Navigating professional risk: Identifying conflicts of interest and high-risk clients

On this episode, Nicole Graham, Risk Consultant — Aon, and Stan Sterna, Vice President — Aon, the national administrator and broker for the AICPA Member Insurance Programs, discuss identifying high-risk clients and managing conflicts of interest. They share their experiences and insights on professional liability risks, client acceptance and continuance protocols and the importance of maintaining objectivity and ethical standards in the accounting profession.

What you'll learn from this episode:

• Why it's critical to have and follow client acceptance and continuance protocols.
• How to properly manage a conflict-of-interest situation within a firm.
• Best practices on termination of client relationships.
• The importance of having an engagement letter in place particularly when dealing with high-risk clients.

AICPA resources

Client Termination Practitioner Checklist and Notification Letter Terminate a client relationship by following these helpful practice management reminders and then formally communicate the termination to your client.

Say "I do" to engagement letters

This podcast centers around the importance of engagement letters for tax practitioners.

Client Continuance Evaluation Tool

Tool designed to help CPA firms determine whether or not they should continue working with a client or terminate the relationship.

Transcript

April Walker: Hello, everyone, and welcome to the AICPA's Tax Section Odyssey podcast, where we offer thought leadership on all things tax-facing the profession. I'm April Walker, a lead manager for the Tax Section, and I'm here today with Nicole Graham and Stan Sterna. They are both with Aon, and I'm going to let them tell you a little bit about what they do. We're here together recording, which is always exciting to be able to do that in person at Digital CPA in Denver, and they are doing a session called identifying conflicts of interest and high-risk clients.

I thought, that sounds really interesting and something our listeners might want to learn more about. Stan, we'll start with you. Tell us a little bit about your background and where you're coming at this session.

Stan Sterna: Sure, thank you, April. I have a legal background. I started off practicing law, about 34 years ago, I'm dating myself. My entire career has been defending professional service firms and then an opportunity to take a position with Aon, who is the national administrator and broker for the AICPA Insurance Program, of which CNA is the underwriting partner, the carrier and had worked with Aon for a long time and they wanted me to come over and serve as a risk control consultant for not only the program but also for some of the larger firms as well.

I came over about 2016 and I currently advise firms on professional liability risks, cyber risk. I'm also involved in doing presentations like I am here today at Digital CPA and other industry events, writing articles for the Journal of Accountancy, as well as other publications. I like to look at ourselves as risk advisors as not somebody that puts a stop sign up and says, don't do anything or don't do something. It's giving folks in the accounting profession the tools in order to manage the risk while providing services and expanding and growing their practice.

April Walker: Nicole, what's your perspective on this topic today?

Nicole Graham: Well, I am here to scare everyone just a little bit.

April Walker: That's okay.

Nicole Graham: But I'm Nicole Graham. I am like Stan, a recovering attorney. I was in litigation practice for almost 18 years. For the majority of that time, I represented professional service firms in professional liability litigation and also disciplinary actions. I did that for a long time and decided to take off the boxing gloves, stop fighting every day, and instead take all those lessons learned and now try to work with firms proactively to avoid some of those pitfalls.

April Walker: Let's talk about identifying high risk. High risk could mean different things to different people.

Stan Sterna: I think the first thing you need to do, April, is you have to have client acceptance and continuance protocols in place. That's vital to identifying, is this client a right fit? You have to have that process, but as part of that process, you have to identify initially what is the risk appetite of the firm. What is your ideal client? It could be by industry, it can be by size. It could be by geographical location. It could be by the amount of revenue they make if it's a company or income. Identifying what is your ideal client, I think, is the first step.

Then you have to not only, and I think this is important, evaluate a client when they're coming through the door to see if it fits the risk appetite at a firm, but also you have to continually and regularly monitor the client and whether or not the client is still a member or still fits within your risk appetite. That's what we call client continuance. Sometimes client acceptance, everybody does client acceptance and might not be in one shape or the other, might not be the best client acceptance.

April Walker: It's not formal maybe.

