A Law Student’s Guide To Background Checks
Is this age of technology, background checks are used frequently by businesses to hire employees, associations regarding new members, the government when making grants and student loans to college students, landlords regarding potential tenants, lenders when making home mortgage or other loans, individuals verifying information about themselves to make sure they are not victims of identity theft, and sometimes wanting information about someone they are dating, about a spouse or business associate.
In particular, background checks are used by the legal profession as part of their due diligence in all types of legal matters such as family law, civil litigation, worker’s compensation, immigration matters, collections, criminal trials and other areas. Since they are used so frequently, the costs are reasonable and they have become part of the normal way of conducting businesses and handling criminal trials and part of criminal defense practices.
A background check is simply a report comprised of a collection of various information taken from public records about someone’s personal information and which is subject to legal constraints. The type of information that one can obtain depends on the type of report and the company used to obtain the information. While much information can be obtained from various public records such as court databases and county clerk’s offices that may be free, most law firms, attorneys, private investigators and insurance investigators use background reports that are prepared by professional background check and security companies that put the information they compile into comprehensive reports for them for a nominal fee.
In this guide:
What Do The Reports Contain?
The reports contain a person’s background, including their driving record, place of residence, credit history, criminal records, marriage and divorce records, tax liens and judgments. Background checks allow attorneys and other businesses and persons to form an opinion about a person’s integrity and character or lack of it and help law firm’s strategy legal defenses when representing criminal clients.
Background Checks in the Legal Field
The legal field uses background checks to search and obtain information from various databases including the following:
- County Criminal Records
- State Criminal and Index Records
- National Federal Criminal and Index Records
- Local, Multi-State and National Sex Offender Records
- State Prison Records
- Federal Prison Records
- Local, State and National Warrant Searches
- Canadian and Other International Criminal Record Data Bases
- Civil Records Including Bankruptcies, Tax Liens, Law Suits and Judgments Search
- Maiden Name Search
- Phone Numbers and Address Searches
- Business Ownership Search
- Email address reports
- OFAC Patriot Act Search Records
For instance, a national criminal background check would provide an attorney or law firm information such as a person’s name, a person’s race, sex, social security number, state and county of where the offense occurred, description of the offense, the date filed and whether the case was disposed and any sentencing date. There is usually some sort of legal statement stating that a copy of the report must be given to the person being investigated and failure to do so may subject the investigating person or entity to criminal and civil fines and penalties. Each state has different laws so it is important to investigate the laws in the state where you do business or practice law so you know what information you must give to the person who is the subject of the investigation.
Sex Offender Reports
A sex offender report may contain pictures of sex offenders, any distinguishing marks such as piercings or tattoos, their height, weight, hair and eye color, names of offenders, their alias, type of crimes committed, conviction information, and their addresses. The reports are generally compiled by a particular neighborhood zip code, state or region. Having information about the person’s name and state of residence makes the search easier. Information can also be obtained by going to a local police station. Although some states have a limit as to the number of names they provide and charge a fee for the information so most law firms order reports as part of a due diligence background report rather than just a sex offender report by itself.
Warrants are issued by judges and magistrates. There are bench warrants and arrest warrants. Bench warrants order a person to show up for a court day or pay a fine or fee. Arrest warrants give law enforcement authorities the right to arrest a person that suspect of a crime. Some warrant searches and reports are done by county. Warrants searches contain information about the name of the offender, the crime and state they are wanted for, a description of the person and their date of birth. The report provides information about how someone may have broken the law, but it does mean they have been convicted. It simply indicates that law enforcement may think they have committed a crime and have sufficient evidence to arrest them.
Prison Inmate Reports
A prison inmate report contains information about where the offender is incarcerated, the offense and release date. This helps when you an attorney or other investigator is searching and is not sure if someone is located in a federal or state prison. An inmate may need to be located to use as a witness in a criminal defense case as well.
Terrorist Reports
The Office of Foreign Asset Control, part of the U.S. Treasury Department, is responsible for administering and enforcing economic and trade sanctions against rogue nations and individuals suspected of terrorism. It maintains a list of restricted parties called the Specially Designated Nationals List (SDN) and is available on their website. Generally, these searches are conducted when credit is extended or regarding employment. It is illegal to conduct business with anyone who is on the list.
Data that may be included on the list is taken from many resources such as the FBI Most Wanted List, International European Union Consolidated List, United Nations Consolidated List, Terrorist Exclusion List, Non-Cooperative Countries and Territories, Interpol Most Wanted, World Bank Debarred Parties and Politically Exposed Persons List as well as other lists. Additional information about the lists can be obtained by contacting the OFAC online or by calling them a (800) 884-4747.
