A question I get from time to time relates to a broker seeking to have an old criminal charge removed from his or her CRD(R) record. They don't like a charge showing up on their record when a client or prospect pulls up their BrokerCheck(R) report, especially when the charge is very old, was a high school or college incident, and it resulted in no conviction. The disclosure of the charge, even without a conviction, can certainly cause some damage to a broker's reputation and could conceivably lead to a loss of business. So, what's a broker to do? In a nutshell, the broker should explore options for having that disclosure removed from public disclosure.
Some relatively new laws in Georgia have made restricting access to these charges easier in certain circumstances. Pursuant to O.C.G.A. 35-3-37, a person can have access to certain criminal history information restricted when the matter was resolved in a few different manners. Restriction, under Georgia law means "that the criminal history record information of an individual relating to a particular charge shall be available only to judicial officials and criminal justice agencies for law enforcement or criminal investigative purposes or to criminal justice agencies for purposes of employment in accordance with procedures established by the center and shall not be disclosed or otherwise made available to any private persons or businesses pursuant to Code Section 35-3-24." (See 35-3-37(a)(6)). Under the statutes, for example, a record can be restricted when:
* the case was never referred for prosecution to the proper prosecuting attorney by the arresting law enforcement agency and certain other criteria are met;
* the prosecuting attorney dismissed the case before an indictment or accusation was filed;
* the case was dismissed or nolle prossed after an indictment or accusation was filed (this could include cases where a pre-trial diversion program was successfully completed and the case was then dismissed without a conviction);
* the person was acquitted of the charge by a judge or jury, (absent other criteria being met relating to the case).
There are several nuances in the new record restriction statute and your situation has to be analyzed to determine whether restriction is possible. Additionally, generally speaking, if there was a conviction entered, then a records restriction will not be allowed under this statute.
After obtaining a records restriction under the procedure called for by the statue and GBI policies, the broker can then petition FINRA's CRD unit to remove the disclosure from public view in accordance with the records restriction statute.
We recently completed this process for a client who had been charged with a misdemeanor theft charge back in the 1980s. The prosecuting attorney's office deemed the matter similar to a high school prank and opted not to prosecute, dismissing the case. But, because the broker had been charged with the reportable misdemeanor, it had been on his Form U4 and made publicly available for a number of years. By taking advantage of the new records restriction statute, we obtained a restriction of the record, and then successfully petitioned FINRA to remove the disclosure from the public disclosure system, restoring a clean record to a 20+ year veteran of the industry.
If you have a criminal charge in Georgia that did not result in a conviction, be sure to explore whether you are eligible for a records restriction and have the matter remove from your CRD(R) record.