NJSA 2C:52-1 Expungement/Erase Criminal Arrests |
Thousands of citizens in New Jersey over the past 20 years have been arrested for criminal, disorderly, and municipal ordinance offenses. They may include your neighbors, friends and loyal church goers. The police keep a record of all arrests and convictions, even if 20 years old. These secrets of the past will soon be open to anyone in New Jersey including credit agencies. Under a proposal by the New Jersey Attorney General, for a $15.00 fee, anybody could ask the state police for a persons criminal record, even arrests with not guilty findings. Allowing access to a persons old criminal conviction or arrest record could open the door for discrimination against someone who now is a productive, respected, and law abiding citizen. Fortunately, if you are a law abiding citizen, you can now have old arrests or convictions erased from public records and police folders. Under NJSA 2C:52-1 et seq. past criminal convictions can be expunged erased under certain instances. For example, if you were convicted or pleaded guilty to a disorderly person offense (misdemeanor type) more than 5 years ago, and have not been convicted of anything since, you can have your attorney petition to the Superior Court for an Expungement (Erase and removal) of your criminal record. If you plead guilty to a town ordinance (ex. - Seaside Heights Drinking in Public) you can petition for an Expungement after waiting two years. A Juvenile delinquent/guilty finding for a minor can also be expunged/erased under similar circumstances. In addition, minor drug arrests which resulted in first offender conditional discharge can be erased if one year has passed since termination of probation or conclusion of court proceedings. Most importantly, arrests on frivolous complaints which did not result in a conviction or if charges were dismissed, can be expunged, without waiting. THE EXPUNGEMENT PETITION You should contact an attorney experienced with handling expungements in the Superior Court. Your attorney will prepare an expungement petition which under state law must contain substantial background information, including: a. Date of Birth and Social Security # b. Date of Arrest c. Statute Arrested For and Statute Convicted d. Original Indictment, Summons, or Complaint Number e. Petitioners Date of Conviction or Date of Disposition f. Courts Disposition of the Matter and Punishment Adopted, if Any In addition, the Expungement Petition must have an affidavit that states that there are no charges pending and that the petitioner never previously received a prior expungement. The Expungement Petition is filed in the county where the offense took place, not where the defendant lives. Once filed, the Superior Court will set a hearing within 35-60 days. As required under the statute, the attorney for the applicant must serve a copy of the Petition Order for hearing and supporting documents on the following people: 1. Superintendent of State Police 2. Attorney General 3. County Prosecutor of the county where the court is located 4. The Chief of Police where the event took place 5. The chief law enforcement officer of any law enforcement agency which participated in the arrest 6. The warden of any institution where the petitioner was confined, and 7. If the disposition was made by a municipal court, upon the municipal court which heard the case. If you satisfy all other statutory requirements and there is no objection by the entities notified, the court will usually grant an order directing the clerk of the court and all relevant criminal justice and law enforcement agencies to expunge (remove) records of said disposition including evidence of arrest, detention, conviction, and proceedings. There are additional pleadings which the applicants attorney must prepare and file. If you have an old offense, it is important that you have the arrest expunged to keep your name and record clean. Expungement statute was reviewed in recent cases SUPERIOR COURT - CRIMINAL - FLAT FEE
1. Legal Services to be provided:
2. Fees. Fees can be paid by VISA, Master Card, American Express, check, money order or cash. Make checks payable to Kenneth Vercammen PC. 3. Representation/ What We will do for you. We will review and research necessary statutes and caselaw, contact the prosecutor, prepare defenses and determine mitigating factors. We agree to provide conscientious, competent and diligent services on the charges you provided us at the initial consultation. At all times we will seek to achieve solutions which are just and reasonable for you. WHAT WE WILL DO......
Preparation of CERTIFICATION OF SERVICE OF ORDER FOR HEARING
If Expungement granted,
13 Preparation of End of Case Letter and client questionnaire.
ERASE/EXPUNGEMENT OF OLD ARRESTS details
c1- client name _____________________
x3 Date of Arrest ___________________ x1 N.J.S.A. 2C: Statute Arrested For [ex 2C: 35-1] __________________ x4 Original Indictment, Summons, or Complaint Number ______________
c4 Town of arrest ______________
Other details needed in Petition:
As required under the statute, the attorney for the applicant must serve a copy of the Petition Order for hearing and supporting documents on the following people, Att: Expungement Unit:
Our Computer Prints:
We call Superior Court and confirm address for Expungement Unit.
Court will sign Order and mail back stamped filed 1, 2 & 3.
New Jersey Attorney General Division of State Police
When all the green cert. mail cards come in we put date mailed to Law Enforcement. on form 6 (Cert.) and mail to Court .
4. Other Legal Services. We provide representation only on the charges/tickets/offenses you provided to us at the initial consultation. The Law Firm does not guarantee Kenneth Vercammen will be the hearing attorney. You and the Law Firm may make additional agreements to provide for legal services not covered by the Agreement. Without such agreements, the Law Firm is not required to do any additional work or any of the following:
We recommend after the Order for Expungement is signed by the Judge that you to send a copy of the Order for Expungement to the police by Certified Mail.
5. Costs. In addition to legal fees, you must pay the following costs and expenses if needed: costs for discovery and police reports, court costs, subpoena fees, and any other necessary expenses in this matter. 6. Your Responsibility- Please read carefully and follow instructions to help us help you.