Due Diligence Background Checks
A law firm or attorney primarily conducts due diligence background checks to help them prepare for trial or plea bargaining, to locate witnesses or persons of interest to their case as well as to investigate their own clients’ backgrounds so there are no surprises at trial. Collection attorneys use them to find debtors that owe money to their clients when they are attempting to collect a debt or file a lien against a debtor’s assets. Due diligence background checks cost around $100 or less, can be accessed within one to three business days and contain the following information:
Verification of a person’s social security number in order to verify their true identity. Having the correct social security number is essential in confirming this information and ruling out impersonation and identity theft. The person’s birth month and year are also verified.
Statewide and national sex offender search. Depending on each state’s statute, some information may not be accessed and provided, but generally the search provides information about the conviction details and the current address of the registered sex offender.
Personal profile information including alias names used by the person, their address history, telephone numbers, list of possible relatives, bankruptcy filing and discharge, if any, corporate filings, real property records, UCC filings, and state licenses held, information from the Department of Corrections, any concealed weapon permits, fishing and hunting licenses, voter registration information, court records, judgments and tax liens. Some information may not be available in all states.
Other types of reports available are skip tracing reports which include the verification of a person’s social security number, reverse phone number and address search, cell phone number, employment history, or general background searches which include, social security, address, education, employment history, references, evictions and credit information.
Legal Concerns
Background checks are useful to verify a person’s identity, address, social security number, criminal history, for civil information regarding property ownership, lawsuit judgments and tax liens as well as credit information. Certain information requires the written permission of the person being investigated such as information regarding privacy matters including sexual orientation, religious membership and affiliation, health records and credit information. Without obtaining the person’s written permission, this information may be prohibited from being used in a trial or other criminal, civil or employment matter. Use of prohibited information may subject the user to a lawsuit, criminal fines and penalties.
Privacy Concerns
Privacy protects an individual’s civil liberties and prevents them from being judged wrongfully or embarrassed. There are concerns from privacy and civil liberty advocates about the damage to a person when misinformation and erroneous information is contained in public records such as court files and criminal records. Wrongful criminal records, mix-ups, identity theft as well as human error when imputing information account for the incorrect information being distributed to third parties. This incorrect information could be relied upon by law firms, attorneys, businesses and individuals when conducting criminal background checks. The individual may not even know about the errors unless they are informed by the persons conducting their background check.
There are some protections for employees under the Fair Credit Reporting Act, which is a federal law requiring that an employer notify a potential employee about the error. However, the information contained about an individual in government records is now sold to the private sector where vendors use it to compile records from many sources and make them available to their subscribers for subscription fees. Private investigators, attorneys, debt collectors, skip tracers and insurance investigators are examples of the types of people and entities that use background check companies like Choicepoint and Lexis-Nexis that charge a fee to obtain data. Although there are some databases that are free, these are highly popular and used frequently by legal professionals conducting background searches relating to criminal cases.
Legislative amendments are being proposed and some have been enacted to federal and state laws that govern background checks and investigative consumer reports to make sure that people who are the subject of background checks, with certain exceptions such as when there is a suspicion of a criminal act or wrongdoing, are able to receive and review the background check report for accuracy and discrepancies so that they have the opportunity to have it corrected. Although it may be difficult for an individual to have errors corrected in the criminal court systems and government records and an individual may require the assistance of an attorney.
Background checks are an intricate part of society today because they facilitate information gathering about a person’s history, character and criminal background that is useful for legal professionals and others in criminal defense cases and trials to win cases and clients’ freedoms. However, they must be used properly and within legal constraints at all times.
Additional Resources
Here are some websites that can be easily accessed for background check information:
United States Department of Justice National Sex Offender Public Website
http://www.nsopw.gov/Core/OffenderSearchCriteria.aspx
County Criminal Searches
http://www.countycriminal.com/court-records
State Criminal Searches
http://www.criminalbackgroundrecords.com/statewide-criminal-background-check.html
National Criminal Searches
http://www.criminalbackgroundrecords.com/national-criminal-background-check.html
State Prison Records Search
http://1apublicrecords.com/inmaterecords/stateprisoninmate.php
Federal Bureau of Prisons Federal Prison Search
http://www.bop.gov/
International Criminal Records Searches
http://www.infocubic.net/products/international_criminal.htm
LexisNexis Reports
http://www.lexisnexis.com/risk/solutions/background-checks-screening.aspx
Choicepoint
http://epic.org/privacy/choicepoint/
Office of Foreign Asset Control
http://www.treasury.gov/about/organizational-structure/offices/Pages/Office-of-Foreign-Assets-Control.aspx
The relative inexpensive costs of background checks make it easier to access the information for legal professionals, individuals and businesses. Some sites require subscription fees, while others are free. Public court records can be searched online in many jurisdictions for free or for a nominal cost as well as public property record databases from the county clerk’s or county recorder’s offices.
