Md. Code Regs. 09.24.01.06

Current through Register Vol. 51, No. 21, October 18, 2024

Section 09.24.01.06 - Code of Professional Conduct

A. Independence.

(1) A licensee who is performing an engagement in which the licensee is to issue a written certificate or opinion, other than one in which a lack of independence is disclosed, shall be independent with respect to the client in fact and appearance.

(2) Independence is considered to be impaired if, for example, during the period of a licensee's professional engagement, or at the time of issuing the written certificate or opinion, the licensee:

(a) Had or was committed to acquire any direct or material indirect financial interest in the client;

(b) Was a trustee of any trust, or personal representative of any estate, if this trust or estate had or was committed to acquire any direct or material indirect financial interest in the client;

(c) Had any joint, closely held business investment with the client or any officer, director, or principal stockholder of the client which was material in relation to the net worth of either the licensee or the client; or

(d) Had any loan to or from the client or any officer, director, or principal stockholder of the client other than loans of the following kinds made by a financial institution under normal lending procedures, terms, and requirements:

(i) Loans obtained by the licensee which are not material in relation to the net worth of the licensee,

(ii) Home mortgages, and

(iii) Other secured loans, except those secured solely by a guarantee of the licensee.

(3) Independence is also considered to be impaired if, during the period covered by the financial statements, during the period of the professional engagement, or at the time of issuing the written certificate or opinion, the licensee:

(a) Was connected with the client as a promoter, underwriter, or voting trustee, a director, or officer or in any capacity equivalent to that of a member of management or of an employee;

(b) Was a trustee for any pension or profit-sharing trust of the client; or

(c) Received other compensation from a third party, or had a commitment to receive other compensation from the client or a third party, with respect to services or products procured or to be procured by the client.

(4) The examples in §A(2) of this regulation are not intended to be all-inclusive.

B. A licensee may not in the performance of professional services knowingly misrepresent facts, or subordinate judgement to others. In tax practice, however, a licensee may resolve doubt in favor of the client as long as there is reasonable support for the licensee's position.

C. A licensee may not, during the period in which the licensee is engaged to perform any of the following services, and during the period covered by any historical financial statements involved in the listed services:

(1) Perform for a contingent fee any professional services for, or receive a contingent fee from a client for whom the licensee or the licensee's firm performs:

(a) An audit or review of a financial statement;

(b) A compilation of a financial statement, when the licensee expects, or reasonably might expect, that a third party will use the financial statement and the licensee's compilation report does not disclose a lack of independence; or

(c) An examination of prospective financial information; or

(2) Prepare an original or amended tax return or claim for a tax refund for a contingent fee for any client.

D. A licensee may not concurrently engage in the practice of certified public accountancy and in any other business or occupation which impairs independence or objectivity in rendering professional services.

E. With respect to other compensation:

(1) A licensee who receives or agrees to receive other compensation with respect to services or products recommended, referred, or sold by the licensee to another person shall make, not later than the making of the recommendation, referral, or sale, the following disclosures to the other person in writing:

(a) If the other person is a client, the nature, source, and amount of the other compensation, or

(b) If the other person is not a client, the nature and source only of any other compensation received from a third party;

(2) The disclosure required by this regulation shall be made regardless of the amount, as defined by Regulation .01A(4) of this chapter, of the other compensation involved;

(3) This regulation does not apply to payments received from the sale of all or a material part of an accounting practice, or to retirement payments to persons formerly engaged in the practice of public accountancy;

(4) Compliance with the requirements of this section does not constitute a defense to a charge of impaired independence under §A(3)(c) of this regulation.

F. A licensee may not pay a commission to a third party to obtain a client unless, before being engaged by the client, the licensee discloses to the client in writing the fact and the amount of the commission. This regulation does not apply to payments made by a licensee for the purchase of all or a material part of an accounting practice, or to retirement payments to persons formerly engaged in the practice of public accountancy.