2C:52-1. Definition of expungement a. Except as otherwise provided in this chapter, expungement shall mean the extraction and isolation of all records on file within any court, detention or correctional facility, law enforcement or criminal justice agency concerning a persons detection, apprehension, arrest, detention, trial or disposition of an offense within the criminal justice system. b. Expunged records shall include complaints, warrants, arrests, commitments, processing records, fingerprints, photographs, index cards, rap sheets and judicial docket records. L.1979, c. 178, s. 108, eff. Sept. 1, 1979. 2C:52-2. Indictable offenses 2C:52-2. Indictable Offenses. a. In all cases, except as herein provided, wherein a person has been convicted of a crime under the laws of this State and who has not been convicted of any prior or subsequent crime, whether within this State or any other jurisdiction, and has not been adjudged a disorderly person or petty disorderly person on more than two occasions may, after the expiration of a period of 10 years from the date of his conviction, payment of fine, satisfactory completion of probation or parole, or release from incarceration, whichever is later, present a duly verified petition as provided in section 2C:52-7 to the Superior Court in the county in which the conviction was entered praying that such conviction and all records and information pertaining thereto be expunged. Although subsequent convictions for no more than two disorderly or petty disorderly offenses shall not be an absolute bar to relief, the nature of those conviction or convictions and the circumstances surrounding them shall be considered by the court and may be a basis for denial of relief if they or either of them constitute a continuation of the type of unlawful activity embodied in the criminal conviction for which expungement is sought. b. Records of conviction pursuant to statutes repealed by this Code for the crimes of murder, manslaughter, treason, anarchy, kidnapping, rape, forcible sodomy, arson, perjury, false swearing, robbery, embracery, or a conspiracy or any attempt to commit any of the foregoing, or aiding, assisting or concealing persons accused of the foregoing crimes, shall not be expunged. Records of conviction for the following crimes specified in the New Jersey Code of Criminal Justice shall not be subject to expungement: Section 2C:11-1 et seq. (Criminal Homicide), except death by auto as specified in section 2C:11-5; section 2C:13-1 (Kidnapping); section 2C:13-6 (Luring or Enticing); section 2C:14-2 (Aggravated Sexual Assault); section 2C:14-3a (Aggravated Criminal Sexual Contact); if the victim is a minor, section 2C:14-3b (Criminal Sexual Contact); if the victim is a minor and the offender is not the parent of the victim, section 2C:13-2 (Criminal Restraint) or section 2C:13-3 (False Imprisonment); section 2C:15-1 (Robbery); section 2C:17-1 (Arson and Related Offenses); section 2C:24-4a. (Endangering the welfare of a child by engaging in sexual conduct which would impair or debauch the morals of the child); section 2C:24-4b(4) (Endangering the welfare of a child); section 2C:28-1 (Perjury); section 2C:28-2 (False Swearing) and conspiracies or attempts to commit such crimes. Records of conviction for any crime committed by a person holding any public office, position or employment, elective or appointive, under the government of this State or any agency or political subdivision thereof and any conspiracy or attempt to commit such a crime shall not be subject to expungement if the crime involved or touched such office, position or employment. c. In the case of conviction for the sale or distribution of a controlled dangerous substance or possession thereof with intent to sell, expungement shall be denied except where the crimes relate to: (1) Marijuana, where the total quantity sold, distributed or possessed with intent to sell was 25 grams or less, or (2) Hashish, where the total quantity sold, distributed or possessed with intent to sell was five grams or less. d. In the case of a State licensed physician or podiatrist convicted of an offense involving drugs or alcohol or pursuant to section 14 or 15 of P.L.1989, c.300 (C.2C:21-20 or 2C:21-4.1), the court shall notify the State Board of Medical Examiners upon receipt of a petition for expungement of the conviction and records and information pertaining thereto. Amended 1989,c.300,s.23; 1993,c.301; 1994,c.133,s.6. 2C:52-3. Disorderly persons offenses and petty disorderly persons offenses Any person convicted of a disorderly persons offense or petty disorderly persons offense under the laws of this State who has not been convicted of any prior or subsequent crime, whether within this State or any other jurisdiction, or of another three disorderly persons or petty disorderly persons offenses, may, after the expiration of a period of 5 years from the date of his conviction, payment of fine, satisfactory completion of probation or release from incarceration, whichever is later, present a duly verified petition as provided in section 2C:52-7 hereof to the Superior Court in the county in which the conviction was entered praying that such conviction and all records and information pertaining thereto be expunged. L.1979, c. 178, s. 110, eff. Sept. 1, 1979. Amended by L.1981, c. 290, s. 43, eff. Sept. 24, 1981. 2C:52-4. Ordinances In all cases wherein a person has been found guilty of violating a municipal ordinance of any governmental entity of this State and who has not been convicted of any prior or subsequent crime, whether within this State or any other jurisdiction, and who has not been adjudged a disorderly person or petty disorderly person on more than two occasions, may, after the expiration of a period of 2 years from the date of his conviction, payment of fine, satisfactory completion of probation or release from incarceration, whichever is later, present a duly verified petition as provided in section 2C:52-7 herein to the Superior Court in the county in which the violation occurred praying that such conviction and all records and information pertaining thereto be expunged. L.1979, c. 178, s. 111, eff. Sept. 1, 1979. 2C:52-4.1. Juvenile delinquent; expungement of adjudications and charges a. Any person adjudged a juvenile delinquent may have such adjudication expunged as follows: (1) Pursuant to N.J.S. 2C:52-2, if the act committed by the juvenile would have constituted a crime if committed by an adult; (2) Pursuant to N.J.S. 2C:52-3, if the act committed by the juvenile would have constituted a disorderly or petty disorderly persons offense if committed by an adult; or (3) Pursuant to N.J.S. 2C:52-4, if the act committed by the juvenile would have constituted an ordinance violation if committed by an adult. For purposes of expungement, any act which resulted in a juvenile being adjudged a delinquent shall be classified as if that act had been committed by an adult. b. Additionally, any person who has been adjudged a juvenile delinquent may have his entire record of delinquency adjudications expunged if: (1) Five years have elapsed since the final discharge of the person from legal custody or supervision or 5 years have elapsed after the entry of any other court order not involving custody or supervision; (2) He has not been convicted of a crime, or a disorderly or petty disorderly persons offense, or adjudged a delinquent, or in need of supervision, during the 5 years prior to the filing the petition, and no proceeding or complaint is pending seeking such a conviction or adjudication; (3) He was never adjudged a juvenile delinquent on the basis of an act which if committed by an adult would constitute a crime not subject to expungement under N.J.S. 2C:52-2; (4) He has never had an adult conviction expunged; and (5) He has never had adult criminal charges dismissed following completion of a supervisory treatment or other diversion program. c. Any person who has been charged with an act of delinquency and against whom proceedings were dismissed may have the filing of those charges expunged pursuant to the provisions of N.J.S. 2C:52-6. L.1980, c. 163, s. 1. Amended by L.1981, c. 290, s. 44, eff. Sept. 24, 1981. 2C:52-5. Expungement of records of young drug offenders Expungement of Records of Young Drug Offenders. Notwithstanding the provisions of sections 2C:52-2 and 2C:52-3, after a period of not less than one year following conviction, termination of probation or parole or discharge from custody, whichever is later, any person convicted of an offense under chapters 35 or 36 of this title for the possession or use of a controlled dangerous substance, convicted of violating P.L. 1955, c. 277, s. 3 (C. 2A:170-77.5), or convicted of violating P.L. 1962, c. 113, s. 1 (C. 2A:170-77.8), and who at the time of the offense was 21 years of age or younger, may apply to the Superior Court in the county wherein the matter was disposed of for the expungement of such persons conviction and all records pertaining thereto. The relief of expungement under this section shall be granted only if said person has not, prior to the time of hearing, violated any of the conditions of his probation or parole, albeit subsequent to discharge from probation or parole, has not been convicted of any previous or subsequent criminal act or any subsequent or previous violation of chapters 35 or 36 of this title or of P.L. 1955, c. 277, s. 3 (C. 2A:170-77.5) or of P.L. 1962, c. 113, s. 1 (C. 2A:170-77.8), or who has not had a prior or subsequent criminal matter dismissed because of acceptance into a supervisory treatment or other diversion program. This section shall not apply to any person who has been convicted of the sale or distribution of a controlled dangerous substance or possession with the intent to sell any controlled dangerous substance except: (1) Marihuana, where the total sold, distributed or possessed with intent to sell was 25 grams or less, or (2) Hashish, where the total amount sold, distributed or possessed with intent to sell was 5 grams or less. L. 1979, c. 178, s. 111; amended by L. 1987, c. 106, s. 16. 