In my law practice, I work with a lot of professionals such as financial advisors. Sometimes, these people have a blemish in their background. Often it involves an arrest for something relatively minor when they were young and dumb. For example, there might be an arrest for shoplifting or property damage, or something like that. The case resulted in them being charged with a crime, but often the matter was resolved through a diversion program, and the end result is that the charge was dropped and there was no conviction.
For some people, the record of these events lives on to haunt them. Take a financial advisor, for example – any felony charge and certain misdemeanor charges have to be reported on their license application called a Form U4 – even if the charge was later dropped and there was no conviction. The report of that event becomes public, and their clients and prospective clients, as well as prospective employers can see information about that on the internet. The negative report can then cost the advisor clients, or maybe even employment with certain firms.
Georgia law, in OCGA 35-3-37, allows for certain criminal history record information to be restricted – meaning that it would not be made available to the public on background checks through the GBI and other law enforcement searches. This restriction essentially seals the criminal history record information from the GBI's GCIC system, so that information about the mater is not disclosed to the public, but it remains in the system and available for law enforcement and judicial purposes as allowed by the law. Typically, to be eligible for this type of record restriction, the case needs to conclude without a conviction – so it usually means that the charge was dropped, either by the prosecutor on their own, or maybe after the person completed some type of pre-trial diversion program.
Record restrictions are essentially automatic, when the case is eligible, for situations where the arrest occurred on or after July 1, 2013.But, for those case prior to July 1, 2013, the person has to make an application for the record to be restricted.
Once approved, the person can go a step further, and file a motion with the court to have the court record sealed as well, to further protect the information from being made public.
If you are a professional and have an issue like this in your background, it might be wise to consider getting the record restricted, and sealing the court record, if eligible under the law. That can help prevent negative information from coming to light that can impact your business, as well as your employment prospects. Certainly, if you are a financial advisor or other financial services professional with an active U4, or are seeking to get into that business, you want to take every reasonable step to have your U4 be as clean as possible.
If we can assist you with a record restriction matter here in Georgia, or with a motion to seal records in the Gwinnett County courts, I invite you to contact us to discuss your situation.
Update April 2021: If you want to learn more, check out our new free resource, The Financial Advisor's Guide to Arrests, Criminal Charges, and Related Form U4 Issues. Click here to download your free copy.
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