G. Competence and Technical Standards.

(1) A licensee may not undertake any engagement for the performance of professional services which the licensee cannot reasonably expect to complete with due professional competence, including compliance, where applicable, with §G(2)-(4) of this regulation.

(2) A licensee may not permit the licensee's name to be associated with financial statements in such a manner as to imply that the licensee is acting as an independent certified public accountant with respect to these financial statements unless the licensee has complied with applicable generally accepted auditing standards, as such standards may be amended, modified, issued, or reissued. Statements on auditing standards issued, reissued, amended, or modified, from time to time, by the American Institute of Certified Public Accountants, and other pronouncements having similar generally recognized authority, are considered to be interpretations of generally accepted auditing standards, and departures therefrom shall be justified by those who do not follow them.

(3) A licensee may not issue a report asserting that financial statements are presented in conformity with generally accepted at that time accounting principles if these financial statements contain any departure from those accounting principles which have a material effect on the financial statements taken as a whole, unless the licensee can demonstrate that by reason of unusual circumstances the financial statements would otherwise have been misleading. In this case, the licensee's report shall describe the departure, the approximate effects thereof, if practicable, and the reasons why compliance with the principle would result in a misleading statement. For purposes of this regulation, generally accepted accounting principles are considered to be defined by pronouncements issued, reissued, amended, or modified, from time to time, by the Financial Accounting Standards Board and its predecessor and successor entities and similar pronouncements issued by other entities having similar generally recognized authority.

(4) A licensee in the performance of accounting and review services or management advisory services, consulting, financial planning, or tax services shall conform to the professional standards applicable to these services at the time the services are performed.

H. Responsibilities to Clients.

(1) Except by permission of the client or the heirs, successors, or personal representatives of the client, a licensee or any partner, officer, shareholder, or employee of a licensee may not voluntarily disclose information communicated by the client relating to and in connection with professional services rendered to the client by the licensee. This regulation does not:

(a) Relieve a licensee of any obligations under §G of this regulation;

(b) Affect in any way a licensee's obligation to comply with a validly issued subpoena or summons in a criminal or bankruptcy case;

(c) Prohibit disclosures in the course of a quality review of a licensee's professional services; or

(d) Preclude a licensee from responding to any inquiry made by the Board or any investigative or disciplinary body established by law or formally recognized by the Board.

(2) Members and agents of the Board and professional practice reviewers may not disclose any client information which comes to their attention from licensees in disciplinary proceedings or otherwise in carrying out their responsibilities, except that they may furnish this information to an investigative or disciplinary body of the kind referred to above.

(3) A licensee shall furnish to the licensee's client or former client, upon request and reasonable notice made within a reasonable time after original issuance of the document in question:

(a) A copy of a tax return of the client;

(b) A copy of any report, or other document, issued by the licensee to or for this client;

(c) Any accounting or other records belonging to, or obtained from or on behalf of, the client which the licensee removed from the client's premises or received from the client's account, but the licensee may make and retain copies of these documents when they form the basis for work done by the licensee; and

(d) A copy of the licensee's working papers, to the extent that these working papers include records which would ordinarily constitute part of the client's records and are not otherwise available to the client.

I. Other Responsibilities and Practices.

(1) A licensee may not commit any act that reflects adversely on the licensee's fitness to engage in the practice of public accountancy.

(2) A licensee may not permit others to carry out on the licensee's behalf, either with or without compensation, acts which, if carried out by the licensee, would place the licensee in violation of the Code of Professional Conduct.

(3) A licensee may practice public accountancy only in a proprietorship, a partnership, or a professional corporation, organized in accordance with Business Occupations and Professions Article, Title 2, Annotated Code of Maryland.

