Sins of Omission

Understanding the new legal responsibilities for what you don’t do

by Herbert K. Daroff, J.D., CFP

Mr. Daroff is a Contributing Editor for Life & Health Advisor. He is affiliated with Baystate Financial Planning, and can be reached at

If you witness the commission of a felony, do you have the legal responsibility to do anything?

  • To try and stop it?
  • To enlist the help of others?
  • To simply scream out in alarm?
  • To call the police?

If subpoenaed, then you are required to testify as to what you saw.  But, are you legally required to render assistance? To try and help another?

You may be morally responsible, but until recently, acts of omission did not carry legal penalties.  For most of us, the ranks of ‘mandatory reporters’ had been narrow.  And, it may not be only that you did something, but did you do enough?

Joe Paterno, former head football coach at Penn State, reported the alleged activities of Jerry Sandusky, his assistant coach, to the Athletic Director, Joe’s immediate boss.  He followed the chain of command.  But, in the court of public opinion, he didn’t do enough.  He was fired from his illustrious position at the University after decades of loyal service.

But, was he legally responsible to have done anything?

You may be morally responsible, but until recently, acts of omission did not carry legal penalties. For most of us, the ranks of 'mandatory reporters' had been narrow. And, it may not be only that you did something, but did you do enough?

Some professionals have, as part of their own Code of Ethical Conduct, the affirmative responsibility to report conduct by any other members of their professional that could adversely affect the standing of that profession in the public’s eye, including:

  • Doctors
  • Certified Financial Planners™
  • Teachers?
  • Students?  Honor Code violations for not reporting.
  • Lawyers?

If I know that a CFP practitioner is acting in any manner which diminishes the value of the CFP Mark, then I am in breach of my Code of Ethical Responsibility if I don’t report that practitioner to CFP Board.

If you are part of ‘management’ and you witness physical or mental abuse, are you as guilty as the perpetrator of the abuse if you don’t report it.  Recently, more often than not, the answer is YES!

Ok, maybe it’s a matter of degree.  ‘As guilty,’ maybe not.  But, guilty, even so.

This is not something brand new.  If you didn’t register for the military draft, you broke the law.

But, it seems to me that we are hearing an increasing number of incidents where acts of omission are being raised.

Can the government tax you for something that you don’t do?  Apparently, now, the answer is YES!  If you don’t buy health insurance, you pay a tax for what you didn’t do.  Massachusetts established that law a few years back.  Now, the Supreme Court of the United States tells us that the federal government, who cannot force you to buy insurance (though States can), can levy a tax if you don’t.

What’s next?
Is it a good thing?  Or, can government use it against us?