| (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.
|
| Source Note: The provisions of this §501.82 adopted to be effective June 11, 2000, 25 TexReg 5340; amended to be effective February 17, 2008, 33 TexReg 1096; amended to be effective June 17, 2009, 34 TexReg 3947; amended to be effective December 7, 2011, 36 TexReg 8236; amended to be effective June 5, 2019, 44 TexReg 2720; amended to be effective June 3, 2020, 45 TexReg 3634 |