(4) A licensee may not engage in the practice of public accountancy using a professional or firm name or designation which is misleading in any way, about the legal form of the firm, or about those who are partners, members, directors, or shareholders of the firm, or about any other matter. However, names of one or more former partners, members, directors, or shareholders may be included in the name of a firm or its successor, with the written consent of the former partner, member, director, or shareholder. A partner, member, director, or shareholder surviving the death of all other partners, members, directors, or shareholders may continue to practice under a firm name for 1 year after becoming a sole practitioner. An accounting firm may not use in its name terms such as "Group", "and Company", "and Associates", or similar terms which imply the presence in the firm of more licensees than those identified by name in the firm name unless the number of licensees associated with the firm, whether as partners, shareholders, members, directors, or full-time employees, exceeds the number of licensees named in the firm name.

(5) Failure to Respond.

(a) If an applicant or licensee receives from the Board a written communication requesting a response, the applicant or licensee shall respond in writing within 30 days of the date of the mailing.

(b) The Board shall send a written communication by first-class mail to the last address furnished to the Board by the applicant or licensee.

(c) It is the responsibility of the applicant or licensee to notify the Board in writing if there has been a change in the applicant's or licensee's address.

(d) Failure to respond as required by the regulation may be considered by the Board to be a violation of Business Occupations and Professions Article, §2-315(a)(l)(xii), Annotated Code of Maryland.

(6) Advertising and Solicitation.

(a) A licensee may not use or participate in the use of any form of communication, written or oral, having reference to the licensee's professional services, which contains a false, fraudulent, misleading, deceptive, or unfair statement or claim.

(b) A licensee may not solicit clients by the use of coercion, duress, compulsion, intimidation, threats, overreaching, or vexatious or harassing conduct.

(c) A false, fraudulent, misleading, deceptive, or unfair statement or claim includes but is not limited to a statement or claim which:

(i) Contains a misrepresentation of fact;

(ii) Is likely to mislead or deceive because it fails to make full disclosure of relevant facts;

(iii) Is intended or likely to create false or unjustified expectations of favorable results;

(iv) Implies educational or professional attainments or licensing recognition not supported in fact;

(v) Represents that professional services can or will be competently performed for a stated fee when this is not the case, or makes representations with respect to fees for professional services that do not disclose all variables that reasonably may be expected to affect the fees that will in fact be charged; or

(vi) Contains other representations or implications that in reasonable probability will cause those of ordinary prudence to misunderstand or be deceived.

(d) A licensee or CPA firm offering or performing public accounting services on an Internet webpage or website shall include the following information on the webpage or website:

(i) Name of the licensee or firm;

(ii) Principal place of business of the licensee or firm;

(iii) Business phone of the licensee or firm; and

(iv) The Maryland license or permit number issued by the Board accompanied by the language "Maryland license number" or "Maryland permit number", as appropriate.

(e) A CPA firm webpage or website need not include the individual registration number of each CPA firm member.

J. Requirement to Disclose Conviction or Sanction to Board.

(1) A licensee or permit holder shall disclose to the Board that the licensee or permit holder has been:

(a) Convicted of a felony under the laws of the United States or any state;

(b) Convicted of a misdemeanor under the laws of the United States or any state; or

(c) Sanctioned by a unit of federal or state government, or any regulatory entity established by law.

(2) The disclosure under §J(1) of this regulation shall be made:

(a) In writing; and

(b) Within 30 days of the date of the conviction or sanction.

(3) The fact that a licensee or permit holder has appealed a conviction or sanction does not relieve the licensee or permit holder of the obligation to comply with §J of this regulation.

Md. Code Regs. 09.24.01.06

Regulations.06 adopted effective May 12, 1976 (3:10 Md. R. 529)
Regulation .06A amended effective January 26, 1987 (14:2 Md. R. 128)
Regulation .06C amended effective March 20, 2000 (27:5 Md. R. 583); December 31, 2007 (34:26 Md. R. 2261)
Regulation .06G amended effective October 19, 1998 (25:21 Md. R. 1573)
Regulation .06I amended effective October 10, 1994 (21:20 Md. R. 1732); December 28, 1998 (25:26 Md. R. 1921)
Regulation .06J adopted effective 41:8 Md. R. 470, eff.4/28/2014 ; amended effective 46:2 Md. R. 52, eff. 1/28/2019