During your career, you might come across conduct by another regulated accountant which you are concerned about. The conduct could be in an accountant’s professional or personal life, and might potentially breach technical or ethical standards. These common dilemmas then arise: do I have a duty to report this to the accountant’s regulatory body? If I don’t, would it cause me to get into difficulty with my regulator?
Similarly, you may have received a police caution for a minor assault, or a conviction for a relatively minor matter, or you may have done something in your professional or personal life which might have fallen below the ethical or technical standards of your regulator. Do you have a duty to disclose these matters to your regulator? We provide some general guidance on whether you have a duty to report misconduct to your regulator. Please contact us should you need any further information or advice.
The ICAEW Disciplinary bye-laws provide that there is a duty for every member, where it is in the public interest to do so, to report any facts or matters indicating that a member and / or firm or provisional member may have become liable to disciplinary action. The bye-laws do not, however, stipulate exactly what sort of conduct would fall within the category of being ‘liable to disciplinary action.’ They do say that in determining whether it is in the public interest for a member to report regard should be had to such guidance as may from time to time be issued by the ICAEW Regulatory Board.
The ICAEW’s ‘Duty to report misconduct’ guidance, effective as of 1 October 2020, provides greater clarity in explaining that another member or firm may be liable to disciplinary action, and a duty to report will therefore arise, where another member or firm has, or may have:
- committed misconduct: by committing any act or default, whether in the course of carrying out professional work or otherwise, likely to bring discredit on the member, the profession of accountancy or ICAEW or so as to fall significantly short of the standards reasonably expected of a member / firm;
- been professionally incompetent: by performing professional work incompetently to such an extent, or on such a number of occasions, as to fall significantly short of the standards reasonably expected of a member / firm;
- committed a breach of any ICAEW bye-law or regulation;
- been charged with and / or convicted of a criminal offence (whether in the UK or abroad);
- been the subject of a disqualification order or provided a disqualification undertaking under the Company Directors Disqualification Act 1986 (or equivalent legislation abroad);
- carried on activities regulated under statute when not authorised to do so;
- been declared bankrupt or liable to disciplinary action under Disciplinary bye-law 4.2 (financial propriety and insolvency matters);
- been the subject of an adverse finding in a report by, or proceedings before, another person or body as specified in Disciplinary bye-law 7.
A non-exhaustive list of examples of matters that are likely to constitute misconduct relating to a member’s professional life or work environment appears as Appendix 1 to the Guidance and includes:
- dishonest actions or statements and/or actions demonstrating a lack of integrity;
- knowingly providing false or misleading information to a principal, an employer, senior manager, a client, a regulator etc.;
- falsification of documents or wrongful backdating of documents;
- knowingly or recklessly acting with a conflict of interest or lack of independence;
- knowing or reckless breach of duty of confidentiality;
- knowingly or recklessly preparing incorrect documents to be filed/published / relied upon e.g. financial statements, valuations, tax returns, mortgage references etc;
- knowing or reckless breach of AML requirements;
- misappropriation of funds from employer, by expense claims or otherwise, or from client;
- knowing or reckless submission of incorrect expense claims particularly where the errors are numerous and / or significant;
- creating, encouraging or promoting highly artificial or highly contrived tax avoidance schemes in breach of the standards for tax planning in the Professional Conduct in Relation to Taxation guidance;
- knowing or reckless breaches of the Clients’ Money Regulations;
- knowing or reckless failure to obtain client’s consent to retain commission;
- abusive, intimidatory or threatening conduct directed towards other employees / managers at place of work or directed towards third parties such as clients, regulators etc.;
- harassment (sexual or otherwise) of another employee / manager at place of work or client.
A non-exhaustive list of examples of matters that are likely to constitute misconduct relating to a member’s personal activities appears as Appendix 2 to the Guidance and includes:
- being charged with, or convicted of, one or more criminal offences involving dishonesty, fraud, extortion or bribery; discrimination; violence or sexual misconduct; the possession or distribution of child sex abuse images or where the offence is associated with terrorism; money laundering; perverting or obstructing the court of justice or facilitating or concealing serious criminal activity by others;
- convictions, or accepting a caution, for any other criminal offence except minor motoring offences;
- where a member has been removed or dismissed from a position of trust on the basis of dishonest or allegedly dishonest behaviour;
- inappropriate use of social media / electronic communications;
- verbally or physically abusive behaviour towards work colleagues or others persons outside of the workplace;
- sexual misconduct / harassment of work colleagues or other persons outside of the workplace;
- aggressive or abusive behaviour in correspondence that may be unrelated to professional activities or relate to the member’s own financial affairs.
