Backdating

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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.The difficult question for a lawyer to answer is to what extent does he have to enquire into the veracity of his client’s statement that the document “is just recording an earlier agreement”?Does he need to check to see whether that was actually the case or can he take an ostrich-like position and put his head in the sand and not ask any questions?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 obvious reasons, any request to backdate a document for these reasons should be flatly turned down.

However, even if it is an agreement that could have been made orally the lawyer preparing the agreement has no way of knowing whether that is actually the case and that the agreement to be fully documented by him is the one that was reached at the earlier date.He also has no way of knowing whether the backdating will be scrutinized by a regulatory authority or even a Court.For example, will the document be provided in support of the party’s tax position giving the impression that a signed legal contact was in place before it was?Is there an obligation on the lawyer to make at least reasonable endeavour’s to confirm that he is being told the truth?Unfortunately, there is no simple or straight forward answer to this and it comes down to how comfortable the lawyer will be defending his position in agreeing to backdate the document if his judgment was wrong and the authorities challenge the document, possibly in a criminal complaint against the client.

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