|(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; nor (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. (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 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