Backdating options legal
The position is then clear to all who subsequently look at the document.
Another way is to state at the beginning of the document that it is made “as of” the required date.
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.
A client or, in the case of an in house lawyer colleague (who for the purposes of this article will also be considered a client), asks you to prepare a document and then your heart sinks as he says “oh and it has to be dated” and gives a date which has already passed.
It is not straight forward and can give problems to any lawyer that agrees to backdate a document, even if he makes it clear on the document that it is backdated, as he must be careful to make sure that he knows why the document is being backdated and that it is being done for a legitimate reason.
Therefore, if in doubt it is best to say “no” or to take external legal advice if appropriate.
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.