Before the coronavirus pandemic, personal meetings were essential during the work of a lawyer, especially in the case of transactions requiring a countersignature – such as real estate sales, company founding and registration of company changes. The first step in the client relationship is client due diligence, during which the lawyer collects the client’s data and identifies the client. In the case of transactions requiring a countersignature, for example company founding, the lawyer met the client and the other party in his office, asked for their IDs, and then checked the data in the central system of the Ministry of Interior (Security of Legal Transactions system). The restrictions of the coronavirus pandemic have already passed, but remote identification and “telepresence” are still with us.
At the beginning of the client relationship, the lawyer is obliged to make sure that there are no exclusionary reasons for the transaction defined by Act LIII. of 2017 on the Prevention and Suppression of Money Laundering and the Financing of Terrorism.
The Hungarian Bar Association (HBA) has stated that the identification of a natural person client does not necessarily have to take place during a personal meeting with the lawyer, it is possible to identify clients remotely even if the client has never met the acting lawyer before. Remote identification can be carried out using electronic communication devices that meet the conditions set by the HBA, the use of which is mandatory in some cases, but recommended for all transactions (e.g. Skype for Business, Microsoft Teams, Cisco Webex Meetings, etc.).
At the beginning of the remote identification, the client must first expressly declare that he consents to the remote identification, and then show all sides of his IDs to be used for identification to the camera so that the document is clearly visible. The client must also be required to move the ID containing a security element (e.g. hologram) in front of the camera in such a way that the security element can be recognized on the ID. During remote identification, the lawyer must make sure that the photo on the presented ID matches the face, gender, and approximate age of the identified natural person. The audio and visual material of the identification must be recorded by the lawyer, and along with other client identification documents, must be kept for 8 years. Remote identification can be a huge help in the case of company procedures, for example with foreign customers.
What happens after the identification?
Generally, after the identification, the parties must sign the document to be countersigned in front of the lawyer or acknowledge it as their own signature before the lawyer. This can happen without a personal meeting in two ways.
On one hand, it is possible for the lawyer to countersign the document even if it was not signed before them, or if the parties did not recognize the signature on the document as their handwritten signature if the parties provide it with a certified certificate of enhanced security electronic signature or authenticated with the AVDH service. In case of foreign clients only the certified signature can be considered, the legal effect of which is the same throughout the EU, so even the certified signature of a Spanish client provided by a Spanish trust service provider can be countersigned by a Hungarian lawyer. If the foreign client does not have a signing certificate, he can request it from a Hungarian trust service provider, also via video identification, without a personal meeting. In this way, the countersignature can be solved without creating paper-based documents and without the need for either party nor the lawyer to meet.
Telepresence – signature via videophone
On the other hand, the parties have the option to sign remotely, or to have their signatures recognized as their own in the so-called “telepresence”. If the client was previously identified by the lawyer, either in person or through remote identification, the lawyer can countersign the document even if the document was not physically signed in the presence of the lawyer, but via videophone. To avoid later legal disputes, it is advisable for the lawyer to discuss the content of the document together with the party during the remote signing. During the video call, the acting lawyer must expressly declare to the party concerned that the contents of the document correspond to his wishes, provided that such statement is not contained in the instrument itself. The “telepresence” process must be recorded in the same way as the remote identification, and in the event of a countersignature, the video recording must be kept for 10 years together with the other documents.
The difficulty of the “telepresence” is that it results in paper-based documents, so the client must go to the post office or to the other party and hand over the paper to them during a physical meeting, finally, the version signed by all parties must also be sent to the lawyer. The lawyer then countersigns the paper-based document, and returns the final documents to the parties, so that everyone has a copy of the original document.
Nevertheless, with remote identification and “telepresence” has opened the possibility to identify customers via video conference and to sign remotely in this way.