Company proceedings, real estate purchase and sale contract: almost everyone automatically remembers that a lawyer is required for these processes and that the signature usually takes place in the legal representative’s office. However, many are not aware that company formation, company modification or even a real estate purchase and sale that requires a lawyer’s countersignature can be handled electronically without the lawyer’s personal presence.
Now that personal meetings must be minimized as much as possible, the above option has become particularly important, so we will explain how it works.
Digitalization also provides a solution in law – the regulatory background is flexible
The regulation of lawyer’s activities in the field of countersignature creates a convenient and, now, during the epidemic emergency, a particularly useful opportunity for people staying abroad or otherwise busy. This allows lawyers to act electronically, using a video call, when countersigning the signature of the previously identified party. It is important that the procedure meets the criteria of simultaneous transmission and recording of sound and image.
Previously, in the case of a foreign signature, a Hungarian diplomatic mission’s official authentication or Apostille certificate was required for a simpler company establishment or modification, or for the purchase and sale of real estate – or for the necessary authorization. Compliance with these formal rules required significant time and cost on the part of the person concerned, but today this can be solved faster and cheaper. Diplomatic authentication or authentication or an Apostille certificate is not required for the full probative value of a document countersigned by a lawyer but signed by the parties abroad.
In practice, the client can sign the document during a video call, even thousands of kilometers away from the lawyer, or have his signature recognized as his own on the document presented during the video call. Based on this, the lawyer can countersign the given document and submit it to the court of registration or land office without fulfilling any further formalities.
Moreover, it is not a problem if the countersigning lawyer is not available, as the person authorized to replace him can also conduct the video call. Accordingly, the client does not have to appear before a foreign authority and go through the related bureaucratic procedures, but can quickly and easily arrange the signature from his own office or, which is now timely, from his home.
But the regulation provides even greater flexibility in certain cases. In the case of documents that are also suitable for handling the given case in electronic form, for example during company proceedings – documents related to the real estate registry are not yet such – a video call is not even necessary for the lawyer to countersign them or use them as electronic documents. In the case of a company proceeding, however, it is also necessary for the signatory to have qualified electronic signature authorization. Conceptually, this is an enhanced security electronic signature, which was created with a qualified electronic signature creation device and which is based on a qualified electronic signature certificate. In simple terms, this means that for such signing authority, an organization with appropriate authentication (such as Microsec, Netlock) provides a suitable smart card after personal identification, with which the electronic signature can be implemented. According to our experience, the majority of company managers do not yet have such a signing device, which, however, does not prevent administration without personal presence, but makes it necessary to physically create (print and mail) documents.
Identification for money laundering purposes
According to the current money laundering provisions, a lawyer is obliged to identify his client and can only perform an order in the case of a properly identified client. The question therefore arises whether the above procedure can also be applied in the case of persons who have not been previously identified by the lawyer.
Under the current anti-money laundering and attorney-at-law regulations, client identification can be performed via an electronic communication device that has been previously audited by the attorneys’ supervisory body, the Bar Association. Audited software includes, for example, Skype and certain versions of the MTeams videophone programs, which are relatively easily accessible to a wide range of people. In other words, the acting attorney can first “remotely identify” the person via a video call, and then immediately after that, the client can sign or acknowledge the signature as his own, or possibly sign the electronic document using a document authentication service.