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Part 29 Unprofessional Conduct

Section 29.1 General provisions.

(a) Unprofessional conduct shall be the conduct prohibited by this section. The provisions of these rules applicable to a particular profession may define additional acts or omissions as unprofessional conduct and may establish exceptions to these general prohibitions.

(b) Unprofessional conduct in the practice of any profession licensed, certified or registered pursuant to Title VIII of the Education Law, except for cases involving those professions licensed, certified or registered pursuant to the provisions of Article 131 or 131-B of such law in which a statement of charges of professional misconduct was not served on or before July 26, 1991, the effective date of Chapter 606 of the Laws of 1991, shall include:

(1) willful or grossly negligent failure to comply with substantial provisions of Federal, State or local laws, rules or regulations governing the practice of the profession;

(2) exercising undue influence on the patient or client, including the promotion of the sale of services, goods, appliances or drugs in such manner as to exploit the patient or client for the financial gain of the practitioner or of a third party;

(3) directly or indirectly offering, giving, soliciting, or receiving or agreeing to receive, any fee or other consideration to or from a third party for the referral of a patient or client or in connection with the performance of professional services;

(4) permitting any person to share in the fees for professional services, other than: a partner, employee, associate in a professional firm or corporation, professional subcontractor or consultant authorized to practice the same profession, or a legally authorized trainee practicing under the supervision of a licensed practitioner. This prohibition shall include any arrangement or agreement whereby the amount received in payment for furnishing space, facilities, equipment or personnel services used by a professional licensee constitutes a percentage of, or is otherwise dependent upon, the income or receipts of the licensee from such practice, except as otherwise provided by law with respect to a facility licensed pursuant to article 28 of the Public Health Law or article 13 of the Mental Hygiene Law;

(5) conduct in the practice of a profession which evidences moral unfitness to practice the profession;

(6) willfully making or filing a false report, or failing to file a report required by law or by the Education Department, or willfully impeding or obstructing such filing, or inducing another person to do so;

(7) failing to make available to a patient or client, upon request, copies of documents in the possession or under the control of the licensee which have been prepared for and paid for by the patient or client;

(8) revealing of personally identifiable facts, data or information obtained in a professional capacity without the prior consent of the patient or client, except as authorized or required by law;

(9) practicing or offering to practice beyond the scope permitted by law, or accepting and performing professional responsibilities which the licensee knows or has reason to know that he or she is not competent to perform, or performing without adequate supervision professional services which the licensee is authorized to perform only under the supervision of a licensed professional, except in an emergency situation where a person's life or health is in danger;

(10) delegating professional responsibilities to a person when the licensee delegating such responsibilities knows or has reason to know that such person is not qualified, by training, by experience or by licensure, to perform them;

(11) performing professional services which have not been duly authorized by the patient or client or his or her legal representative;

(12) advertising or soliciting for patronage that is not in the public interest:

(i) Advertising or soliciting not in the public interest shall include, but not be limited to, advertising or soliciting that:

(a) is false, fraudulent, deceptive, or misleading;

(b) guarantees any service;

(c) makes any claim relating to professional services or products or the cost or price therefor which cannot be substantiated by the licensee, who shall have the burden of proof;

(d) makes claims of professional superiority which cannot be substantiated by the licensee, who shall have the burden of proof; or

(e) offers bonuses or inducements in any form other than a discount or reduction in an established fee or price for a professional service or product.

(ii) The following shall be deemed appropriate means of informing the public of the availability of professional services:

(a) informational advertising not contrary to the foregoing prohibitions; and

(b) the advertising in a newspaper, periodical or professional directory or on radio or television of fixed prices, or a stated range of prices, for specified routine professional services, provided that if there is an additional charge for related services which are an integral part of the overall service being provided by the licensee, the advertisement shall so state, and provided further that the advertisement indicates the period of time for which the advertised prices shall be in effect.

