Duty as a mediator
As a mediator I am often in a position to receive sensitive data of the attorney’s client as well as communications that are protected by the mediation confidentiality privilege. Accordingly, is important to me, in addition to being required, that I take reasonable means to protect any data thusly received. The requirement as a mediator is pursuant to mediation ethics.
So what do I do? I have two avenues for gathering your information. That includes a secure portal via Clio Connect (overview here) which is my case management software. The other is via the Mediator Module in TXdocs. Each permits secure uploads of files or, in the case of the Mediator Module, divorce inventory data. Thereafter, any data I receive is stored in the Clio secure cloud storage (in TXdocs for the divorce inventory).
Your sensitive data is not retained on my computer or local network. If you send me such data by email, it gets shuffled off to Clio for secure storage in their cloud. NOTE: I am relying on the representations of Clio and TXdocs as to the security of their cloud storage. After investigation I am confident of their security protocols.
Duty of the lawyer
While mediating, the function is not that of a lawyer and thus, I submit, the ethical requirements imposed on lawyers is are not required of the mediator although that person happens to be a lawyer. Notwithstanding that difference in roles, I strive to always meet the rules of legal ethics. The Supreme Court of Texas in Misc. Docket No. 19-9016 requires as follows:
Because of the vital role of lawyers in the legal process, each lawyer should strive to become
References
and remain proficient and competent in the practice of law, including the benefits and risks
associated with relevant technology. To maintain the requisite knowledge and skill of a
competent practitioner, a lawyer should engage in continuing study and education. If a system of
peer review has been established, the lawyer should consider making use of it in appropriate
circumstances. Isolated instances of faulty conduct or decision should be identified for purposes
of additional study or instruction.
Supreme Court of Texas. (2019, February 26). Order amending comment to the Texas Disciplinary Rules of Professional Conduct [pdf]. Supreme Court of Texas. https://www.txcourts.gov/media/1443638/199016.pdf
Much has been written about what the lawyer must do in order to be in compliance with that requirement, which is beyond the scope of this article. Suffice it to say that ensuring data security is part of it.
