I am sure that from time to time we have all come across the vexed question of backdating documents.
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.
However, he only realizes this in January and so wishes to backdate the document to December.
The event did not happen during the time period required for the benefit so an attempt is being made to pretend that it did.
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.
What confirmation of the earlier agreement did the client or the company for which the client (and lawyer) works provide?
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”?
However, an explanation often given by the person wanting to backdate the document is that the document is merely meant to reflect an oral agreement that has already been made and that this is just a way of documenting it.
In theory, this would appear on the face of it to be a reasonable request, as it is just a private arrangement between two parties.
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?
Is there an obligation on the lawyer to make at least reasonable endeavour’s to confirm that he is being told the truth?