Stan Sterna: Everybody's evaluating even folks that don't have written criteria or developed any concrete parameters. In some subconscious level, you're thinking, is this somebody that I want to work with or have as a client? But on the other hand, continuance seems to get short changed, especially in the tax area. One of the things that we've seen when we've dealt with a tax claim is situations where you have a client who maybe doesn't pay on time, or the client is constantly providing information at the last minute, and you're scrambling and you have to get extensions.

But yet, when the client came in the door, it seemed like a perfect fit for the firm. You're not re evaluating the situation, whether it's the demeanor of the client, the way they cooperate or maybe just circumstances change with the client that at least should be the impetus for looking at the client and rethinking is this client a good fit for our particular firm? Unfortunately, we've seen a lot of claims in the past, both Nicole and I, where continuance was the issue and not monitoring, is this a potentially high risk client? I think, in the tax area, one of the biggest risk flags or red flags is not paying fees and/or not giving information on time.

Unfortunately, when people don't pay fees and they're constantly either slow paying or they want to pay a fraction of it, if you pursue those fees, a lot of clients will turn around and point the finger at the accountant and say, well, there was something that you did that I didn't like, and that's the reason why I'm withholding fees. A lot of them it's a ruse to be frank with you, a client ruse in order to avoid either paying the fees or have some leverage in negotiating the fees.

April Walker: Sure.

Stan Sterna: Folks people are dedicated to the profession and I'm sure there's a lot of folks out there that absolutely love what they do and they love their clients, but for the most part, people aren't doing tax work for free. This is not a hobby.

April Walker: This is not nonprofit.

Stan Sterna: You should get paid. We've seen plenty of circumstances in the past where you know it's a problem client. Every time you say, well, I'm in the midst of preparing your returns for this year, I need to get paid from last year, and they'll put it off because they don't necessarily want to get in a situation where they're going back and forth with the client. Some folks will look back and go, well, the founder of our firm brought that client and it's a legacy client, and yeah, they don't pay, or yes, they're always questioning what I'm doing. They always want to, and these are other red flags, take shortcuts when preparing their taxes or giving you incomplete information.

Then you continue to say, look the other way and muddle through it and file a return with the best information available. Keep your fingers crossed.

April Walker: That's not a good risk plan.

Stan Sterna: That's not a good risk risk plan. In that situation, you should really look at that individual. It could be a friend. It could be a legacy client and decide, do we really continue together on this path in a tax preparer client relationship? Is it in my best interest to do that?

April Walker: These are good things. I'd like to pivot a little bit now and we'll talk about with Nicole, and certainly a high risk client could be, or another way of looking at it would be a conflict of interest. Talk to me Nicole a little bit about what kind of conflict of interests do you see that are problematic and how practitioners can recognize that, and also, take the next step as far as what do they do if they identify something as conflict of interest?

Nicole Graham: A conflict of interest is really just being able to identify and manage situations where there are competing interests or relationships. CPAs are required to maintain and protect their objectivity when they're providing client services. That is paramount to their duties to their client under the code of conduct, and something that we have to protect.

Nicole Graham: The way that the conflict of interest comes up is you have clients that could be adverse to one another.

April Walker: A divorce situation?

Nicole Graham: Correct. Or you have business partners who are going through a business dispute and you represent both of the business partners. We see that a lot.

When you look at these relationships and competing interests, you have to ask yourself questions. Am I able to remain objective while providing service to both affected clients, you also need to make sure that you are not putting your personal interest before client interest because there are your own self-interest or the interest of interests that your firm has or that close family members or close friends have that could affect your objectivity in providing client services. This is something that you need to look at when you're evaluating a potential conflict. You should be asking yourself, who are the stakeholders, do I have any personal issues that I need to address or any personal interests? Yes, no. Does this affect a client? For example, do I already represent a competitor in that industry, and would providing strategic insights to these competitors be a conflict? Could it be to the detriment of my other client? These are things you need to look at.

