Current through Reg. 49, No. 38; September 20, 2024
(a) A person shall
not use or participate in the use of:
(1) any
communication having reference to the person's professional services that
contains a false, fraudulent, misleading or deceptive statement or
claim;
(2) any communication that
refers to the person's professional services that is accomplished or
accompanied by coercion, duress, compulsion, intimidation, threats,
overreaching, or vexatious or harassing conduct; nor
(3) a name that is misleading as to the
identity of the individual practicing under such name.
(b) Definitions:
(1) A "false, fraudulent, misleading or
deceptive statement or claim" includes, but is not limited to, a statement or
claim which:
(A) contain a misrepresentation
of fact;
(B) is likely to mislead
or deceive because it fails to make full disclosure of relevant
facts;
(C) is intended or likely to
create false or unjustified expectations of favorable results;
(D) implies educational or professional
attainments or licensing recognition not supported in fact;
(E) represents that professional accounting
services can or will be completely performed for a stated fee when this is not
the case, or makes representations with respect to fees for professional
accounting services that do not disclose all variables that may reasonably be
expected to affect the fees that will in fact be charged;
(F) contains other representations or
implications that in reasonable probability will cause a reasonably prudent
person to misunderstand or be deceived;
(G) implies the ability to improperly
influence any court, tribunal, regulatory agency or similar body or official
due to some special relations;
(H)
consists of self-laudatory statements that are not based on verifiable
facts;
(I) makes untrue comparisons
with other accountants; or
(J)
contains testimonials or endorsements that are not based upon verifiable
facts.
(2) Broadcast--Any
transmission over the airwaves or over a cable, wireline, Internet, cellular,
e-mail system or any other electronic means.
(3) Coercion--Compelling by force or threat
of force so that one is constrained to do what his free will would otherwise
refuse.
(4) Compulsion--Driving or
urging by force or by physical or mental constraint to perform or forbear from
performing an act.
(5) Direct
personal communication--Either a face-to-face meeting or a conversation by
telephone.
(6) Duress--Any conduct
which overpowers the will of another.
(7) Harassing--Any word, gesture, or action
which tends to alarm and verbally abuse another person.
(8) Intimidation--Willfully to take, or
attempt to take, by putting in fear of bodily harm.
(9) Overreaching--Tricking, outwitting, or
cheating anyone into doing an act which he would not otherwise do.
(10) Threats--Any menace of such a nature and
extent as to unsettle the mind of anyone on whom it operates, and to take away
from his acts that free and voluntary action which alone constitutes
consent.
(11) Vexatious--Irritating
or annoying.
(c) It is a
violation of these rules for a person to persist in contacting a prospective
client when the prospective client has made known to the person, or the person
should have known the prospective client's desire not to be contacted by the
person.
(d) In the case of an
electronic or direct mail communication, the person shall retain a copy of the
actual communication along with a list or other description of parties to whom
the communication was distributed. Such copy shall be retained by the person
for a period of at least 36 months from the date of its last
distribution.
(e) Subsection (d) of
this section does not apply to anyone when:
(1) the communication is made to anyone who
is at that time a client of the person;
(2) the communication is invited by anyone to
whom it was made; or
(3) the
communication is made to anyone seeking to secure the performance of
professional accounting services.
(f) In the case of broadcasting, the
broadcast shall be recorded and the person shall retain a recording of the
actual transmission for at least 36 months.
