Prohibitions on backdating medical agreements
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.For obvious reasons, any request to backdate a document for these reasons should be flatly turned down.Is it legal to comply with the request or must it always be refused outright?Alternatively, is there a way of legally trying to achieve the required objective?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.He also has no way of knowing whether the backdating will be scrutinized by a regulatory authority or even a Court.Is the client a longstanding one who has always acted properly in the past? These are questions he will probably be asked by the judge or regulator if things go wrong and to which he will need convincing answers.There are some ways in which the lawyer can give himself some protection in agreeing to such a request but they are not foolproof.
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.
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.
For example, if a seller had sold his house in December then the seller could have taken advantage of certain tax benefits.
For example, if one wishes to backdate a document for the purposes of recording an earlier oral agreement, it should nevertheless still be drafted in such a way so as to avoid giving the incorrect impression that it was actually signed on the date stated.
The best way to achieve this is to state openly in the document that it is recording an earlier oral agreement made on, and so is with effect from, a particular date and then date it the actual date it was signed.