Please name for me one company that has ever, in the history of corporate law, backdated stock options and yet properly disclosed and accounted for them.I am sure that from time to time we have all come across the vexed question of backdating documents.The difficult question for a lawyer to answer is to what extent does he have to enquire into the veracity of his client’s statement that the document “is just recording an earlier agreement”?Does he need to check to see whether that was actually the case or can he take an ostrich-like position and put his head in the sand and not ask any questions?For obvious reasons, any request to backdate a document for these reasons should be flatly turned down.However, an explanation often given by the person wanting to backdate the document is that the document is merely meant to reflect an oral agreement that has already been made and that this is just a way of documenting it.For example, if a seller had sold his house in December then the seller could have taken advantage of certain tax benefits.However, he only realizes this in January and so wishes to backdate the document to December.
It goes without saying that they also won't realize that, in reality, it's all being done a month later.
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.
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?
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.
My question is, if that's your position, how can anybody be feigning shock that Nancy Heinen then went on to file all the false documents that would be required in order to carry out what everyone understood to be a spitting-on-the-sidewalk type infraction they were willing to commit.