2C:52-6. Arrests not resulting in conviction a. In all cases, except as herein provided, wherein a person has been arrested or held to answer for a crime, disorderly persons offense, petty disorderly persons offense or municipal ordinance violation under the laws of this State or of any governmental entity thereof and against whom proceedings were dismissed, or who was acquitted, or who was discharged without a conviction or finding of guilt, may at any time following the disposition of proceedings, present a duly verified petition as provided in section 2C:52-7 to the Superior Court in the county in which the disposition occurred praying that records of such arrest and all records and information pertaining thereto be expunged. b. Any person who has had charges dismissed against him pursuant to P.L.1970, c. 226, s. 27 (C. 24:21-27) or pursuant to a program of supervisory treatment, shall be barred from the relief provided in this section until 6 months after the entry of the order of dismissal. c. Any person who has been arrested or held to answer for a crime shall be barred from the relief provided in this section where the dismissal, discharge, or acquittal resulted from a determination that the person was insane or lacked the mental capacity to commit the crime charged. L.1979, c. 178, s. 113, eff. Sept. 1, 1979. 2C:52-7. Petition for expungement Every petition for expungement filed pursuant to this chapter shall be verified and include: a. Petitioners date of birth. b. Petitioners date of arrest. c. The statute or statutes and offense or offenses for which petitioner was arrested and of which petitioner was convicted. d. The original indictment, summons or complaint number. e. Petitioners date of conviction, or date of disposition of the matter if no conviction resulted. f. The courts disposition of the matter and the punishment imposed, if any. L.1979, c. 178, s. 114, eff. Sept. 1, 1979. 2C:52-8. Statements to accompany petition There shall be attached to a petition for expungement: a. A statement with the affidavit or verification that there are no disorderly persons, petty disorderly persons or criminal charges pending against the petitioner at the time of filing of the petition for expungement. b. In those instances where the petitioner is seeking the expungement of a criminal conviction, a statement with affidavit or verification that he has never been granted expungement, sealing or similar relief regarding a criminal conviction by any court in this State or other state or by any Federal court. Sealing refers to the relief previously granted pursuant to P.L.1973, c. 191 (C. 2A:85-15 et seq.). c. In those instances where a person has received a dismissal of a criminal charge because of acceptance into a supervisory treatment or any other diversion program, a statement with affidavit or verification setting forth the nature of the original charge, the court of disposition and date of disposition. L.1979, c. 178, s. 115, eff. Sept. 1, 1979. 2C:52-9. Order fixing time for hearing Upon the filing of a petition for relief pursuant to this chapter, the court shall, by order, fix a time not less than 35 nor more than 60 days thereafter for hearing of the matter. L.1979, c. 178, s. 116, eff. Sept. 1, 1979. 2C:52-10. Service of petition and documents A copy of each petition, together with a copy of all supporting documents, shall be served pursuant to the rules of court upon the Superintendent of State Police; the Attorney General; the county prosecutor of the county wherein the court is located; the chief of police or other executive head of the police department of the municipality wherein the offense was committed; the chief law enforcement officer of any other law enforcement agency of this State which participated in the arrest of the individual; the superintendent or warden of any institution in which the petitioner was confined; and, if a disposition was made by a municipal court, upon the magistrate of that court. Service shall be made within 5 days from the date of the order setting the date for the hearing upon the matter. L.1979, c. 178, s. 117, eff. Sept. 1, 1979. 2C:52-11. Order expungement where no objection prior to hearing If, prior to the hearing, there is no objection from those law enforcement agencies notified or from those offices or agencies which are required to be served under 2C:52-10, and no reason, as provided in section 2C:52-14, appears to the contrary, the court may, without a hearing, grant an order directing the clerk of the court and all relevant criminal justice and law enforcement agencies to expunge records of said disposition including evidence of arrest, detention, conviction and proceedings related thereto. L.1979, c. 178, s. 118, eff. Sept. 1, 1979. 2C:52-12. Denial of relief although no objection entered In the event that none of the persons or agencies required to be noticed under 2C:52-10 has entered any objection to the relief being sought, the court may nevertheless deny the relief sought if it concludes that petitioner is not entitled to relief for the reasons provided in section 2C:52-14. L.1979, c. 178, s. 119, eff. Sept. 1, 1979. 2C:52-13. When hearing on petition for expungement shall not be held No petition for relief made pursuant to this section shall be heard by any court if the petitioner, at the time of filing or date of hearing, has a charge or charges pending against him which allege the commission of a crime, disorderly persons offense or petty disorderly persons offense. Such petition shall not be heard until such times as all pending criminal and or disorderly persons charges are adjudicated to finality. L.1979, c. 178, s. 120, eff. Sept. 1, 1979. 2C:52-14. Grounds for denial of relief A petition for expungement filed pursuant to this chapter shall be denied when: a. Any statutory prerequisite, including any provision of this chapter, is not fulfilled or there is any other statutory basis for denying relief. b. The need for the availability of the records outweighs the desirability of having a person freed from any disabilities as otherwise provided in this chapter. An application may be denied under this subsection only following objection of a party given notice pursuant to 2C:52-10 and the burden of asserting such grounds shall be on the objector. c. In connection with a petition under section 2C:52-6, the acquittal, discharge or dismissal of charges resulted from a plea bargaining agreement involving the conviction of other charges. This bar, however, shall not apply once the conviction is itself expunged. d. The arrest or conviction sought to be expunged is, at the time of hearing, the subject matter of civil litigation between the petitioner or his legal representative and the State, any governmental entity thereof or any State agency and the representatives or employees of any such body. e. A person has had a previous criminal conviction expunged regardless of the lapse of time between the prior expungement, or sealing under prior law, and the present petition. This provision shall not apply: (1) When the person is seeking the expungement of a municipal ordinance violation or, (2) When the person is seeking the expungement of records pursuant to section 2C:52-6. f. The person seeking the relief of expungement of a conviction for a disorderly persons, petty disorderly persons, or criminal offense has prior to or subsequent to said conviction been granted the dismissal of criminal charges following completion of a supervisory treatment or other diversion program. L.1979, c. 178, s. 121, eff. Sept. 1, 1979. 2C:52-15. Records to be removed; control If an order of expungement of records of arrest or conviction under this chapter is granted by the court, all the records specified in said order shall be removed from the files of the agencies which have been noticed of the pendency of petitioners motion and which are, by the provisions of this chapter, entitled to notice, and shall be placed in the control of a person who has been designated by the head of each such agency which, at the time of the hearing, possesses said records. That designated person shall, except as otherwise provided in this chapter, insure that such records or the information contained therein are not released for any reason and are not utilized or referred to for any purpose. In response to requests for information or records of the person who was arrested or convicted, all noticed officers, departments and agencies shall reply, with respect to the arrest, conviction or related proceedings which are the subject of the order, that there is no record information. L.1979, c. 178, s. 122, eff. Sept. 1, 1979. 2C:52-16. Expunged record including names of persons other than petitioner Any record or file which is maintained by a judicial or law enforcement agency, or agency in the criminal justice system, which is the subject of an order of expungement which includes the name or names of persons other than that of the petitioner need not be isolated from the general files of the agency retaining same if the other persons named in said record or file have not been granted an order of expungement of said record, provided that a copy of the record shall be given to the person designated in 2C:52-15 and the original shall remain in the agencys general files with the petitioners name and other personal identifiers obliterated and deleted. L.1979, c. 178, s. 123, eff. Sept. 1, 1979. 2C:52-17. Use of expunged records by agencies on pending petition for expungement Expunged records may be used by the agencies that possess same to ascertain whether a person has had prior conviction expunged, or sealed under prior law, when the agency possessing the record is noticed of a pending petition for the expungement of a conviction. Any such agency may supply information to the court wherein the motion is pending and to the other parties who are entitled to notice pursuant to 2C:52-10. L.1979, c. 178, s. 124, eff. Sept. 1, 1979 2C:52-18. Supplying information to violent crimes compensation board Information contained in expunged records may be supplied to the Violent Crimes Compensation Board, in conjunction with any claim which has been filed with said board. L.1979, c. 178, s. 125, eff. Sept. 1, 1979. 