(iii) (a) all licensees placing advertisements shall maintain, or cause to be maintained, an exact copy of each advertisement, transcript, tape or videotape thereof as appropriate for the medium used, for a period of one year after its last appearance. This copy shall be made available for inspection upon demand of the Education Department;

(b) a licensee shall not compensate or give any thing of value to representatives of the press, radio, television or other communications media in anticipation of or in return for professional publicity in a news item;

(iv) Testimonials, demonstrations, dramatizations or other portrayals of professional practice are permissible provided they otherwise comply with the rules of professional conduct and further provided that the following conditions are satisfied:

(a) the patient or client expressly authorizes the portrayal in writing;

(b) appropriate disclosure is included to prevent any misleading information or imagery as to the identity of the patient or client;

(c) reasonable disclaimers are included as to any statements made or results achieved in a particular matter;

(d) the use of fictional situations or characters may be used if no testimonials are included; and

(e) fictional client testimonials are not permitted;

(13) failing to respond within 30 days to written communications from the Education Department or the Department of Health and to make available any relevant records with respect to an inquiry or complaint about the licensee's unprofessional conduct. The period of 30 days shall commence on the date when such communication was delivered personally to the licensee. If the communication is sent from either department by registered or certified mail, with return receipt requested, to the address appearing in the last registration, the period of 30 days shall commence on the date of delivery to the licensee, as indicated by the return receipt;

(14) violating any term of probation or condition or limitation imposed on the licensee by the Board of Regents pursuant to Education Law, section 6511.

29.10 Special provisions for the profession of public accountancy.

a. Unprofessional conduct in the practice of public accountancy shall include all conduct prohibited by Section 29.1 of this Part, except as provided in this section, and shall also include the following:

1. in expressing an opinion on representations in the financial statements which the public accountant examined:

i. failing to disclose a material fact known to the licensee which is not disclosed in the financial statements but disclosure of which is necessary to make the financial statements not misleading;

ii. failing to report any material misstatement known to the licensee to appear in the financial statements;

iii. failing to acquire sufficient information to warrant the expression of an opinion, or the licensee's exceptions are sufficiently material to negate the expression of an opinion; or

iv. failing to direct attention to any material departure from generally accepted accounting principles or to disclose any material omission of generally accepted auditing procedures applicable in the circumstances;

2. allowing any person other than a partner or a duly authorized employee to engage in the public practice of accountancy in the licensee's name or in the name of his or her firm, this paragraph not being intended to apply to the use of firm names by successors;

3. issuing in the public accountant's name, or permitting his or her firm to issue in its name, a report purporting to be based upon an examination by the licensee or his or her firm of financial statements, when any material portion of the examination of such statements and related records, including the examination of any material, financial statements or data incorporated in the financial statements reported upon, has not been made either:

i. by the public accountant or a partner or an employee; or

ii. with the approval of the public accountant or his or her firm, by a certified public accountant of a state, territory or possession of the United States or the District of Columbia or the holder of an equivalent certificate issued by the proper authorities of another country, or a firm partially composed of such certified public accountants or holders of equivalent certificates, or by a public accountant of the State of New York;

4. making a written forecast of future transactions or permitting such a forecast to be issued in the licensee's name or his or her firm's name without setting forth:

i. the character of work performed;

ii. the sources of information used and major assumptions made, and the degree of responsibility taken with respect thereto; and

iii. a statement that the public accountant or firm does not vouch for the achievability of the forecast;

5. expressing an independent opinion or knowingly permitting his or her firm to express an opinion on financial statements of an enterprise, whether such enterprise is a for-profit or a not-for-profit enterprise, if the licensee or a partner or employee in the firm is not independent with respect to such enterprise.

Independence will be considered to be impaired if the public accountant, or a partner in the firm, owns or is committed to acquire any direct or material indirect financial interest in the enterprise or had a direct or material indirect financial relationship with any officer, director, employee or principal stockholder of the enterprise. Independence will be considered to be impaired if the licensee, a partner in the firm or a member of his or her or the partner's immediate family, is or has been a director or officer of the enterprise, or is or has been involved in any situation creating a conflict of interest, during the period covered by the examination or at the time of issuance of a report;

