Lawyers – when not battling in a courtroom – are perhaps most widely identified in Hungary with the image of an attorney countersigning a document. Countersigning is indeed essential for most legal transactions, in some cases mandatory by law.
The function of countersigning is on one hand to prove that an attorney has duly identified the parties and on the other hand that the parties signed the document in an attorney’s presence (so-called “attestation”). But can identification and especially attestation be carried out remotely – without personal contact? Will an attorney act in line with the law when countersigning a document without the personal presence of the parties – even if the parties were identified remotely?
The good news is that the legislation quickly adapted to the new developments of technology – prior to the coronavirus outbreak – as remote identification and remote signing via electronic means have been already incorporated into the Hungarian law. But life is now writing new rules of the game…
The Hungarian Bar Association indicates the audited applications in its prospectus published on its website - available in Hungarian by clicking here - through which remote identification and countersigning can be performed. As of today, available applications are the following:
- Skype for Business,
- Microsoft Teams,
- Google Hangouts Meet,
Attention: Zoom was added to the list on 24 March 2020 – and was canceled on 3 April 2020.
It is important that the revocation of the audit thereof does not affect the validity of the remote identifications and remote countersignatures made via this system prior to revocation.
But how does remote identification take place? As a first step the client’s explicit consent to the identification process must be sought in all cases. Then, both pages of the document required for the identification (identity card, address card, passport) must be presented to the camera in a visible way and the data on such document must be read aloud (intelligibly) by the client. The recording must be kept by the attorney for the duration of the processing of other data for identification.
The identification is followed by attestation during which the client must expressly declare on the videophone that he/she has acquainted the content of the document. The relevant legislation does not explicitly state that the pages of the document to be signed should be presented to the camera by the signatory party, however, this follows from the requirements applicable before the COVID outbreak: each page of the document to be countersigned must be signed by the signatory. In order to avoid subsequent disputes, it is essential that all pages of the document should be presented to the camera by the signatory before signing in a way easily recordable by the camera.
Then comes the most significant step of remote attestation: the signature and the client’s acknowledgment of the signature as his/her own. This process must also be fully recorded and the recording kept by the attorney for the duration of the processing of other identification data. It is important that if the remote identification or attestation is interrupted during the process for any reason whatsoever (e.g. typically, an internet connection failure or any other reason) the complete process must be repeated.
Issues related to documents signed abroad
The next question that may come up is whether the above rules apply to documents signed abroad by the clients. Signing documents abroad always required careful organization as it demanded the collaboration of a notary public as well as the acquiring of authentication. By now this practice has changed as the relevant legislation does not stipulate any border-adjusted provisions. The greatest breakthrough in this matter was the Section 44 (7) of the current Attorneys’ Act which asserts that in order to guarantee the full probative value of a document that is countersigned by an attorney and signed by the parties abroad there is no need for diplomatic certification, authentication or Apostille. Accordingly, the formal requirements earlier applied to the documents signed abroad and countersigned by attorney – even via remote identification and remote attestation – such as the acquiring of the diplomatic certification, authentication or an Apostille certificate – will no longer apply.
Dr. Andrea Jádi Németh is a Managing Partner at Jádi Németh Attorneys at Law