If you have a conflict, it doesn't necessarily mean you have to turn away the business, but it is something that you need to evaluate and you need to evaluate it from the beginning. If however, you identify the conflict, you can then proceed with a representation, but you have to meet a little test. If you look at Section, I think it's 10.29 of circular 230, it identifies the ways that you can manage the conflict and still represent the client. You have to have a reasonable belief that you can provide the affected clients with proper objectivity and diligence in the representation. You have to make sure that you're not violating any laws by representing them both and you have to have informed consent and waiver by the client and it must be in writing, and it must be done sooner rather than later. Don't wait till the end of the representation to address it.

In identifying how you go about this, we usually refer to it as the ACE framework. Awareness, communication, and exit, awareness, identifying the conflict, and once you identify it through asking yourself these various questions, then you have to communicate the conflict to the client. When you do that, you have to be specific about the potential conflict. You want to make them aware of it, you want to make them aware of the potential implications. You want to tell them your idea for how you plan to manage what guardrails you're going to put in place during the provision of services to protect them. You want to get their consent. You want to get it in writing. You want to document it, and then you also need to keep that documentation. Then if you decide through your analysis though, that the conflict can't be properly managed, that despite all the guardrails you can put in place, you still feel that there is exposure to you or your firm in going forward with the representation, then you should consider not taking on that client or disengaging, you have to eliminate the conflict.

April Walker: Very helpful, Nicole. In your ACE framework, E is for exit. We've got exit and terminating the relationship.

Nicole Graham: It's really when you're evaluating how to put in different guardrails, for example, can you have separate engagement teams to help both clients who might have competing interests and form an ethical wall? Then you realize, actually, I don't have enough people with the requisite expertise to form two engagement teams. Well, then that means you cannot take on both representations, you're going to have to eliminate the conflict, so you'll have to figure out which of the clients to move forward with and which one to let go. That's one of the most basic ways I've seen firms have to exit from a situation where they didn't have the resources to put in the proper guardrails, like having separate engagement teams.

April Walker: That makes sense. Stan, where do you see termination in this risk area, and how do you help your clients with that?

Stan Sterna: It's an important part. Like I said, not every client is a good fit for a firm. There's going to be clients that you really shouldn't touch with a 10 foot pole. There is a method to terminating that if you do it effectively, can help mitigate your risk. This is in the context of not only conflicts of interest, but high-risk clients that you don't want to take on. Most claim scenarios involving client termination involve terminating in such a way that the client feels you left them in a lurch, and that there was some deadline that is going to be missed because you left him in a lurch and maybe you didn't tell him about that deadline. That is really, I think, the core focus of claim scenarios involving termination.

How do you terminate? Is there a good or is there a bad way? I think there is a good way. Once you make the decision, we need to terminate this client. I'll say April, more and more firms, and I'm encouraged by this, are culling their clients. The way to do that is once you identify this as a client that maybe for whatever reason is one that the firm is no longer going to continue with, what you should do it should be in writing definitely. Claim scenarios involving accountants' liability situations are document intensive. This is not a car accident type of case where there are eyewitnesses, it is going to fall back on documentation.

Documenting a letter by a traceable delivery method, whether it's certified, whether it's traceable electronic communication, registered mail, whatever, a traceable delivery system or delivery method that says we are terminating. The ABC CPA firm is terminating the engagement effective immediately returning all original documents to them and then saying in the letter, you have important deadline and it's coming up here. You have to file your returns by this date or you have to file an extension by the state. We'll gladly connect with your successor tax preparer when you identify them and provide them whatever information they need so that they can I'm not going to do any work. But if they need some documents that we have or just want to converse, we'll make ourselves available.

Then one thing we always hear from clients is that they want to get into a tit-for-tat with the client. I want to put in the letter everything that I felt they did that made my life miserable. We always advise, don't do that. The termination letter is not an opportunity to go through a give and take, a back and forth with my client. It's not productive. You don't have to do that. You should have a termination clause and your engagement letter says, we can terminate at any time. If you want to put in there because the fees aren't being paid, I would say each side should be allowed to terminate. That's not the point to do it.