6. offering or rendering professional services under a contingency fee arrangement when serving a client for whom the licensee performs: an audit or review of a financial statement; or a compilation of a financial statement when the licensee knows or has reason to know that a third party will use the financial statement and the licensee's compilation report does not disclose a lack of independence; or an examination of prospective financial information; or an original or amended tax return or claim for a tax refund; or any public accounting services for a client during the period in which the licensee is engaged in the foregoing services for that client or for any period covered by historical financial statements involving such foregoing services. For the purposes of this paragraph, a contingency fee shall mean a fee established for the performance of any service pursuant to an arrangement whereby no fee, or lesser fee, will be charged unless a specified finding or result is attained, or where the fee is otherwise contingent upon the finding or result of such service. Fees are not regarded as contingent if fixed by courts or other public authorities or, in tax matters, if determined on the basis of the results of judicial proceedings or the findings of governmental agencies. Fees charged may vary depending on the complexity of the service rendered;

7. permitting the public accountant's name to be associated with statements purporting to show financial position or results of operations in such a manner as to imply that he or she is acting as an independent certified public accountant or public accountant, unless:

i. the licensee has complied with generally accepted auditing standards. The State Board for Public Accountancy may consider statements on auditing standards promulgated by the United States Securities and Exchange Commission or the Public Company Accounting Oversight Board for licensees subject to such requirements, or a recognized national accountancy organization whose standards are generally accepted by other regulatory authorities in the United States, including but not limited to: the American Institute of Certified Public Accountants to be interpretations of generally accepted auditing standards. Departures from such standards, or other standards considered by the State Board to be applicable in the circumstances, must be justified by a licensee who does not follow them; and

ii. the licensee expresses an opinion on financial statements or financial data presented in conformity with generally accepted accounting principles. The State Board for Public Accountancy may consider those principles promulgated by a recognized national accountancy organization whose standards are generally accepted by other regulatory authorities in the United States, including but not limited to: the Financial Accounting Standards Board, the Government Accounting Standards Board, and the International Accounting Standards Board, to be generally accepted accounting principles. If financial statements or data contain departures from generally accepted accounting principles but the licensee can demonstrate that the financial statements or data would have been misleading had generally accepted accounting principles been followed, the licensee's opinion should describe the departure, its approximate effect if practicable, and the reasons why compliance with generally accepted accounting principles would have otherwise been misleading;

8. refusing to furnish to a client upon request:

i. copies of tax returns; or

ii. copies of reports or other documents that were previously issued to or for such client; or

iii. any accounting or other records belonging to or obtained for the client which the public accountant may have had occasion to remove from the client's premises or to receive for the client's account; but this shall not preclude making copies of such documents when they form the basis for work done by the licensee; but in no event shall the public accountant have a lien on these accounting or other records; or

iv. copies of information contained in an accountant's working papers, if such information would ordinarily constitute part of the client's books and records and is not otherwise available to the client. Such information shall include client owned records or records which the licensee receives from a client. In addition, it shall include any records, tax returns, reports, or other documents and information which are contained in an accountant's working papers that were prepared for the client by the accountant and for which the accountant has received payment from the client;

v. after the licensee has complied with the foregoing requirements by providing information to a client, it shall not constitute unprofessional conduct for an accountant to refuse to provide the same information to the client pursuant to a subsequent request by that client;

vi. this paragraph shall apply in lieu of Section 29.1(b)(7) of this Part;

9. permitting any partner, or employee acting as such, to perform any service for his or her client which the licensee or the firm is not permitted to perform;

10. soliciting or advertising for clients in violation of Section 29.1(b)(12) of this Part, which shall be interpreted as follows: soliciting and advertising not in the public interest shall include, but not be limited to, obtaining clients through any other corporation or business used as a "feeder"; using the title of certified public accountant or public accountant together with that of any other business or occupation on any letterhead, card, circular or other media, if the certified public accountant or public accountant conjointly engages in such business or occupation with his or her public accounting practice; provided, however, that nothing herein shall prohibit a certified public accountant or public accountant licensed to practice another profession from including such professional designation on his or her letterhead or business card or upon any listing or other designation of his or her office;

11. failing to maintain and/or submit work papers in accordance with the requirements of this paragraph.
i. Applicability of the requirement. The documentation requirements of subparagraph (iii) shall apply to work papers in support of work products issued on or after January 3, 2003. The retention requirements of subparagraph (iv) of this paragraph shall apply to the licensee's work papers that exist on or after January 3, 2003.

