POLICING THE PROFESSIONS

Part One: Gravitas or gravy? What happens when professionals go rogue?

By Cherese Thakur 28 June 2019

In recent years, the names of several respectable firms in fields such as auditing, law, accounting and management consulting have come to be associated with corruption, grand-scale malfeasance and State Capture. How is this possible? Part One of a two-part series.

A certain weight is accorded to the work of professionals, the weight that is denied to blue-collar and routine non-manual workers. The word “professional” generally conjures up favourable associations — authority, knowledge, respectability, ethical behaviour and prestige.

Despite this, in recent years, the names of several respectable firms in fields such as auditing, law, accounting and management consulting have come to be associated with corruption, grand-scale malfeasance and State Capture. How is this possible?

First, it is important to understand what is meant by “profession”. By definition, professions entail “work that needs special training or a particular skill, often one that is respected because it involves a high level of education”. According to EC Hughes:

Professionals profess. They profess to know better than others the nature of certain matters and to know better than their clients what ails them or their affairs. That is the essence of the professional idea and the professional claim.”

It is clear, then, that a profession is more than a mere occupation. In the 1950s, P Wright formulated a list of essential characteristics of professionals:

  • The offering of service to the public;

  • The possession of special skill;

  • Having undergone specified training and education;

  • The possession of privilege or state recognition;

  • Membership of a self-disciplined group, with a “community of interest in theory and in fact among the members of the calling”; and

  • A measure of unselfishness or freedom from purely personal considerations”.

The designation of “professional” has become aspirational, with a greater number of occupations or trades seeking to show that they have “professionalised”.

Wright’s checklist certainly captures the rosier aspects of professions, including that their work has an element of public service. In practice — as has been shown by the growing accusations of professional misconduct in the context of State Capture — there is a need for the public to remain circumspect when engaging the services of professionals. The designation as “professional” does not automatically mean that the holder will act ethically — in fact, it can provide a veneer of rectitude to be exploited.

Cuckoos in the ‘professional’ nest?

Is it possible for an industry to benefit from the positive associations of professionalism without the institutional safeguards against misconduct? For instance, a consideration of Wright’s factors with reference to management consulting reveals several missing elements. Management consultants are often highly skilled, but that skill is not necessarily specialised.

There are no standardised tests that must be completed before one can practise as a management consultant. Each management consulting firm determines its own policies for recruitment as well as the syllabus for internal training (if any). There is no professional organisation with which management consultants are required to register which sets standards regarding who can perform the work, how this is done, or provide guidelines as to fees.

Controls on consultants’ behaviour to ensure they conduct themselves ethically are exerted from within the consulting firm. Crucially, their only responsibility is to their clients — consultants are not required to take broader public considerations into account when dispensing advice.

It follows that management consultants are not actually professionals in the formal sense. The involvement of management consultants in corruption and State Capture should give those within the industry pause for thought. The move towards registration with professional associations may be a step in the right direction, particularly if this means subjecting firms to a code of conduct that is enforced through more transparent processes.

Calling professionals to account

When a member of the public suspects professional misconduct, they should turn to the relevant oversight body. These could be creatures of a statute or in the form of a voluntary professional association with an enforceable code of conduct.

Law

Lawyers play an invaluable role in mitigating liability for their clients — but that role is not boundless. It is circumscribed by the law, including the Legal Practice Act. Attorneys and advocates are also subject to rules and codes of conduct promulgated (and enforced) by the Legal Practice Council.

The public can lodge complaints against legal practitioners by contacting the relevant provincial office of the council. Complaints are referred to the investigating committee which conducts an investigation to determine whether or not a prima facie case of misconduct exists. If so, it can refer the complaint to the council for the purpose of adjudication by the disciplinary committee.

Given its fairly recent assumption of the role of the regulator, it remains to be seen how the council will fare in maintaining discipline in the profession after taking over the reins of responsibility from the respective Law Societies and Bar Councils.

Auditing

The auditing profession in South Africa is regulated by the Auditing Professions Act. This act establishes the Independent Regulatory Board for Auditors (IRBA) which is tasked with overseeing the conduct of members of the profession.

In its 2018 annual report, the CEO of IRBA, Bernard Agulhas, identified the restoration of the auditing profession’s reputation as a focus area for the regulator. In line with this, IRBA undertook to roll out several initiatives to restore the public’s confidence in auditors over a period of two years. While this is a reactive measure, it is encouraging to see a concerted effort being applied to the issue.

Accounting

The accounting profession is complex and can be accessed through a range of qualifications, each relating to a different type of accounting. Probably the most well-known accounting professional is the chartered accountant, bearer of the designation CA (SA). By law, chartered accountants must register with the South African Institute of Chartered Accountants and subject themselves to its code of conduct. Professional accountants, on the other hand, are required to have a Bachelor of Commerce degree, complete a period of training, and successfully complete the Professional Evaluation examination which is administered by the South African Institute of Professional Accountants (SAIPA).

These are just two examples of ways to enter the accounting profession. Despite the many types of an accountant and myriad qualifications that can be obtained, SAIPA recently pointed out a concerning fact: There is no magic in the term “accountant” on its own. That means that anyone, regardless of qualification, can undertake the work of keeping financial records, as long as they do not style themselves using defined titles such as “chartered accountant” or “professional accountant”. Such persons would not have to be registered with any professional association.

SAIPA has highlighted the need for a statute that compels all accountants to register with a professional association. This is clearly a necessity, particularly as it is vulnerable consumers who are more likely to interact with unregulated accountants and, as a result, be at risk of detriment to their financial affairs.

SAIPA recently joined five other regulatory bodies in signing a memorandum of understanding to “pool their resources and institutional knowledge to foster a culture of accountability and restore credibility to the country’s private and public sector”. This is a promising development, particularly as professionals may hold memberships of a number of professional associations, which increases the need for coordination.

The Companies and Intellectual Properties Commission (CIPC)

While the bulk of enforcement rests with professional associations, there is another body with regulatory powers that is lately showing its teeth. In 2018, CIPC laid criminal complaints against KPMG, McKinsey and software company SAP, alleging contraventions of the Companies Act.

This action by CIPC is certainly welcome, particularly as criminal sanctions may be more effective than those that can be applied by other regulators, such as disbarment or prohibition from practice. Even if convictions are not eventually obtained, the real possibility of facing criminal proceedings might act as a deterrent against future malfeasance.

Watching the watchers

Regulatory bodies and professional associations are vital in ensuring that professionals adhere to ethical standards. They are, in effect, custodians of the integrity of their respective professions. It is important that they are well-resourced and capacitated to handle complaints effectively. Moreover, a degree of transparency is needed so that the public at large, and not only professionals in the respective industries, are aware of what is being done to ensure that professionals conduct themselves ethically and in line with prescribed standards. DM

Cherese Thakur is a legal researcher at the Helen Suzman Foundation. Her research focuses on issues of State Capture, corruption and public maladministration.

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