2C:52-19. Order of superior court permitting inspection of records or release of information; limitations Inspection of the files and records, or release of the information contained therein, which are the subject of an order of expungement, or sealing under prior law, may be permitted by the Superior Court upon motion for good cause shown and compelling need based on specific facts. The motion or any order granted pursuant thereto shall specify the person or persons to whom the records and information are to be shown and the purpose for which they are to be utilized. Leave to inspect shall be granted by the court only in those instances where the subject matter of the records of arrest or conviction is the object of litigation or judicial proceedings. Such records may not be inspected or utilized in any subsequent civil or criminal proceeding for the purposes of impeachment or otherwise but may be used for purposes of sentencing on a subsequent offense after guilt has been established. L.1979, c. 178, s. 126, eff. Sept. 1, 1979. 2C:52-20. Use of expunged records in conjunction with supervisory treatment or diversion programs Expunged records may be used by any judge in determining whether to grant or deny the persons application for acceptance into a supervisory treatment or diversion program for subsequent charges. Any expunged records which are possessed by any law enforcement agency may be supplied to the Attorney General, any county prosecutor or judge of this State when same are requested and are to be used for the purpose of determining whether or not to accept a person into a supervisory treatment or diversion program for subsequent charges. L.1979, c. 178, s. 127, eff. Sept. 1, 1979. 2C:52-21. Use of expunged records in conjunction with setting bail, presentence report or sentencing Expunged records, or sealed records under prior law, of prior arrests or convictions shall be provided to any judge, county prosecutor, probation department or the Attorney General when same are requested for use in conjunction with a bail hearing or for the preparation of a persistence report or for purpose of sentencing. L.1979, c. 178, s. 128, eff. Sept. 1, 1979. 2C:52-22. Use of expunged records by parole board Expunged records, or sealed records under prior law, of prior disorderly persons, petty disorderly persons and criminal convictions shall be provided to the Parole Board when same are requested for the purpose of evaluating the granting of parole to the person who is the subject of said records. Such sealed or expunged records may be used by the Parole Board in the same manner and given the same weight in its considerations as if the records had not been expunged or sealed. L.1979, c. 178, s. 129, eff. Sept. 1, 1979. 2C:52-23. Use of expunged records by department of corrections Expunged records, and records sealed under prior law, shall be provided to the Department of Corrections for its use solely in the classification, evaluation and assignment to correctional and penal institutions of persons placed in its custody. L.1979, c. 178, s. 130, eff. Sept. 1, 1979. 2C:52-24. County prosecutors obligation to ascertain propriety of petition Notwithstanding the notice requirements provided herein, it shall be the obligation of the county prosecutor of the county wherein any petition for expungement is filed to verify the accuracy of the allegations contained in the petition for expungement and to bring to the courts attention any facts which may be a bar to, or which may make inappropriate the granting of, such relief. If no disabling, adverse or relevant information is ascertained other than that as included in the petitioners affidavit, such facts shall be communicated by the prosecutor to the hearing judge. L.1979, c. 178, s. 131, eff. Sept. 1, 1979. 2C:52-25. Retroactive application This chapter shall apply to arrests and convictions which occurred prior to, and which occur subsequent to, the effective date of this act. L.1979, c. 178, s. 132, eff. Sept. 1, 1979. 2C:52-26. Vacating of orders of sealing; time; basis If, within 5 years of the entry of an expungement order, any party to whom notice is required to be given pursuant to section 2C:52-10 notifies the court which issued the order that at the time of the petition or hearing there were criminal, disorderly persons or petty disorderly persons charges pending against the person to whom the court granted such order, which charges were not revealed to the court at the time of hearing of the original motion or that there was some other statutory disqualification, said court shall vacate the expungement order in question and reconsider the original motion in conjunction with the previously undisclosed information. L.1979, c. 178, s. 133, eff. Sept. 1, 1979. 2C:52-27. Effect of expungement Unless otherwise provided by law, if an order of expungement is granted, the arrest, conviction and any proceedings related thereto shall be deemed not to have occurred, and the petitioner may answer any questions relating to their occurrence accordingly, except as follows: a. The fact of an expungement, sealing or similar relief shall be disclosed as provided in section 2C:52-8b. b. The fact of an expungement of prior charges which were dismissed because of the persons acceptance into and successful completion of a supervisory treatment or other diversion program shall be disclosed by said person to any judge who is determining the propriety of accepting said person into a supervisory treatment or other diversion program for subsequent criminal charges; and c. Information divulged on expunged records shall be revealed by a petitioner seeking employment within the judicial branch or with a law enforcement or corrections agency and such information shall continue to provide a disability as otherwise provided by law. L.1979, c. 178, s. 134, eff. Sept. 1, 1979. Amended by L.1981, c. 290, s. 45, eff. Sept. 24, 1981. 2C:52-27.1 Petition to rescind order of debarment for health care claims fraud. 5. a. If an order of expungement of records of conviction under the provisions of chapter 52 of Title 2C of the New Jersey Statutes is granted by the court to a person convicted of health care claims fraud in which the court had ordered the offenders professional license be forfeited and the person be forever barred from the practice of the profession pursuant to paragraph (1) of subsection a. of section 4 of P.L.1997, c.353 (C.2C:51-5), the person may petition the court for an order to rescind the courts order of debarment if the person can demonstrate that the person is sufficiently rehabilitated. b.If an order to rescind the courts order of debarment is granted, the person granted the order may apply to be licensed to practice the profession from which the offender was barred. L.1997,c.353,s.5. 2C:52-28. Motor vehicle offenses Nothing contained in this chapter shall apply to arrests or conviction for motor vehicle offenses contained in Title 39. L.1979, c. 178, s. 135, eff. Sept. 1, 1979. 2C:52-29. Fee Any person who files an application pursuant to this chapter shall pay to the State Treasurer a fee of $30.00 to defer administrative costs in processing an application hereunder. L.1979, c. 178, s. 136, eff. Sept. 1, 1979. 2C:52-30. Disclosure of expungement order Except as otherwise provided in this chapter, any person who reveals to another the existence of an arrest, conviction or related legal proceeding with knowledge that the records and information pertaining thereto have been expunged or sealed is a disorderly person. Notwithstanding the provisions of section 2C:43-3, the maximum fine which can be imposed for violation of this section is $200.00. L.1979, c. 178, s. 137, eff. Sept. 1, 1979. 2C:52-31. Limitation Nothing provided in this chapter shall be interpreted to permit the expungement of records contained in the Controlled Dangerous Substances Registry created pursuant to P.L.1970, c. 227 (C. 26:2G-17 et seq.), or the registry created by the Administrative Office of the Courts pursuant to section 2C:43-21. L.1979, c. 178, s. 138, eff. Sept. 1, 1979. 2C:52-32. Construction This chapter shall be construed with the primary objective of providing relief to the one-time offender who has led a life of rectitude and disassociated himself with unlawful activity, but not to create a system whereby periodic violators of the law or those who associate themselves with criminal activity have a regular means of expunging their police and criminal records. L.1979, c. 178, s. 139, eff. Sept. 1, 1979. |
Thursday, August 18, 2011
NJSA 2C:52-1 Expungement/Erase Criminal Arrests-New articles, ABA newsletters and Community events
Expunge/Record Sealing NJSA 2C:52-1-New articles, ABA newsletters and Community events
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Expanded Duty of an Executor in Probate Estate Administration-New articles, ABA newsletters and Community events
Expanded Duty of an Executor in Probate Estate Administration |
1. Conduct a thorough search of the decedent's personal papers and effects for any evidence which might point you in the direction of a potential creditor;
Your attorney will not be able to file the NJ inheritance tax return until it is clear as to the amounts of the medical bills. Medical expenses can be deducted in the inheritance tax. Under United States Supreme Court Case, Tulsa Professional Collection Services, Inc., v. Joanne Pope, Executrix of the Estate of H. Everett Pope, Jr., Deceased, the Personal Representative in every estate is personally responsible to provide actual notice to all known or "readily ascertainable" creditors of the decedent. This means that is your responsibility to diligently search for any "readily ascertainable" creditors. Other duties/ Executor to Do Bring Will to Surrogate Apply to Federal Tax ID # Set up Estate Account at bank (pay all bills from estate account)
Notice of Probate to Beneficiaries (Attorney will handle)
File notice of Probate with Surrogate (Attorney will handle) File first Federal and State Income Tax Return [CPA- ex Marc Kane] Prepare Inheritance Tax Return and obtain Tax Waivers (Attorney will handle) File waivers within 8 months upon receipt (Attorney will handle) Prepare Informal Accounting
In General. The executor's job is to (1) administer the estate--i.e., collect and manage assets, file tax returns and pay taxes and debts--and (2) distribute any assets or make any distributions of bequests, whether personal or charitable in nature, as the deceased directed (under the provisions of the Will). Let's take a look at some of the specific steps involved and what these responsibilities can mean. Chronological order of the various duties may vary.
