Client Pressure to Backdate and Conceal an Encroachment
A real estate attorney hires you to survey a residential property in DC for a refinance. The lender's closing is scheduled for Friday. On Wednesday, the attorney asks you to change the date on your field notes and survey plat to show that the fieldwork was performed two weeks earlier, because the title company's survey exception requires a survey dated within 30 days. The attorney also asks you to omit a 2-ft encroachment of the neighbor's retaining wall onto the subject property, saying 'it's minor and the lender won't care.' You have already signed and sealed a plat showing the encroachment. Your firm's policy requires retaining original field notes for five years. A junior technician says the attorney has threatened to withhold payment unless you comply. The attorney is a long-standing client and has referred several projects to your firm.
1. How should you respond to the backdating request? Identify the specific ethical and legal issues.
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Refuse. The date on field notes and a sealed plat is a factual record of when the work was done. Backdating is falsification of a professional record and misrepresentation to the lender and title company. It could violate DC licensure law and the board's rules, expose you to fraud claims, and void your professional liability coverage. The seal and signature certify the survey as of the date shown; changing the date without new fieldwork makes the certification false. Offer a lawful alternative: perform the fieldwork now and issue a plat dated today, which satisfies the 30-day requirement if the closing is Friday; or explain that the existing plat is still accurate as of its original date. Do not alter the notes. Document the request and your refusal.
2. What about omitting the encroachment? What must appear on the plat and what should you tell the attorney and lender?
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The encroachment must be shown. A survey for a lender is typically held to ALTA/NSPS standards, which require depiction of encroachments, easements, and other survey matters. Omitting a known 2-ft retaining-wall encroachment would misrepresent the property and could mislead the lender and title insurer. Show the wall, dimension the encroachment, and note whose land is affected. Tell the attorney that you cannot conceal it and that the lender/title company must decide whether to except it, require a waiver, or require removal. If the attorney insists on omission, withdraw from the engagement and document why.
3. The attorney threatens to withhold payment. What are your options under professional practice and business principles?
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Payment for services already performed is a contract issue separate from the client's request to alter the record. Do not trade your professional obligations for payment. Put the request and your refusal in writing, notify your firm's counsel or principal, and complete the work that can be completed ethically. You may invoice for the survey, state that the sealed plat is available with the encroachment shown, and pursue normal collection if the bill is not paid. If the attorney continues to pressure you, terminate the engagement for cause and preserve all records. Do not release a misleading or altered plat. A long-standing referral relationship does not justify falsification.