ii. Definition. As used in this paragraph:

a. Work papers means the licensee's records of the procedures applied, the tests performed, the information supporting, and the material conclusions reached for a work product produced in the practice of public accountancy as defined in section 7401 of the Education Law, including but not limited to an audit, review, compilation, forecast or projection. Work papers may include, but are not limited to, programs used to perform professional services, analyses, memoranda, letters of confirmation and representations, copies or abstracts of company documents and schedules or commentaries prepared or obtained by the licensee. Work papers may be in handwritten, typewritten, printed, photocopied, photographed, or electronic form, or in any other form of letters, words, pictures, sounds, or symbols.

b. Substantive alterations to work papers means changes to work papers that alter the nature, timing, extent, and results of the procedures performed for the work product; alter the information obtained and the conclusions reached for the work product; and alter the identity of the persons who performed and reviewed the work for the work product.

iii. Documentation in work papers.

a. Work papers shall contain sufficient documentation to enable a reviewer with relevant knowledge and experience, but having no previous connection with the specific work product, to understand the nature, timing, extent, and results of the procedures performed for the work product, information obtained and conclusions reached for the work product, and the identity of the persons who performed and reviewed the work for the work product.

b. Within 45 days of the issuance of the work product, a complete set of work papers shall be retained. Any substantive alteration to work papers made subsequent to the issuance of the work product shall be clearly documented by indicating the subject of the alteration, the date of the alteration, and the reason for the alteration.

c. Substantive alterations to work papers resulting from post-issuance review procedures shall be identified in an addendum to the work papers. Such alterations shall be clearly documented by indicating the subject of the alteration, the date of the alteration, and the reason for the alteration.

iv. Retention of work papers.

a. Licensees shall ensure that a formal written policy is established for the retention of work papers that is in accordance with the requirements of this subparagraph. Licensees employed by an employer authorized to practice public accountancy shall have met this requirement for a formal written policy, for work papers produced under such employment, if their employer has established a formal written policy for the retention of work papers that is in accordance with the requirements of this subparagraph. Such written policy shall identify the process and authorization requirements for the destruction of work papers after the expiration of the retention period.

b. Licensees shall ensure that work papers are retained for a minimum of seven years after the date of issuance of the work product, unless licensees are required by law to retain such records for a longer period. Work papers may be retained for a period that is longer than seven years from the date of the issuance of the work product and may be retained permanently.

c. Licensees shall ensure that work papers are retained during the term of a New York State Education Department investigation or disciplinary proceeding by the New York State Education Department that is reasonably related to such work papers. Licensees shall not dispose of such work papers until notified in writing by the New York State Education Department of the closure of the investigation or until final disposition of the disciplinary proceeding.

d. If work papers are retained in an electronic form, the licensee shall ensure that such work papers are capable of being accessed, for read-only purposes, throughout the required retention period established for the work papers and are safeguarded through sound computer security procedures to prevent the unauthorized modification of the work papers.

e. Work papers shall not be destroyed or otherwise disposed of at a time or in a manner that is inconsistent with applicable requirements of the law.

v. Availability of work papers to the department. A licensee shall make available to the New York State Education Department at its request work papers that the department determines to be relevant to an inquiry or complaint about a licensee's unprofessional conduct, in accordance with the requirements of section 29.1(b)(13) of this Part.

12. in determining "incompetence" or "negligence" within the meaning of Section 6509(2) of the Education Law, the Board of Regents and the Education Department may consider among others, the generally accepted auditing standards and accounting principles promulgated by the American Institute of Certified Public Accountants and by the Financial Accounting Standards Board (as referenced in paragraph [7] of this subdivision);

b. Unprofessional conduct shall also include permitting any person to share in the income of a firm practicing public accountancy other than a person authorized to practice public accountancy who is a sole proprietor, a partner, or an officer, director or shareholder of a professional corporation or an employee thereof. This prohibition shall not prevent the payment of salaries or other compensation to employees of a public accounting firm, provided that the total of salaries and other compensation of unlicensed employees which is computed in whole or in part on the basis of a percentage of the income or receipts of the firm does not exceed 35 percent of the annual net income of the firm. For the purposes of this subdivision, annual net income of the firm shall be computed without deduction for total compensation paid to a sole proprietor, partners, or officers, directors or shareholders of professional corporations. Except as provided in this subdivision, it shall be unprofessional conduct for a licensee or professional accounting firm to enter into any arrangement or agreement whereby the amount to be paid for furnishing of space, facilities, equipment or personnel services to the licensee or firm is computed in whole or in part on the basis of a percentage of, or is otherwise dependent upon, the income or receipts of the licensee or firm. The provisions of this subdivision shall apply in lieu of Section 29.1(b)(4) of this Part.