An employer identification number ("EIN") should be obtained for the estate; this number must be included on all returns and other tax documents having to do with the estate. The executor should also file a written notice with the IRS that he/she is serving as the fiduciary of the estate. This gives the executor the authority to deal with the IRS on the estate's behalf. Pay the Debts. The claims of the estate's creditors must be paid. Sometimes a claim must be litigated to determine if it is valid. Any estate administration expenses, such as attorneys', accountants' and appraisers' fees, must also be paid.
Often it is necessary to hire an appraiser to value certain assets of the estate, such as a business, pension, or real estate, since estate taxes are based on the "fair market" value of the assets. After the filing of the returns and payment of taxes, the Internal Revenue Service will generally send some type of estate closing letter accepting the return. Occasionally, the return will be audited. Distribute the Assets. After all debts and expenses have been paid, the executor will distribute the assets. Frequently, beneficiaries can receive partial distributions of their inheritance without having to wait for the closing of the estate. Under increasingly complex laws and rulings, particularly with respect to taxes, in larger estates an executor can be in charge for two or three years before the estate administration is completed. If the job is to be done without unnecessary cost and without causing undue hardship and delay for the beneficiaries of the estate, the executor should have an understanding of the many problems involved and an organization created for settling estates. In short, an executor should have experience. |
Executor Duties and Responsibilities-New articles, ABA newsletters and Community events
Executor Duties and Responsibilities |
At some point in time, you may be asked to serve as the executor of the estate of a relative or friend, or you may ask someone to serve as your executor. An executors job comes with many legal obligations. Under certain circumstances, an executor can even be held personally liable for unpaid estate taxes. Lets review the major duties involved, which weve set out below. In General, the executors job is to 1. Administer the estate--i.e., collect and manage assets, file tax returns and pay taxes and debts--and 2. Distribute any assets or make any distributions of bequests, whether personal or charitable in nature, as the deceased directed (under the provisions of the will). Lets take a look at some of the specific steps involved and what these responsibilities can mean. Chronological order of the various duties may vary. Step 1: Probate. The executor must "probate" the will. Probate is a process by which a will is admitted. This means that the will is given legal effect by the court. The courts decision that the will was validly executed under state law gives the executor the power to perform his or her duties under the provisions of the will. Step 2: Manage the Estate. The executor takes legal title to the assets in the probate estate. The probate court will sometimes require a public accounting of the estate assets. The assets of the estate must be found and may have to be collected. As part of the asset management function, the executor may have to liquidate or run a business or manage a securities portfolio. To sell marketable securities or real estate, the executor will have to obtain stock power, tax waivers, file affidavits, and so on. Step 3: Take Care of Tax Matters. The executor is legally responsible for filing necessary income and estate-tax returns (federal and state) and for paying all death taxes (i.e., estate and inheritance). The executor can, in some cases be held personally liable for unpaid taxes of the estate. Tax returns that will need to be filed can include the estates income tax return (both federal and state), the federal estate-tax return, the state death tax return (estate and/or inheritance), and the deceaseds final income tax return (federal and state). Taxes usually must be paid before other debts. In many instances, federal estate-tax returns are not needed as the size of the estate will be under the amount for which a federal estate-tax return is required. An employer identification number ("EIN") should be obtained for the estate; this number must be included on all returns and other tax documents having to do with the estate. The executor should also file a written notice with the IRS that he/she is serving as the fiduciary of the estate. This gives the executor the authority to deal with the IRS on the estates behalf. Often it is necessary to hire an appraiser to value certain assets of the estate, such as a business, pension, or real estate, since estate taxes are based on the "fair market" value of the assets. After the filing of the returns and payment of taxes, the Internal Revenue Service will generally send some type of estate closing letter accepting the return. Occasionally, the return will be audited. Step 4: Pay the Debts. The claims of the estates creditors must be paid. Sometimes a claim must be litigated to determine if it is valid. Any estate administration expenses, such as attorneys, accountants and appraisers fees, must also be paid. Step 5: Distribute the Assets. After all debts and expenses have been paid, the distribute the assets with extra attention and meticulous bookkeeping by the executor. Frequently, beneficiaries can receive partial distributions of their inheritance without having to wait for the closing of the estate. WHO SHOULD SERVE AS EXECUTOR? The executors legally imposed fiduciary duty is to act in all ways in the best interests of the estate and its beneficiaries. The duties of an executor can be difficult and challenging and should not be taken lightly. We believe an executor needs not only the skills, training, and experience necessary to do the project--casual or part-time attention is not likely to achieve success. Under increasingly complex laws and rulings, particularly with respect to taxes, an executor can be in charge for two or three years before the estate administration is completed. If the job is to be done without unnecessary cost and without causing undue hardship and delay for the beneficiaries of the estate, the executor should have an understanding of the many problems involved and an organization created for settling estates. In short, an executor should have experience. Duty of Executor in Probate & Estate Administration 1. Conduct a thorough search of the decedents personal papers and effects for any evidence which might point you in the direction of a potential creditor; 2. Carefully examine the decedents checkbook and check register for recurring payments, as these may indicate an existing debt; 3. Contact the issuer of each credit card that the decedent had in his/her possession at the time of his/ her death; 4. Contact all parties who provided medical care, treatment, or assistance to the decedent prior to his/her death; Your attorney will not be able to file the NJ inheritance tax return until it is clear as to the amounts of the medical bills and other expenses. Medical expenses can be deducted in the inheritance tax. Under United States Supreme Court Case, Tulsa Professional Collection Services, Inc., v. Joanne Pope, Executrix of the Estate of H. Everett Pope, Jr., Deceased, the Personal Representative in every estate is personally responsible to provide actual notice to all known or "readily ascertainable" creditors of the decedent. This means that is your responsibility to diligently search for any "readily ascertainable" creditors. Other duties/ Executor to Do Bring Will to Surrogate Apply to Federal Tax ID # Set up Estate Account at bank (pay all bills from estate account) Pay Bills Notice of Probate to Beneficiaries (Attorney can handle) If charity, notice to Atty General (Attorney can handle) File notice of Probate with Surrogate (Attorney can handle) File first Federal and State Income Tax Return [CPA- ex Marc Kane] Prepare Inheritance Tax Return and obtain Tax Waivers (Attorney can handle) File waivers within 8 months upon receipt (Attorney can handle) Prepare Informal Accounting Prepare Release and Refunding Bond (Attorney can handle) Obtain Child Support Judgment clearance (Attorney will handle) Lets review the major duties involved- In General. The executors job is to (1) administer the estate--i.e., collect and manage assets, file tax returns and pay taxes and debts--and (2) distribute any assets or make any distributions of bequests, whether personal or charitable in nature, as the deceased directed (under the provisions of the Will). Lets take a look at some of the specific steps involved and what these responsibilities can mean. Chronological order of the various duties may vary. Probate. The executor must "probate" the Will. Probate is a process by which a Will is admitted. This means that the Will is given legal effect by