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The best way to achieve this is to state openly in the document that it is recording an earlier oral agreement made on, and so is with effect from, a particular date and then date it the actual date it was signed.

The position is then clear to all who subsequently look at the document.

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.

The event did not happen during the time period required for the benefit so an attempt is being made to pretend that it did.

However, the actual date of signature should nevertheless be set out in the attestation clause at the end to avoid any claims that the document was intentionally misleading.Many acquisition agreements begin with an “Agreement between” the parties “effective as of” a given date.Does it matter if this effective date is prior to the date the parties actually entered into the agreement?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.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.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?

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