Yet, for the business lawyer, backdating documents is often not only permissible, but is a regular and necessary part of everyday practice.
The challenge for the business lawyer is determining when backdating is legitimate and when it is not.
Past acts and events can – and often must – be documented.
To protect themselves, their firms and their clients, attorneys should always be certain their backdating falls into the latter category.
Insufficient or nonexistent records, human errors in recalling past events and injudicious reliance on the observations of others can all lead to backdating that misrepresents.
A lawyer should be certain of the relevant facts before backdating a document.
There are several reasons for this difficulty, including that ambiguous law might govern the time of an event and relevant facts may be uncertain.
Because they can create uncertainty regarding the date of an agreement, both present challenges for a lawyer considering backdating a document.
Perhaps the highest profile of these cases was the SEC’s investigation of Apple Inc., its former general counsel and its iconic CEO, Steve Jobs.Misrepresentation versus memorialization Whether backdating a document is appropriate depends on the backdating’s “purpose and effect.” Backdating to perpetrate a fraud is obviously unethical and illegal.However, backdating to memorialize a prior act or event is a legitimate and necessary practice.Consequently, backdating the document formalizing the agreement to the date the parties struck the deal can be precarious.If the agreement was reached earlier than the document’s date, the backdating memorializes; if the agreement was not reached until a later date, the backdating misrepresents.For example, if parties clearly reach an agreement on Dec.