1. (a) A certificate or registration holder shall not use or participate in the use of:

   1. (1) any written, oral, or electronic communication having reference to the certificate or registration holder's professional services that contains a false, fraudulent, misleading or deceptive statement or claim; nor
   2. (2) any written, oral or electronic communication that refers to the certificate or registration holder's professional services that is accomplished or accompanied by coercion, duress, compulsion, intimidation, threats, overreaching, or vexatious or harassing conduct.

2. (b) Definitions:

   1. (1) A "false, fraudulent, misleading, or deceptive statement or claim" includes, but is not limited to, a statement or claim which:

      1. (A) contains a misrepresentation of fact;
      2. (B) is likely to mislead or deceive because it fails to make full disclosure of relevant facts;
      3. (C) is intended or likely to create false or unjustified expectations of favorable results;
      4. (D) implies educational or professional attainments or licensing recognition not supported in fact;
      5. (E) represents that professional 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 services that do not disclose all variables that may reasonably be expected to affect the fees that will in fact be charged;
      6. (F) contains other representations or implications that in reasonable probability will cause a reasonably prudent person to misunderstand or be deceived;
      7. (G) implies the ability to improperly influence any court, tribunal, regulatory agency or similar body or official due to some special relations;
      8. (H) consists of self-laudatory statements that are not based on verifiable facts;
      9. (I) makes untrue comparisons with other accountants; or
      10. (J) contains testimonials or endorsements that are not based upon verifiable facts.
   2. (2) Broadcast -- Any transmission over the airwaves or over a cable, wireline, Internet, or e-mail system.
   3. (3) Coercion -- Compelling by force so that one is constrained to do what his free will would otherwise refuse.
   4. (4) Compulsion -- Driving or urging by force or by physical or mental constraint to perform or forbear from performing an act.
   5. (5) Direct personal communication -- Either a face-to-face meeting or a conversation by telephone.
   6. (6) Duress -- Any conduct which overpowers the will of another.
   7. (7) Harassing -- Any word, gesture, or action which tends to annoy, alarm, and verbally abuse another person.
   8. (8) Intimidation -- Willfully to take, or attempt to take, by putting in fear of bodily harm.
   9. (9) Overreaching -- Tricking, outwitting, or cheating a person into doing an act which he would not otherwise do.
   10. (10) Threats -- Any menace of such a nature and extent as to unsettle the mind of the person on whom it operates, and to take away from his acts that free and voluntary action which alone constitutes consent.
   11. (11) Vexatious -- Irritating or annoying.
3. (c) It is a violation of these rules for a certificate or registration holder to persist in contacting a prospective client when the prospective client has made known to the certificate or registration holder, or the certificate or registration holder should have known the prospective client's desire not to be contacted by the certificate or registration holder.
4. (d) In the case of direct mail communication, the certificate or registration holder shall retain a copy of the actual mailing along with a list or other description of persons to whom the communication was mailed or otherwise distributed. Such copy shall be retained by the certificate or registration holder for a period of at least 36 months from the date of the last transmission or use.

5. (e) Subsection (d) of this section does not apply to persons when:

   1. (1) the communication is made to a person who is at that time a client of the certificate or registration holder;
   2. (2) the communication is invited by the person to whom it was made; or
   3. (3) the communication is made to a person seeking to secure the performance of professional services, which are currently not being provided by another certificate or registration holder.
6. (f) In the case of radio and television broadcasting, the broadcast shall be recorded and the certificate or registration holder 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.