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.
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.
An erroneous assessment of a client’s veracity, even if made innocently, can lead to severe consequences if the backdating perpetrates a fraud.
Perhaps the highest profile of these cases was the SEC’s investigation of Apple Inc., its former general counsel and its iconic CEO, Steve Jobs.Insufficient or nonexistent records, human errors in recalling past events and injudicious reliance on the observations of others can all lead to backdating that misrepresents.