management and practice development.
Her work focuses on leveraging the team’s collective knowledge and expertise, ensuring that know-how and current and emerging regulatory developments are identified, evaluated, synthesised, and shared. She is particularly experienced in the adoption of technology to aid the delivery of these outcomes.
Professional Support Lawyer
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