Malpractice is a form of negligence, which requires a showing of duty, breach of duty, causation and damages, along with special duties that an accountant owes as a professional.
In a malpractice case, the duty owed to the client is to act as a reasonably competent professional would in the general community under the same circumstances. Additionally, for accountants, there are established professional standards to adhere to, including the following:
• GAAP; generally accepted accounting principles
• GAAS; generally accepted auditing standards
Breach of Duty
A deviation from either general standards of competency (such as not filing a tax return on time) or from GAAP or GAAS guidelines may demonstrate negligence. However, negligence alone is not sufficient to support a malpractice claim.
It must be demonstrated that the direct cause of the client’s loss was the negligent professional error of the accountant.
The client must have actually sustained economic damages from the negligent professional error of the accountant.
Common Malpractice Errors
• Failure to follow GAAP practices
• Failure to follow GAAS practices
• Filing late tax returns
• Filing faulty tax returns
• Failure to provide correct tax advice
• Failure to provide correct corporate restructuring advice
• Failure to keep accurate records
• Embezzlement, misappropriation of funds, theft
Reliance on Client Information
An important consideration in evaluating an accounting malpractice case is the information provided by the client. In many situations, the accountant has limited or no ability to independently verify the information, and therefore his or her liability may be limited by this constraint.