The efforts to win legal professional privilege for accountants at the Court of Appeal recently have been worth watching, not least because the protagonists behind the case now appear ready to push the issue as far as possible in an effort to win accountants a level playing field with lawyers.
I think the argument over the principle, frankly, is won. The issue is really application.
In court the ICAEW argued (suggested) that the privilege should be applied to “chartered” accountants offering tax advice on the basis that tax advice equals “legal” advice, therefore it should be privileged.
But note the careful use of the term “chartered”. Accountants have to argue for privilege to apply to chartered accountants because they are “subject to professional controls and ethical duties equivalent to those to which lawyers are subject.” It is the means by which an accountant can claim to have the same status as a lawyer.
Chatereds therefore have a duty to protect confidentiality, act with integrity and independence but, most importantly, chartereds are subject to “a regulatory system which enforce the profession’s rule and provide redress for clients”. In other words they can be held to account for their actions through formal disciplinary procedures.
Very clearly the ICAEW has not been arguing for privilege to apply to anyone at all who wants to call themselves an accountant. They want it restricted, and they want it restricted to the group of qualified professionals who would otherwise want the term “accountant” restricted to them. The chartereds.
This is an intriguing development because by extension this argument is turning into one about who is qualified to offer advice and about how they are perceived by the public.
But, should the argument be successful, privilege will extend only to the chartereds.
By winning this legal boost the chartered would indeed have gone some way down the road to creating a basis in law for helping the public understand who is properly qualified to do their accounts or offer legal advice. It would give them a legal underpinning that the unqualifieds and the cowboys could not possibly claim. Bodies outside of the chartered circle would find themselves with members who now had a distinct legal disadvantage.
How far from that position then to persuading government that the term accountant really should have a restricted use? After all, winning privilege would have all but done the job anyway.
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