Example of backdating
There are some ways in which the lawyer can give himself some protection in agreeing to such a request but they are not foolproof.
For example, if one wishes to backdate a document for the purposes of recording an earlier oral agreement, it should nevertheless still be drafted in such a way so as to avoid giving the incorrect impression that it was actually signed on the date stated.
So as can be seen, the issue of backdating can be a contentious one.
It is not straight forward and can give problems to any lawyer that agrees to backdate a document, even if he makes it clear on the document that it is backdated, as he must be careful to make sure that he knows why the document is being backdated and that it is being done for a legitimate reason.
December 2014 – January 2015 A client or, in the case of an in house lawyer colleague (who for the purposes of this article will also be considered a client), asks you to prepare a document and then your heart sinks as he says “oh and it has to be dated” and gives a date which has already passed.
Is it legal to comply with the request or must it always be refused outright?
For example, if a seller had sold his house in December then the seller could have taken advantage of certain tax benefits.
This is a fraud on the tax authorities, a criminal offence and is likely to get the lawyer who prepared the document disciplined by his regulator and possibly also charged as a co-conspirator.Needless to say, even these methods of “backdating” a document should not be used when there was no earlier agreement and the document is just an attempt to give a false impression that something occurred on an earlier date than it did.Because even putting “as of” a certain date will not protect the lawyer from implication in a criminal act if the purpose of the backdating is actually to defraud or mislead the taxman, any regulatory authority or even any other individual and the lawyer knew or should have known that this was the case.Alternatively, is there a way of legally trying to achieve the required objective?If the document is putting in place something which “should have been done” but hasn’t been, usually for tax or similar reasons, then the position is straightforward.