the court. The courts decision that the Will was validly executed under state law gives the executor the power to perform his or her duties under the provisions of the Will. An employer identification number ("EIN") should be obtained for the estate; this number must be included on all returns and other tax documents having to do with the estate. The executor should also file a written notice with the IRS that he/she is serving as the fiduciary of the estate. This gives the executor the authority to deal with the IRS on the estates behalf. Pay the Debts. The claims of the estates creditors must be paid. Sometimes a claim must be litigated to determine if it is valid. Any estate administration expenses, such as attorneys, accountants and appraisers fees, must also be paid. Manage the Estate. The executor takes legal title to the assets in the probate estate. The probate court will sometimes require a public accounting of the estate assets. The assets of the estate must be found and may have to be collected. As part of the asset management function, the executor may have to liquidate or run a business or manage a securities portfolio. To sell marketable securities or real estate, the executor will have to obtain stock power, tax waivers, file affidavits, and so on. Take Care of Tax Matters. The executor is legally responsible for filing necessary income and estate-tax returns (federal and state) and for paying all death taxes (i.e., estate and inheritance). The executor can, in some cases be held personally liable for unpaid taxes of the estate. Tax returns that will need to be filed can include the estates income tax return (both federal and state), the federal estate-tax return, the state death tax return (estate and/or inheritance), and the deceaseds final income tax return (federal and state). Taxes usually must be paid before other debts. In many instances, federal estate-tax returns are not needed as the size of the estate will be under the amount for which a federal estate-tax return is required. Often it is necessary to hire an appraiser to value certain assets of the estate, such as a business, pension, or real estate, since estate taxes are based on the "fair market" value of the assets. After the filing of the returns and payment of taxes, the Internal Revenue Service will generally send some type of estate closing letter accepting the return. Occasionally, the return will be audited. Distribute the Assets. After all debts and expenses have been paid, the executor will distribute the assets. Frequently, beneficiaries can receive partial distributions of their inheritance without having to wait for the closing of the estate. Under increasingly complex laws and rulings, particularly with respect to taxes, in larger estates an executor can be in charge for two or three years before the estate administration is completed. If the job is to be done without unnecessary cost and without causing undue hardship and delay for the beneficiaries of the estate, the executor should have an understanding of the many problems involved and an organization created for settling estates. In short, an executor should have experience At some point in time, you may be asked to serve as the executor of the estate of a relative or friend, or you may ask someone to serve as your executor. An executors job comes with many legal obligations. Under certain circumstances, an executor can even be held personally liable for unpaid estate taxes. Lets review the major duties involved, which weve set out below. In General. The executors job is to (1) administer the estate--i.e., collect and manage assets, file tax returns and pay taxes and debts--and (2) distribute any assets or make any distributions of bequests, whether personal or charitable in nature, as the deceased directed (under the provisions of the Will). Lets take a look at some of the specific steps involved and what these responsibilities can mean. Chronological order of the various duties may vary. Probate. The executor must "probate" the Will. Probate is a process by which a Will is admitted. This means that the Will is given legal effect by the court. The courts decision that the Will was validly executed under state law gives the executor the power to perform his or her duties under the provisions of the Will. An employer identification number ("EIN") should be obtained for the estate; this number must be included on all returns and other tax documents having to do with the estate. The executor should also file a written notice with the IRS that he/she is serving as the fiduciary of the estate. This gives the executor the authority to deal with the IRS on the estates behalf. Pay the Debts. The claims of the estates creditors must be paid. Sometimes a claim must be litigated to determine if it is valid. Any estate administration expenses, such as attorneys, accountants and appraisers fees, must also be paid. Manage the Estate. The executor takes legal title to the assets in the probate estate. The probate court will sometimes require a public accounting of the estates assets. The assets of the estate must be found and may have to be collected. As part of the asset management function, the executor may have to liquidate or run a business or manage a securities portfolio. To sell marketable securities or real estate, the executor will have to obtain stock power, tax waivers, file affidavits, and so on. Take Care of Tax Matters. The executor is legally responsible for filing necessary income and estate-tax returns (federal and state) and for paying all death taxes (i.e., estate and inheritance). The executor can, in some cases be held personally liable for unpaid taxes of the estate. Tax returns that will need to be filed can include the estates income tax return (both federal and state), the federal estate-tax return, the state death tax return (estate and/or inheritance), and the deceaseds final income tax return (federal and state). Taxes usually must be paid before other debts. In many instances, federal estate-tax returns are not needed as the size of the estate will be under the amount for which a federal estate-tax return is required. Often it is necessary to hire an appraiser to value certain assets of the estate, such as a business, pension, or real estate, since estate taxes are based on the "fair market" value of the assets. After the filing of the returns and payment of taxes, the Internal Revenue Service will generally send some type of estate closing letter accepting the return. Occasionally, the return will be audited. Distribute the Assets. After all debts and expenses have been paid, the distribute the assets with extra attention and meticulous bookkeeping by the executor. Frequently, beneficiaries can receive partial distributions of their inheritance without having to wait for the closing of the estate. Under increasingly complex laws and rulings, particularly with respect to taxes, in larger estates an executor can be in charge for two or three years before the estate administration is completed. If the job is to be done without unnecessary cost and without causing undue hardship and delay for the beneficiaries of the estate, the executor should have an understanding of the many problems involved and an organization created for settling estates. COMPLAINT FOR ACCOUNTING A Complaint for Accounting is filed with the Probate Part to request on accounting, removal of the current executor and selection of a new person to administer and wrap up the estate. A signed certification of one or more beneficiaries is needed. In addition, an Order to Show Cause is prepared by your attorney. The Order to Show Cause is to be signed by the Judge directing the executor, through their attorney, to file a written answer to the complaint, as well as appear before the court at a specific date and time. As with a litigated court matter, trials can become expensive. Competent elder law/probate attorney may charge an hourly rate of $225-$350 per hour, with a retainer of $3000 needed. Attorneys will require the retainer to be paid in full up front. The plaintiff can demand the following: (1) That the named executor be ordered to provide an accounting of the estate to plaintiff. (2) Defendant, be ordered to provide an accounting for all assets of d1 dated five years prior to death. (3) Payment of plaintiffs attorneys fees and costs of suit for the within action. (4) Declaring a constructive trust of the assets of the decedent for the benefit of the plaintiff and the estate. (5) That the executor be removed as the executor/administrator of the estate and that p1 be named as administrator of the estate. (6) That the executor be barred from spending any estate funds, be barred from paying any bills, be barred from taking a commission, be barred from writing checks, be barred from acting on behalf of the estate, except as specifically authorized by Superior Court Order or written consent by the plaintiff. EXECUTORS COMMISSIONS Executors are entitled to