c. Unprofessional conduct shall also include revealing of personally identifiable facts, data or information obtained in a professional capacity without the prior consent of the client, except such information may be disclosed as necessary to other licensees of the profession conducting professional standards or ethics reviews, or as otherwise authorized or required by law.

d. The definitions of unprofessional conduct prescribed in sections 29.1 and 29.10 of this Part that apply to licensees shall also apply to public accountancy firms, meaning any form of business organization that is authorized to engage in the practice of public accountancy and is subject by law to Regents disciplinary proceedings and penalties in the same manner and to the same extent as licensees, unless public accountancy firms are specifically exempted from the definitions of unprofessional conduct in such sections of this Part.

e. Reportable events.

1. For purposes of this subdivision, public accountancy firm shall have the meaning defined in subdivision (d) of this section.

2. Unprofessional conduct in the practice of public accountancy shall include failure of a licensee or public accountancy firm to submit a written report, as prescribed in paragraph (3) of this subdivision, to the department within 45 days of the occurrence of any of the following events, even though all available appeals have not yet been exhausted, unless exempted from disclosure pursuant to paragraph (5) of this subdivision or excused for good cause as determined by the department, such as a circumstance beyond the licensee's or public accountancy firm's control that prevented timely compliance:

i. conviction of a licensee, a registered partnership, or public accountancy firm in New York State or any other jurisdiction of a crime that constitutes a felony or misdemeanor in the jurisdiction of conviction. For purposes of this subparagraph, conviction shall include a plea of guilty or no contest, or a verdict or finding of guilt that has been accepted and entered by a court of competent jurisdiction;

ii. receipt of a court decision awarding a monetary judgment in excess of twenty-five thousand dollars in a civil action brought in a court of competent jurisdiction or an award in excess of twenty-five thousand dollars in an arbitration proceeding in which the licensee, the registered partnership, or public accountancy firm is found to be liable for:

a. negligence, gross negligence, recklessness, or intentional wrongdoing relating to the practice of public accountancy in New York State;

b. fraud or misappropriation of funds relating to the practice of public accountancy in New York State;

c. breach of fiduciary responsibility relating to the practice of public accountancy in New York State; or

d. preparation, publication, and/or dissemination of false, fraudulent, and/or materially incomplete or misleading financial statements, reports, or information relating to the practice of public accountancy in New York State;

iii. receipt of written notice of imposition of a disciplinary penalty upon the licensee, the registered partnership, or public accountancy firm, including but not limited to, censure, reprimand, sanction, probation, monetary penalty, suspension, revocation, or other limitation on practice, relating to the practice of public accountancy, issued by:

i. the United States Securities and Exchange Commission or the Public Company Accounting Oversight Board;

ii. another agency of the United States government that regulates the practice of public accountancy;

iii. an agency of the government of another state or territory of the United States that regulates the practice of public accountancy; or

iv. an agency of the government of another country that regulates the practice of public accountancy;

3. The report to the department shall consist of the following:

i. for a conviction as prescribed in subparagraph (i) of paragraph (2) of this subdivision, the report shall consist of a copy of the certificate of conviction, or comparable document of the court;
ii. for a court decision or arbitration award as prescribed in subparagraph (ii) of paragraph (2) of this subdivision, the report shall consist of a copy of the court decision or arbitration award and any findings of facts or special verdict form;

iii. for a written notice of imposition of a disciplinary penalty upon the licensee, as prescribed in subparagraph (iii) of paragraph (2) of this subdivision, the report shall consist of a copy of the notice; or

iv. in lieu of the documentation described in subparagraphs (i), (ii), or (iii) of this paragraph, a narrative statement on a form prescribed by the department setting forth information specified by the department, including but not limited to the date and jurisdiction of the court decision and/or judgment, conviction, arbitration award, or notice of imposition of disciplinary penalty, as applicable.