Plus, when you start arguing facts, facts they're subjective. People have their own ideas and their own version. Another important thing is, I think you should always say there's unpaid fees and that you owe me the outstanding fees because I don't want to give the disgruntled client the opportunity to say, well, obviously you terminated because you did something wrong and you didn't ask for your fees. That's why you didn't really pursue your fees. Saying, hey, it's legitimate work we did. This is the work that's finished. You owe us X amount. I think further buttresses the strength of the termination letter. There is a mitigating way to mitigate risk.

Nicole Graham: I just wanted to add a point on when you in your termination letter advised that there are outstanding fees, I would always characterize enclosing your final bill. You don't want a situation where they think paying the bill means that they get to stay on as a client or that they get to argue that. Definitely characterize it as the final bill for services and that making it clear that there will be no further services.

April Walker: Thank you so much. Nicole and Stan. This has been a lot of good information for our listeners to think about. Nicole, is there anything else you would like to leave us with as we're thinking about conflict of interest?

Nicole Graham: Sure. I think it's really important to have your conflict management practices and protocols in place. You want to make sure that you have your framework really built out and you want everyone in your firm to know what these practices and procedures are and explain to them why they're needed. These are not just for your intake people to go through because during the course of an engagement, these conflicts can change and if you have a conflict that changes, you need to address that with the client because you no longer have informed consent if they don't know that there was a change.

That's good. That's why it's imperative that not just your intake people know, but the whole firm knows and understands why you do that. It's important to create a culture where people are aware of their ethical obligations, they feel comfortable raising these questions and concerns to the appropriate channels within the firm. You want to make sure that your tone of the top is really stressing your ethical responsibilities, that there are clear reporting channels for your people to address their concerns with.

Really, as Stan said, documentation is so key in these engagements, you want to make sure that your conflict management process is properly documented. You want to have everything documented from when you identified the conflict to however it was managed and resolved, whether it was exiting the engagement with the client and having your disengagement letter or having your informed consent and putting your guardrails in place. That should all be properly documented.

Consistency is key because if you have the practices and procedures in place, you need to follow them. Because if you have a deviation from your practices and procedures, that will be exploited by a plaintiff's attorney and you're going to have to answer that in a lawsuit. A good way to have consistency is training and education with your people. Make sure that they are aware you have continuous training and workshops to stress their ethical responsibilities in managing these conflicts.

April Walker: I know that when I was in practice, we had a yearly review of the client list and we had to sign and say that there were no conflicts or if there were, we had to address them. I don't know if yearly was sufficient, but that was the message that I heard that it was important.

Nicole Graham: I think that's a great idea. I will say, to make it where that exercise doesn't become a check the box exercise for your practitioners, have that statement that they have to sign go out at the same time you're doing the training. So all of the things you're telling them to consider about ethics and conflicts are top of mind when they're reviewing that.

April Walker: Makes sense.

Nicole Graham: Stan, what's some closing thoughts you'd like to leave us with today?

Stan Sterna: Well, I think the first thing I'd like to note is that tax claim severity has been increasing in recent years. I've been doing this a long time and for years, tax claim frequency was and still is the highest. We receive more claims involving tax services than any other service offering and that's not surprising. It's the bread and butter of what CPAs do and accountants do. But we've seen an increase and it's driven mainly by FBAR and syndicated conservation easements, promoting them, lack of due diligence with regard to it and IRS disallowing the deduction and then the accountant gets sued. Those are some substantial damages involved.

The other thing is tax is always the lowest service line in terms of use of engagement letters. Obviously, as an auditor, our attest engagements are required to have engagement letters. But a lot of folks and we get a lot of questions from folks or a lot of comments that are tax preparer only and saying something along the lines of, well, I've never used engagement letters or my clients there's no expectation. I've had these clients for years and years. It's monotonous. It makes it look like I'm trying to hide something or cover my bases and all that.

It's really not true. You got to look at it this way, and it's an analogy that Nicole and I use a lot when we're talking to folks is you certainly wouldn't have somebody come into your home and do work on your house without a contract, without an engagement agreement, without knowing what they're going to do, what's the limitations of what they're going to do, what is the scope of what they're going to do, how much they're going to get paid, all those things. Why would the expectation be that the client is going to get their tax returns prepared or have tax work done without an engagement agreement? Just doesn't make make sense. They shouldn't be offended by it. It should just be something that is just as beneficial for them as it is for the CPA is Number 1.

