For example, if a seller had sold his house in December then the seller could have taken advantage of certain tax benefits.
However, he only realizes this in January and so wishes to backdate the document to December.
Therefore, if in doubt it is best to say “no” or to take external legal advice if appropriate.
An experienced solicitor who backdated a power of attorney document – claiming he wanted to help his elderly client – has been struck off the roll.
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.
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.
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?This is not an agreement that could have been made orally.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.