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He also has no way of knowing whether the backdating will be scrutinized by a regulatory authority or even a Court.
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.
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.
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.
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.
The argument is obviously not valid if the transaction is one which is required by law to be in writing such as a transfer of land.
For obvious reasons, any request to backdate a document for these reasons should be flatly turned down.
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.
The event did not happen during the time period required for the benefit so an attempt is being made to pretend that it did.
This is a fraud on the tax authorities, a criminal offence and is likely to get the lawyer who prepared the document disciplined by his regulator and possibly also charged as a co-conspirator.