Number 2 is that when you're dealing with a high-risk client, one of the first things that we go to high-risk client or not, Nicole can tell you this when we would deal with defending CPAs in a professional liability claim, first thing we would ask for is the engagement letter. Let me see what you're doing, what you agreed to do and with certain clients or with any client? What are your liability limitations that you have in engagement agreement?

A lot of folks use and we recommend highly and we have templates of terms and conditions where you can limit the liability. You can have damage caps if the other side agrees to it. You can shorten the statute of limitations. You can pinpoint what venue and what law will apply. A lot of different things to help limit your exposure. It's going to ultimately be the court's decision if you end up unfortunately in litigation as to whether or not they're going to uphold these provisions.

Well, I know some will if it's clear and concise, and it's not otherwise boilerplate in the engagement agreement. They'll look at two sophisticated parties, both going back and forth negotiating an engagement agreement. It was pretty clear what the expectation was and everybody knew what was intended. But even if it's not used or the court does not uphold it, we use it claims in defending the claim.

In settlement negotiation, you can use it as leverage to say to the other party, you're asking for exorbitant damages. You really need to discount them considerably because I have this cap, let's say, a damage cap in a provision limiting your damages to $10,000. Even in situations where maybe the court didn't uphold the cap, maybe it's subject to appeal, maybe a court just denied a summary judgment motion to limit the damages and said, you know what, we'll let the jury decide later. You can use that as leverage.

It's always an argument unless it's dead in the water, unless they dismiss it with prejudice, it's something that you can use if it's subject to appeal or if it's just going to be something they're going to argue at trial as an issue of fact and the court didn't dismiss it. I think those are two critical things that I'd like to tell your audience since we had the opportunity today.

April Walker: Those are good. I appreciate you giving us information and I know our listeners will appreciate it. Again, sometimes it's not the most fun topic to talk about or to hear about, but important nonetheless.

Stan Sterna: You're right. It's not fun, but it's fun when you avoid a bad situation because you remember something that either you read or maybe something Nicole and I said today, that makes it where you feel like it's well worth it.

April Walker: Very good. Thank you so much, Nicole and Stan. The name of our podcast is Tax Section Odyssey, so I like to think about our journeying together, we're journeying together as an odyssey towards a better profession. Just for a little bit of fun, I like to hear from our guests on what their journeys outside of tax are. Just quickly give me if you have a travel, something planned maybe for the holidays or something coming up that you're excited about.

Nicole Graham: Well, I'm very excited for the holiday season, but not for traveling, but I'm excited for traveling this winter for the ski season. I will be traveling up to Vermont to go skiing, I'll be traveling locally in Pennsylvania to go skiing, and I'm hoping to make it back out to these parts since we're in Denver to do a little skiing. Unfortunately, I can't tack on any days to this conference. But I'm very excited for the ski season.

April Walker: Wonderful. What about you, Stan?

Stan Sterna: Well, I'm almost hesitant to say this as a risk advisor, but I'm hoping to have a casualty-free holiday season. I ended up three stitches in my index finger at Thanksgiving carving the turkey, so I'm just going to watch someone else carve it and just eat and enjoy my holidays hopefully casualty-free. I love it. That sounds good.

April Walker: Just enjoying without a trip to the urgent care or the emergency room. That's perfect. Thank you again so much.

Again, this is April Walker from the AICPA Tax Section. This community is your go-to source for technical guidance and resources designed especially for CPA tax practitioners like you in mind. This is a podcast from AICPA & CIMA together as the Association of International Certified Professional Accountants. You can find us wherever you listen to your podcast and we encourage you to follow us so you don't miss an episode. If you already follow us, thank you so much and please feel free to share with a like-minded friend. You can also find us at aicpa-cima.com/tax and find our other episodes. One of which is an episode specifically about engagement letters with our CNA friends. You can find that and get access to other resources mentioned. Thank you so much and thank you for listening.

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