In the legal profession, integrity is the cornerstone upon which justice is built. A lawyer’s duty to the court and to the administration of justice is paramount, demanding unimpeachable honesty. Following our discussion of the fundamental rules a legal practitioner must adhere to, we now turn to a critical and absolute prohibition: the backdating of documents.
The recent case involving two Melbourne lawyers, where one is accused of altering a hospital letter to explain a client’s absence from court, serves as a powerful reminder of the severe consequences of creating or using false documents. While that specific allegation involves alteration, it falls under the same dangerous umbrella as backdating—the creation of a document that purports to be something it is not.
As professional legal practitioners, we cannot and will not participate in the practice of backdating a document. The date on a legal document is a statement of fact, attesting to when it was signed and executed. To deliberately affix an earlier date is to make a false representation, an act that can mislead the court, other parties, and the public, potentially amounting to professional misconduct or even criminal offences, such as attempting to pervert the course of justice.
However, clients often find themselves in situations where a past agreement was made verbally, or a formal document has been lost. They may ask, “Can’t you just create a document and date it back to when we agreed?” The answer is, and must always be, an unequivocal “no.”
So, what can a lawyer do? The legal profession has established, ethical, and proper procedures for documenting past events without compromising integrity. The solution is not to alter the past, but to create a new, honest document today that confirms what happened previously. This is known as a contemporaneous document.
Here are two common and legitimate methods:
- The Deed of Confirmation: This is a powerful tool used when a prior agreement needs to be formally documented for the record. For instance, if two parties made a binding agreement years ago but never signed a formal deed, or if that original deed is now lost, a lawyer can draft a Deed of Confirmation. This document is dated today—the actual date of signing. Its contents, however, will explicitly state that its purpose is to confirm and formalise the terms of the agreement that was entered into on a specific date in the past. It does not pretend to have been created in the past; it truthfully records a past event from the present day.
- The Declaratory Statement or Statutory Declaration: Another common method is for a person to make a formal declaration. A lawyer can assist a client in drafting a declaration, dated today, which sets out a sequence of past events or the terms of a prior undocumented agreement. This statement is then signed and witnessed, often as a statutory declaration under penalty of perjury. It becomes a formal, truthful record, confirming facts as they happened. It stands as evidence of the past event, created honestly in the present.
The distinction is critical. These legitimate methods are transparent. They do not seek to deceive; they seek to clarify. Backdating, by its very nature, is an act of deception. It creates a false narrative and undermines the very foundation of trust that the legal system relies upon.
For any legal practitioner, the temptation to take a shortcut for a client by backdating a document must be resisted at all costs. The professional, ethical, and lawful path is to use contemporaneous documents to reflect the truth. By doing so, we protect our clients, the integrity of the legal system, and our professional standing.