4. A public accountancy firm shall be responsible for reporting reportable events relating to the public accountancy firm, and shall designate an individual to make such reports. An individual licensee shall be responsible for reporting those reportable events specifically relating to the licensee. Licensees who are partners in a registered partnership may designate an individual to report reportable events relating to the registered partnership, but each such licensee shall be responsible for ensuring the reporting of the reportable events.

5. Failure to submit a report which is subject to a confidentiality order, clause or provision in a court decision or arbitration award under subparagraphs (i) or (ii) of paragraph (2) of this subdivision shall not be deemed to constitute unprofessional conduct under the following conditions:

i. the court or arbitrator has included language in such decision that specifically provides that the decision shall not be reported to the department pursuant to this subdivision; or

ii. the licensee or firm demonstrates to the satisfaction of the department that the licensee or firm explicitly informed the court or arbitrator in writing prior to execution of any confidentiality order, clause or provision of the duty to report such decision to the department and the effect of any confidentiality order, clause or provision on such duty of disclosure, and the confidentiality order, clause or provision does not expressly provide for disclosure to the department.

6. Reports submitted to the department in accordance with this subdivision shall be files of the department relating to the investigation of possible instances of professional misconduct and shall be confidential in accordance with the provisions of subdivision (8) of section 6510 of the Education Law.

7. Nothing in this subdivision shall have any effect upon the duty of the licensee or firm to respond fully to all questions on any re-registration application which shall become due, or to respond to written communications from the department pursuant to section 29.1(b)(13) of this Part.

f. Unprofessional conduct in the practice of public accountancy shall include:

1. having admitted guilt to or having been found guilty of improper professional practice or professional misconduct in a disciplinary proceeding brought by the United States Securities and Exchange Commission or the Public Company Accounting Oversight Board, where the conduct upon which the finding or admission of guilt was based would, if committed in New York State, constitute professional misconduct under the laws of New York State, provided that in any adversary proceeding conducted pursuant to subdivision (3) of section 6510 of the Education Law, the individual licensee or public accountancy firm shall have the rights set forth in that subdivision; or

2. having voluntarily consented to a revocation or temporary or permanent suspension of the authority to appear or practice as an accountant before the United States Securities and Exchange Commission or the Public Company Accounting Oversight Board, or having voluntarily surrendered such authority; or having voluntarily consented to a revocation or temporary or permanent suspension from further association with any public accounting firm registered pursuant to Chapter 98 of Title 15 of the United States Code, or having voluntarily surrendered such authority; or having voluntarily consented to a revocation or temporary or permanent suspension of registration under Chapter 98 of Title 15 of the United States Code, or a voluntary surrender of such registration; all after a disciplinary action was commenced by the United States Securities and Exchange Commission or the Public Company Accounting Oversight Board where any conduct charged resulting in the consent to such revocation or temporary or permanent suspension or surrender would, if committed in New York State, constitute professional misconduct under the laws of New York State; and where the date of such consent or surrender is on or after January 1, 2007. In any adversary proceeding conducted pursuant to subdivision (3) of section 6510 of the Education Law, the individual licensee or public accountancy firm shall have the rights set forth in that subdivision.

g. Unprofessional conduct in the practice of public accountancy, as such practice relates to the audit in the practice of public accountancy of an issuer of publicly traded securities that is subject to the Federal Sarbanes-Oxley Act of 2002, shall include, for purposes of subdivision (f) of this section, a failure of a licensee or public accountancy firm, as appropriate, to meet the standards prescribed in the following provisions of Federal law: subdivisions (a), (b), (g), (h), (i), (j), (k), and/or (l) of section 78j-1 of Title 15 of the United States Code (United States Code, 2000 edition, Volume 7, and Supplement II , Volume 1 to the 2000 edition; Superintendent of Documents, U.S. Government Printing Office, Stop SSOP, Washington, DC 20402-0001; available at the NYS Education Department, Office of the Professions, 2M West Wing, Education Building, 89 Washington Avenue, Albany, NY 12234). To the extent that the United States Securities and Exchange Commission or the Public Company Accounting Oversight Board have exempted or excepted licensees or public accountancy firms from these standards, such exemptions or exceptions shall also apply to the requirements of this subdivision.