The Guidance makes clear that the reporting duty does not extend to minor faults of other members or a firm or suspected issues that are not supported by evidence.
The Guidance also makes it clear that members are also responsible for reporting their own actions / omissions, if they fall within the category of ‘being liable to disciplinary action.’ If the report results in disciplinary action being brought against a member, the self-report will count in their favour.
The ACCA bye-laws, under the title ‘Obligation to Cooperate and Inform’ direct that it is the duty of every member to bring promptly to the attention of the ACCA any facts or matters indicating that a member, relevant firm or registered student may have become liable to disciplinary action. This includes self-reporting when you have engaged in conduct which falls below one of the prescribed categories.
Under the ACCA’s bye-laws, a number of types of conduct are listed as being the types of issue which would lead to a member being liable to disciplinary action. Some examples include (this list is not exhaustive and should be considered in full from the bye-laws. The bye-laws also use the masculine to denote any gender):
- he has been guilty of misconduct in carrying out his professional duties or otherwise (which would include events in his private life);
- he has performed his work, or has conducted himself or his practice, erroneously, inadequately, inefficiently or incompetently;
- he has committed any breach of the ACCA’s bye-laws;
- he has been disciplined by another regulatory body;
- he has become insolvent or has entered into an agreement with creditors;
- he has failed to satisfy a judgment debt without reasonable excuse for a period of two months;
- he has pleaded guilty to, been found guilty of, or accepted a caution in relation to any offence discreditable to the ACCA or the accountancy profession;
- he has been, before a UK court or elsewhere, found to have acted fraudulently or dishonestly.
The bye-laws also make it clear that a member must report him or herself if he/ she has engaged in conduct which would lead to them being liable for disciplinary action.
CIMA’s bye-laws set out a fairly contained set of requirements for matters which must be disclosed to it. The disclosure must be made within 30 days of the event in question. The bye-laws state that a member or registered student must make a disclosure where he/she:
- sustains a disciplinary sanction before any body or tribunal;
- is found guilty of an offence by any court;
- is declared bankrupt or made subject to a bankruptcy restrictions order or undertaking;
- enters into an individual voluntary arrangement with creditors or is subject to a debt relief order; or
- is disqualified from acting, or gives an undertaking not to act, as a director or trustee.
Under CIPFA’s bye-laws, it is the duty of every member, affiliate member, associate member and registered student to, where it is in the public interest to do so, bring to the attention of CIPFA any facts or matters which indicate that a member, former member, affiliate member, former affiliate member or current or former student may have become liable to disciplinary action.
The conduct which might cause a member/ former member etc. to become liable to disciplinary action are fairly varied, and include:
- a complaint has been made about the individual’s competence;
- he/ she appears to have breached one or more of the guides to conduct, principles or rules prescribed by the Council;
- he/ she has conducted him or herself in such a way as to prejudicially affect the status, reputation or welfare of CIPFA;
- he/ she may be guilty of misconduct. Under the bye-laws, ‘misconduct’ includes:
- any act/ default which has brought or is likely to bring discredit upon him/ herself, his/ her employer, CIPFA or the accountancy profession;
- he/ she has received a conviction in any proceedings in which a sentence of imprisonment may be imposed;
- he/ she has been subject to a finding in civil or criminal proceedings that he/ she has acted dishonestly or fraudulently;
- he/ she has become bankrupt or has entered into an arrangement with his/ her creditors.
The ICAS Investigation Regulations set out that it is the duty of each member, student member or affiliate member to report to ICAS any facts or matters which, in their reasonable opinion, indicate that:
- a member, student or affiliate may be guilty of professional misconduct or unsatisfactory professional conduct;
- a member, student, affiliate or firm may be guilty of professional incompetence;
- a firm may have committed any serious act or default, in the course of carrying out professional work or otherwise likely to discredit the firm, ICAS or the profession of accountancy;
- a firm may have failed to adhere to the rules, regulations or other guidance governing the regulation of firms.
The ICAS ‘Helpsheet: Reporting Potential Disciplinary Matters to ICAS” defines professional misconduct, unsatisfactory professional conduct and professional incompetence. It also confirms that a member has an equivalent duty to report their own conduct when it might fall into one of the above categories.