receive a commission to compensate them for work performed. Under NJSA 3B:18-1 et seq., Executors, administrators and other fiduciaries are entitled to receive a commission on both the principal of the estate, and the income earned by assets. However, if you have evidence that the executor has breached their fiduciary duties or violated a law, your Superior Court accounting complaint can request that the commissions be reduced or eliminated. SALE OF REAL ESTATE AND OTHER PROPERTY Occasionally, a family member is living in a home owned by the decedent. To keep family harmony, often this family member is permitted to remain in the home temporarily. However, it may later become clear that the resident has no desire on moving, and the executor has neither an intention to make them move nor to sell the house. The remedy a beneficiary has can be to have your attorney include in the Superior Court complaint a count to 1) remove the executor 2) remove the tenant and make them pay rent to the estate for the time they used the real property since death without paying rent 3) compel the appraisal of the home and, thereafter, the sale of the property 4) make the executor reimburse the estate for the neglect or waste of assets. CONCLUSION As a beneficiary, you will probably eventually be requested to sign a release and refunding bond. If you have evidence of misappropriation, you may consider asking the executor for an informal accounting prior to signing the release and refunding bond. If you have concern regarding the handling of an estate, schedule an appointment to consult an elder law attorney. |
Executor Commissions in a Probate Case-New articles, ABA newsletters and Community events
Executor Commissions in a Probate Case |
The Law Offices of Kenneth Vercammen & Associates, handles Probate, contesting wills, contesting estates, Probate disputes, inheritance problems, estate mismanagement and theft, undue influence, contentious probates, and other relevant issues. We encourage you to consult an attorney if you are faced with any of these situations. There are three kinds of commission: Corpus commission (Title 3b: 18-25), income commission (Title 3b: 18-24), and termination commission (Title 3b: 18-28). 3B:18-14 Corpus commissions. 3B:18-14. Corpus commissions. Commissions on all corpus received by the fiduciary may be taken as follows:
Such commissions may be reduced by the court having jurisdiction over the estate only upon application by a beneficiary adversely affected upon an affirmative showing that the services rendered were materially deficient or that the actual pains, trouble and risk of the fiduciary in settling the estate were substantially less than generally required for estates of comparable size. 3B:18-16. Corpus commissions; unusual or extraordinary services? The court may, on an intermediate or the final settlement of the fiduciary's accounts, allow corpus commissions in addition to those hereinabove provided, on a showing that unusual or extraordinary services have been rendered by the fiduciary for which the fiduciary should receive extra compensation 3B:18-17. Taking annual amounts on account of corpus commissions? Fiduciaries may annually, without court allowance, take sums as follows on account of corpus commissions: if there is but one fiduciary, the amount so taken may equal one-fifth of 1% of the value of the corpus and, if there are two or more fiduciaries, the amount so taken may equal the commissions which may be taken pursuant to this section when there is but one fiduciary, plus one-fifth of the commissions for each fiduciary more than one.? 3B:18-18. Value of assets for computing commissions taken annually? In computing the amount of commissions which may be taken annually pursuant to N.J.S. 3B:18-17, the value of any item of corpus at the time when the item is received by the fiduciary, referred to in this section as the "presumptive value" of the item, may be used as the value of the item, or, at the option of the fiduciary, the value of the item at the end of the period for which the commissions are taken may be used. 3B:18-19. Failure to take commissions annually shall not constitute a waiver thereof? The failure of a fiduciary to take commissions in any year as provided in N.J.S. 3B:18-17 shall not constitute a waiver of the right of the fiduciary to take in a subsequent year the commissions not taken for that year 3B:18-20. Corpus commissions taken annually subject to review? Commissions taken as provided in N.J.S. 3B:18-17 shall be subject to review on intermediate and final accountings, and to the extent that aggregate commissions so taken exceed the commissions allowable under N.J.S. 3B:18-14 and N.J.S. 3B:18-15, they may be disallowed.? These areas are extremely complex, and you should not attempt to reach a decision on whether or not to take action (and, if so what action to take) without the assistance of counsel. You must call to schedule an in-office consultation as we cannot provide legal advice over the phone. The following are some of the NJ Court Rule on Commissions RULE 4:88. COMMISSIONS AND ATTORNEY'S FEE 4:88-1. Affidavit of Accountant's Services If the allowance of such commissions is within the discretion of the court, the applicant therefor shall, upon every application for commissions on corpus, at least 20 days prior to the day on which the account is settled, file an affidavit stating in detail the nature of the services rendered in administering the estate and specifying the amount of the commissions requested. 4:88-2. Commission Payments Before Settlement Whether or not annual commissions are taken pursuant to N.J.S.A. 3B:18-17, a fiduciary may apply to the court to which he or she is accountable for an ex parte order supported by appropriate affidavits for payment to the fiduciary on account of commissions on corpus for services to date. Such order shall not be binding on the beneficiaries, and the payment so ordered shall be subject to approval and allowance or to disallowance by the court upon the settlement of the fiduciary's account. 4:88-3. Notice as to Apportionment of Commissions The court shall not apportion commissions among cofiduciaries unless proof is made that five days' notice of the application for apportionment has been given to those of them who do not appear. |
Ethics Committee Opinion 701 Advisory Committee on Professional Ethics Electronic Storage-New articles, ABA newsletters and Community events
Ethics Committee Opinion 701 Advisory Committee on Professional Ethics Electronic Storage and Access of Client Files |
Ethics Committee Opinion 701 Advisory Committee on Professional Ethics Electronic Storage And Access of Client Files
Advisory Committee on Professional Ethics Appointed by the Supreme Court of New Jersey The inquirer asks whether the Rules of Professional Conduct permit him to make use of an electronic filing system whereby all documents received in his office are scanned into a digitized format such as Portable Data Format (“PDF”). These documents can then be sent by email, and as the inquirer notes, “can be retrieved by me at any time from any location in the world.” The inquirer notes that certain documents that by their nature require retention of original hardcopy, such as wills, and deeds, would be physically maintained in a separate file. In Opinion 692, we set forth our interpretation of the term “property of the client” for purposes of RPC 1.15, which then triggers the obligation of a lawyer to safeguard that property for the client. “Original wills, trusts, deeds, executed contracts, corporate bylaws and minutes are but a few examples of documents which constitute client property.” 