Expunged Records

[LincolnLover]

I have noticed that some schools ask about expunged records, and yet most states have a policy of being able to legally say "no" to questions about convictions if expunged. How can it be legal to backdoor it like that?

[jonlevy]

If a tree falls in the forest and no one is there.....

[jonlevy]

If a tree falls in the forest and no one is there.....

Advances in information technology mean that records expunged in the last 20 years may well leave public traces that could be a problem. Regardless of state law, I'd want to be sure that a simple Google or Lexis Public Information search is not going to turn up dirt. If that is the case, better to explain it in advance then get whacked for the far more serious issues of lying on a school or bar form.

[LincolnLover]

True, and don't lie at all I agree.

I am wondering how it is legal for them to ask and require an answer though. If the state says you can say no to a record, how can they legally require it?

If a tree falls in the forest and no one is there.....

Advances in information technology mean that records expunged in the last 20 years may well leave public traces that could be a problem. Regardless of state law, I'd want to be sure that a simple Google or Lexis Public Information search is not going to turn up dirt. If that is the case, better to explain it in advance then get whacked for the far more serious issues of lying on a school or bar form.

[jonlevy]

The state bar will also ask the same question for its moral fitness requirement, you are supposed to report expunged convictions, I assume we are talking about California.

http://admissions.calbar.ca.gov/MoralCharacter/Factors.aspx

[LincolnLover]

To be honest I am talking about CA and any/every other place. I don't deny that they ask, I quesiton how it is legal to ask. 

[jonlevy]

Generally speaking expungement does not grant some sort of privacy right. In the context of moral fitness to practice law, it is still relevant:

"We are aware that his requirement [to make a full disclosure of any charges made against him] calls for a high degree of frankness and truthfulness on the part of the attorney making application for admission to practice law in this state, but no good reason presents itself why such a high standard of integrity should not be required."
Spears v. State Bar, 211 Cal. 183, 187 (1930)

Of the forty states that allow expungement or sealing of arrests not leading to conviction, twenty-nine permit an individual to deny the arrest. Of the sixteen states that allow expungement or sealing of convictions, thirteen permit an individual to deny the conviction. Ben Geiger, The Case for Treating Ex-Offenders as a Suspect Class, 94 Cal. L. Rev. 1191, 1200 (2006).

My understanding is that not all expungements are equal, depends on the state and court.  I am sure some applicants do deny the conviction and suffer no consequences.

So a lot depends on the states involved and local practices. I am not aware of any law though that prevents someone from asking about an expungement.

[FalconJimmy]

I have noticed that some schools ask about expunged records, and yet most states have a policy of being able to legally say "no" to questions about convictions if expunged. How can it be legal to backdoor it like that?

Things aren't illegal "just because".  They're illegal because there's a law making them illegal.  Can you point to a specific piece of legislation that says that it is illegal to ask about expunged convictions? 

If not, it's not illegal.  Simple as that.  We don't have proscriptive law here (meaning the state doesn't tell us what we CAN do.) 

The state has to allow any forms of conduct that they don't specifically prohibit.

What they have told you is that when asked if you have been convicted, that you do not need to divulge.

However, they haven't said that for special purposes (a security clearance background check, applying to work at sensitive facilities, to join the military, to apply to the state's bar) that you cannot be asked. 

You can connect the dots yourself on this one.  If it's not illegal to ask, and they'll hold it against you if you don't answer truthfully, you need to respond accordingly. 

This reminds me of a guy who came into my office asking about an application.  As we were talking, I mentioned that we run background checks and he needs a clean driving record and no history of felonies.  He claimed that it was ILLEGAL to discriminate against him because he served his time and now he's out.  I told him that's an interesting theory, but that he wasn't eligible to work in my business.  He demanded to see documentation of this policy and wanted to know how it was legal.

Now, more germane to your situation, if the expungement was for something pretty minor (like, say, a juvenile misdemeanor), then I doubt you have much to worry about.  You can probably get a Top Secret clearance in the military and get admitted to the state bar or whatever, provided you show them that your juvenile indescretions are not indicative of the person you are, today.  One way you show them this is by answering their current questions fully and honestly.

Best of luck.

[LincolnLover]

Is there a difference between expungment and adjudication? If they only ask about one could the other be ok not to mention since not asked?                   (in theory)

[jonlevy]

Consult with a lawyer who specializes in professional discipline defense, there are several who advertise in California Lawyer magazine, you really don't want to go into details here.