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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.

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.

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.

Perhaps the most fraudulent form of impermissible backdating is documenting and dating an act that never occurred. Additionally, backdating is impermissible when the backdated document describes an act that actually occurred, but at a date subsequent to the date of the document, in order to secure benefits to which a party is not entitled.

Because they can create uncertainty regarding the date of an agreement, both present challenges for a lawyer considering backdating a document.Each of the above are examples of situations where attorneys may legally backdate documents.Staying in bounds Staying on the right side of the misrepresentation-memorialization line is critical.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.

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