163 N.J.L.J. 220, 221 (January 15, 2001) and 10 N.J.L. 154 (January 22, 2001). Such documents cannot be preserved within the meaning ofRPC 1.15 merely by digitizing them in electronic form, and we do not understand the inquirer to suggest otherwise, since he acknowledges his obligation to maintain the originals of such documents in a separate file. On the other hand, we also noted in Opinion 692 that a client file will likely contain other documents, such as correspondence, pleadings, memoranda, and briefs, that are not “property of the client” within the meaning of RPC 1.15, but that a lawyer is nevertheless required to maintain at least for some period of time in order to discharge the duties contained in RPC 1.1 (Competence) and RPC 1.4 (Communication), among others. While traditionally a client file has been maintained through paper records, there is nothing in the RPCs that mandates a particular medium of archiving such documents. The paramount consideration is the ability to represent the client competently, and given the advances of technology, a lawyer’s ability to discharge those duties may very well be enhanced by having client documents available in an electronic form that can be transmitted to him instantaneously through the Internet. We also note the recent phenomenon of making client documents available to the client through a secure website. This also has the potential of enhancing communications between lawyer and client, and promotes the values embraced in RPC 1.4. With the exception of “property of the client” within the meaning of RPC 1.15, therefore, and with the important caveat we express below regarding confidentiality, we believe that nothing in the RPCs prevents a lawyer from archiving a client’s file through use of an electronic medium such as PDF files or similar formats. The polestar is the obligation of the lawyer to engage in the representation competently, and to communicate adequately with the client and others. To the extent that new technology now enhances the ability to fulfill those obligations, it is a welcome development. This inquiry, however, raises another ethical issue that we must address. As the inquirer notes, the benefit of digitizing documents in electronic form is that they “can be retrieved by me at any time from any location in the world.” This raises the possibility, however, that they could also be retrieved by other persons as well, and the problems of unauthorized access to electronic platforms and media (i.e. the problems posed by “hackers”) are matters of common knowledge. The availability of sensitive client documents in an electronic medium that could be accessed or intercepted by unauthorized users therefore raises issues of confidentiality under RPC 1.6. The obligation to preserve client confidences extends beyond merely prohibiting an attorney from himself making disclosure of confidential information without client consent (except under such circumstances described in RPC 1.6). It also requires that the attorney take reasonable affirmative steps to guard against the risk of inadvertent disclosure. Thus, in Opinion 692, we stated that even when a closed client file is destroyed (as permitted after seven years), “[s]imply placing the files in the trash would not suffice. Appropriate steps must be taken to ensure that confidential and privileged information remains protected and not available to third parties.” 163 N.J.L.J. 220, 221 (January 15, 2001) and 10 N.J.L 154 (January 22, 2001). Similarly, in ACPE Opinion 694 and CAA Opinion 28 (joint opinion), we joined with the Committee on Attorney Advertising in finding that two separate firms could not maintain shared facilities where “the pervasive sharing of facilities by the two separate firms as described in the Agreement gives rise to a serious risk of a breach of confidentiality that their respective clients are entitled to.” 174 N.J.L.J. 460 and 12 N.J.L. 2134 (November 3, 2003). And in Opinion 515, we permitted two firms to share word processing and computer facilities without becoming “office associates” within the meaning of R. 1:15-5(b), but only after noting that “the material relating to individual cases of each attorney is maintained on separate ‘data’ disks used only by their respective secretaries and stored (while not in use) in each of their separate offices.” 111 N.J.L.J. 392 (April 14, 1983). We stress that whenever attorneys enter into arrangement as outlined herein, the attorneys must exercise reasonable care to prevent the attorneys employees and associates, as well as others whose services are utilized by the attorney, from disclosing or using confidences or secrets of a client. The attorneys should be particularly sensitive to this requirement and establish office procedures that will assure that confidences or secrets are maintained. Id. The critical requirement under RPC 1.6, therefore, is that the attorney “exercise reasonable care” against the possibility of unauthorized access to client information. A lawyer is required to exercise sound professional judgment on the steps necessary to secure client confidences against foreseeable attempts at unauthorized access. “Reasonable care,” however, does not mean that the lawyer absolutely and strictly guarantees that the information will be utterly invulnerable against all unauthorized access. Such a guarantee is impossible, and a lawyer can no more guarantee against unauthorized access to electronic information than he can guarantee that a burglar will not break into his file room, or that someone will not illegally intercept his mail or steal a fax. What the term “reasonable care” means in a particular context is not capable of sweeping characterizations or broad pronouncements. But it certainly may be informed by the technology reasonably available at the time to secure data against unintentional disclosure. Obviously, in this area, changes in technology occur at a rapid pace. In 1983, for instance, when Opinion 515 was published, the personal computer was still somewhat of a novelty, and the individual floppy disk was the prevailing data storage device. The “state of the art” in maintaining electronic security was not very developed, but the ability to prevent unauthorized access by physically securing the floppy disk itself satisfied us that confidentiality could be maintained. By implication, at the time we were less accepting of data stored on a shared hard drive, even one that was partitioned to provide for individual private space for use by different firms, because of the risk of breach of confidentiality under prevailing technology. We are of course aware that floppy disks have now become obsolete, and that it is exceedingly unlikely in this day and age that different law firms would attempt to share hard drive space on a conventional desktop computer, given the small cost of such computers in today’s market. New scenarios have arisen, however. It is very possible that a firm might seek to store client sensitive data on a larger file server or a web server provided by an outside Internet Service Provider (and shared with other clients of the ISP) in order to make such information available to clients, where access to that server may not be exclusively controlled by the firm’s own personnel. And in the context originally raised by the inquirer, it is almost always the case that a law firm will not have its own exclusive email network that reaches beyond its offices, and thus a document sent by email will very likely pass through an email provider that is not under the control of the attorney. We are reluctant to render an specific interpretation of RPC 1.6 or impose a requirement that is tied to a specific understanding of technology that may very well be obsolete tomorrow. Thus, for instance, we do not read RPC 1.6 or Opinion 515 as imposing a per se requirement that, where data is available on a secure web server, the server must be subject to the exclusive command and control of the firm through its own employees, a rule that would categorically forbid use of an outside ISP. The very nature of the Internet makes the location of the physical equipment somewhat irrelevant, since it can be accessed remotely from any other Internet address. Such a requirement would work to the disadvantage of smaller firms for which such a dedicated IT staff is not practical, and deprive them and their clients of the potential advantages in enhanced communication as a result. Moreover, it is not necessarily the case that safeguards against unauthorized disclosure are inherently stronger when a law firm uses its own staff to maintain a server. Providing security on the Internet against hacking and other forms of unauthorized use has become a specialized and complex facet of the industry, and it is certainly possible that an independent ISP may more efficiently and effectively implement such security precautions. We do think, however, that when client confidential information is entrusted in unprotected form, even temporarily, to someone outside the firm, it must be under a circumstance in which the outside party is aware of the lawyer’s obligation of confidentiality, and is itself obligated, whether by contract, professional standards, or otherwise, to assist in preserving it. Lawyers typically use messengers, delivery services, document warehouses, or other outside vendors, in which physical custody of client sensitive documents is entrusted to them even though they are not employed by the firm. The touchstone in using “reasonable care” against unauthorized disclosure is that: (1) the lawyer has entrusted such documents to an outside provider under circumstances in which there is an enforceable obligation to preserve confidentiality and security, and (2) use is made of available technology to guard against reasonably foreseeable attempts to infiltrate the data. If the lawyer has come to the prudent professional judgment he has satisfied both these criteria, then “reasonable care” will have been exercised.1 1 In the specific context presented by the inquirer, where a document is transmitted to him by email over the Internet, the lawyer should password a confidential document (as is now possible in all common electronic formats, including PDF), since it is not possible to secure the Internet itself against third party access. |