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Yes, You Do Have to Get Fingerprinted - Again

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When you applied to be admitted as a member of the California State Bar, you were required to be fingerprinted and to have those fingerprints forwarded to the State Bar. Business and Professions Code section 6054 requires the Bar to maintain those prints in a law enforcement database, so that the State Bar disciplinary unit can be notified of members' arrests. That did not happen. Past "administrative failures" are blamed for the fact that the State Bar did not ensure the original fingerprint scans were kept after they were used to conduct the applicant's background check.

Acknowledging a 30-year non-compliance problem, State Bar officials finally contracted with the California Department of Justice ("DOJ") last year to scan and keep prints submitted after June 30, 2017. The State Bar also found, and gave to the DOJ, about 1,500 "hard copy" fingerprint cards provided by applicants over the last three years. Almost everyone else, though, will have to be re-fingerprinted using the Live Scan process no later than April 30, 2019 to avoid incurring penalties. This impacts the approximately 190,000 California-licensed attorneys on active status.

What's more, State Bar leaders say the agency does not have the estimated $15.5 million to pay for the new fingerprints and ensuing background checks, so they arepassing along the costs to members. The State Bar says the average cost will run about $82, depending on how much a local scanning agency charges. A list of Live Scan providers is available at the State Bar website (www.calbar.org). A review of the list for our county shows that many UPS stores in San Joaquin County offer Live Scan, as does the Sheriff's Office. Prices in San Joaquin County range from $15.00 to $35.00.

In addition, each attorney will be responsible forcovering the cost related to submitting the fingerprints to the DOJ and FBI for a background check. The cost for a DOJ and FBI background check is $49 ($32 for the DOJ and $17 for the FBI).

Inactive attorneys and judges will not have to be fingerprinted. Active attorneys living outside the United States will have to be fingerprinted by a licensed agency abroad and submit a hard copy to the State Bar or notify the State Bar that such services are not available. The State Bar will pay part of the fingerprinting costs for low-income earners.

The practical outcome of the new fingerprinting rule is that it will trigger the release of information regarding criminal convictions to the State Bar from the DOJ. For some lawyers, that could mean truly adverse consequences. In fact, State Bar officials estimate that about ten percent (10%) of re-fingerprinted lawyers "will have unreported criminal behavior."

Think about that for a minute: California has about 190,000 active attorneys. If the State Bar estimate is reasonably close to being accurate, it leads to the somewhat unsettling conclusion that about 19,000 California lawyers have a criminal past that they have sought to cover up until now.

Attorneys are already required to report felony convictions as well as some misdemeanor convictions to the State Bar, and failure to report mandatory reportable actions in and of itself constitutes violations of various sections of the Business & Professions Code and may subject attorneys to disciplinary action.

The State Bar has procedures in place to assess whether the criminal activity provided by the DOJ warrants an investigation and encourages attorneys to immediately notify the State Bar of any mandatory reportable actions. State Bar president Michael Colantuono has warned attorneys that they should report any criminal charges filed against them now before a new database scan alerts the agency. In November of last year, Mr. Colantuono said,"You are better off coming to us than waiting for us to come to you, because come to you we will."

The State Bar will include information about the re-fingerprinting requirement with 2019 Member's Dues Notices. Information, required forms, and a list of Live Scan providers can also be found by logging in to your California State Bar online profile.

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Monday, 17 December 2018

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