It’s a scenario that might seem tempting. A handshake deal was finalised years ago, but the formal paperwork was never completed. A crucial contract was signed and executed, but the original has been lost to time. The urge to simply create a new document and date it in the past—to “fix” the problem quickly—can be powerful.
Stop right there.
Backdating a legal document, no matter the intention, is a cardinal sin in the legal world. It’s a dangerous path fraught with severe ethical and legal consequences. A recent case from the United Kingdom serves as a stark and timely reminder of why this practice is an absolute prohibition at Hayton Kosky and across the Australian legal profession.
A Cautionary Tale from the UK
In 2023, Jonathan Peter Durkin, the managing partner of a UK law firm, found himself facing a Solicitors Disciplinary Tribunal. His transgression? He created a client care letter but dated it three years in the past, as if it had been sent in 2020. While Mr Durkin argued his conduct was merely ‘reckless’ and not dishonest, the Tribunal took a firm stance.
Although the client suffered no direct financial loss, the act of backdating was deemed a serious breach of professional conduct that had “undoubtedly harmed the reputation of the legal profession”. The result was a hefty costs order of £24,885 and a 12-month suspension from practice—a significant penalty highlighting that the act itself, an act of misrepresentation, is where the professional harm lies.
The Clear Line in Australia and Victoria
While this case unfolded overseas, the principles are universally applicable and are enforced with uncompromising clarity here in Australia. The date on a legal document is not a trivial detail; it is a statement of fact. It attests to the specific moment in time when the document was signed and became legally effective. To knowingly affix an incorrect, earlier date is to make a false representation.
In Victoria, the legal profession is governed by the Legal Profession Uniform Law. The ethical framework is laid out in the Legal Profession Uniform Law Australian Solicitors’ Conduct Rules 2015. These rules are not mere guidelines; they are the bedrock of our profession, enforced by the Victorian Legal Services Commissioner. Any breaches are scrutinised and can lead to disciplinary action before the Victorian Civil and Administrative Tribunal (VCAT).
Deliberately falsifying the date on a document can mislead courts, government bodies like the State Revenue Office, other parties to a transaction, and the public. It fundamentally undermines the trust that is essential for the administration of justice.
The Right Way: Proper Alternatives to Backdating
So, what should you do when a past agreement needs to be formalised, or a lost document needs to be reconstituted? The answer is never to alter the past on paper. Instead, the correct and ethical approach is to create a new, honest document today that accurately confirms what happened previously.
There are established, legitimate methods to achieve this:
- The Deed of Confirmation: This is a powerful and transparent tool. Imagine two parties made a binding oral agreement years ago. A lawyer can draft a Deed of Confirmation, which is dated today—the actual day of signing. The body of the deed, however, will clearly and explicitly recite the history. It will state that its purpose is to confirm and formalise the precise terms of the agreement that was entered into on a specific date in the past. It doesn’t pretend to be from the past; it truthfully records a past event from the present day.
- A Statutory Declaration: Another robust method is for an individual to make a formal, sworn statement. A lawyer can assist a client in drafting a Statutory Declaration, which is also dated today. This document sets out the sequence of past events or the terms of a prior undocumented agreement in a clear, narrative form. It is then signed and witnessed under penalty of perjury. It becomes a formal, truthful record that stands as compelling evidence of the past event, all created with complete integrity in the present.
The distinction is critical. These legitimate methods are about clarification, not deception. Backdating is, by its very nature, an act designed to create a false reality.
The Consequences of Getting It Wrong
The professional and personal cost of backdating a document in Victoria can be catastrophic. The potential ramifications include:
- Professional Misconduct: A solicitor who backdates a document will likely face disciplinary action, leading to a finding of professional misconduct or unsatisfactory professional conduct.
- Suspension or Being Struck Off: VCAT has the power to suspend a lawyer’s practising certificate for a significant period or, in serious cases, to remove their name entirely from the roll of legal practitioners, ending their career.
- Criminal Charges: This is not just an ethical breach. In certain circumstances, backdating a document to mislead a court or gain a financial advantage could lead to serious criminal charges, such as attempting to pervert the course of justice or obtaining property by deception under the Crimes Act 1958 (Vic).
- Civil Liability: A solicitor could be sued by their client or a third party for any financial losses that result from the backdated document.
Our Unwavering Commitment
The UK case is a clear warning. In Australia, and particularly in Victoria, the message is unequivocal. Backdating is a breach of a solicitor’s paramount duty to the court, a betrayal of the trust placed in us by our clients, and a stain on the integrity of the entire legal profession.
At Hayton Kosky, our commitment to ethical practice is absolute. We will never backdate a document. We will always find the correct, transparent, and legitimate way to document our clients’ affairs. If you need to formalise a past agreement or have lost a crucial document, contact us to discuss the right way forward.