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.
Another example of backdating that memorializes is drafting and executing records of action of a corporation’s board of directors after the board has adopted resolutions or taken other action.
Additionally, as a matter of law, parties to a contract can make their agreement effective on a date of their choosing, as long as no third party’s rights are implicated.
Attorneys who inappropriately backdate documents can face ethical sanctions, lawsuits and even criminal prosecution.
Unfortunately, it is sometimes difficult to determine whether backdating misrepresents or memorializes.
Drafting and executing a document after an event occurs, but in a manner that accurately reflects the date on which the event transpired, is a permissible form of backdating.