Last Sunday, I was watching The Good Wife. There was a scene where the lawyers figured out what their client had not been telling them and this piece of information was what was needed to win their client’s case. Of course, there was a reason why the client had been keeping this information from her lawyers; for all kinds of reasons revolving around her family’s moral beliefs, she did not want her family to know. So the lawyers asked, “So you want us to lie?” Her response was basically – Yes. As long as the truth does not come out, you tell them what you need to in order to win the case.
At that point, I turned to my husband in excitement and exclaimed, “I could never do that!” He looked at me, looking a little confused and I continued, “Well, the attorney advocates for their client but, as a forensic accountant, I advocate for the truth.”
This means that the lawyer’s primary interest and focus of support is their client whereas the expert, in this case the forensic accountant, is primarily focused on the truth. This does not mean that the lawyer can lie; the lawyers did not lie on that episode of The Good Wife. The American Bar Association’s Rules of Professional Conduct state that a lawyer “shall not knowingly make a false statement of material fact.” (Can’t you just tell that was written by lawyers?) The lawyer is not supposed to lie but they are not supposed to lie “knowingly”. There is no requirement that the lawyer know the truth but there is an ethical rule that the lawyer represent their client “zealously.” As a result, the lawyer could choose to believe their client’s version of a story and work to produce evidence in support of that story (advocating for the client!) There is also the issue of client-attorney privilege which means a lawyer does not have to disclose what their client tells them in confidence.
This is not the case with the forensic accountant. First, there is an expectation that a testifying expert will give an opinion based on fact. Also, the CPA financial forensics expert is bound by the AICPA’s professional standards and conduct considerations. The CPA is to be impartial, honest and free of conflict. This is because the CPA may only advocate their position. So, both as an expert witness and as a CPA, the forensic accountant is bound by a duty to the truth, not the client.
The forensic accountant takes facts, analyses them and gives impartial opinions, based on these facts, whether or not it is what the client wants to hear. The client should take this into consideration when hiring an expert. Whether the forensic accountant is hired as a consulting expert or as a testifying expert determines whether or not the forensic accountant’s opinions are discoverable. But that is a tale for another episode of The Good Wife.