[CCWG-ACCT] Who is managing the lawyers and what have they beenasked to do?

Greg Shatan gregshatanipc at gmail.com
Sun Jul 5 22:02:13 UTC 2015


That was tried to some extent, at least in the CWG.

There are several substantial problems with that approach.

First, lawyers are not fungible.  The particular legal skills, background
and experience required for the issues before both WGs are fairly specific,
and in some cases, very specific.  The primary core competency needed here
is corporate governance.  While a number of lawyers in the community have a
reasonable working knowledge of the area, at least in their home
jurisdictions, I don't believe there are any who would say that this is
their primary focus and expertise -- at least none who identified
themselves to either WG.  The second core competency required, especially
in the CCWG, is non-profit law. Again there are a number of lawyers with a
decent working knowledge of this fairly broad field, but not as a primary
focus.  There may be a couple of lawyers in the community who would claim
this fairly broad field as a primary focus and expertise -- but none who
became involved with either WG.   This then becomes further narrowed by
jurisdiction.  Since ICANN is a California non-profit corporation, US
corporate governance and non-profit experience is more relevant than
experience from other jurisdictions, and California law corporate
governance and non-profit experience is more relevant than that from other
US jurisdictions.  In my experience, the more a US lawyer focuses on a
particular substantive area, the greater their knowledge of and comfort
with state law issues in US state jurisdictions other than their own (e.g.,
someone who spend a majority of their time working in corporate governance
will have a greater knowledge of the law, issues, approaches and trends
outside their primary state of practice, while someone who spends a
relatively small amount of time in the area will tend to feel less
comfortable outside their home jurisdiction).  (An exception is that many
US lawyers have specific knowledge of certain Delaware corporate law
issues, because Delaware often serves as the state of incorporation for
entities operating elsewhere.)

Second, lawyers in the community will seldom be seen as neutral advisors,
no matter how hard they try.  They will tend to be seen as working from
their point of view or stakeholder group or "special interest" or desired
outcome, even if they are trying to be even-handed.  Over the course of
time, this balancing act would tend to become more untenable.

Third, the amount of time it would take to provide truly definitive legal
advice (research, careful drafting, discussions with relevant "clients",
etc.) would be prohibitive, even compared to the substantial amount of time
it takes to provide reasonably well-informed and competent legal-based
viewpoints in the course of either WG's work.

Fourth, in order to formally counsel the community, the lawyer or lawyers
in question would have to enter into a formal attorney-client
relationship.  Under US law, an attorney-client relationship may
inadvertently be created by the attorney's actions, so attorneys try to be
careful about not providing formal legal advice without a formal engagement
(sometimes providing an explicit "caveat" if they feel they might be
getting too close to providing legal advice).  If the attorney is employed
by a corporation, they would likely be unable to take on such a
representation due to the terms of their employment, and that is before
getting to an exploration of conflict of interest issues.  If the attorney
is employed by a firm, the firm would have to sign off on the
representation, again dealing with potential conflict issues.

Fifth, even if the above issues were all somehow resolved, it would be
highly unlikely that any such attorney would provide substantial amounts of
advice, written memos, counseling, etc. on a pro bono (unpaid) basis,
especially given the time-consuming nature of the work.  Pro bono advice
and representation is generally accorded to individuals and entities that
could not otherwise be able to pay for it.  That is clearly not the case
here, at least with ICANN taking financial responsibility.  It would likely
be very difficult to justify this to, e.g., a firm's pro bono committee, as
a valid pro bono representation.

Sixth, if ICANN were not taking the role they are taking, it would be
extremely difficult to identify the "client" in this situation.  The
"community"  is a collection of sectors, mostly represented by various
ICANN-created structures, which in turn have members of widely varying
types (individuals, corporations, sovereigns, non-profits, IGOs,
partnerships, etc.).  This would also make it extremely difficult to enter
into a formal counseling relationship with the "community."

Seventh, this is a sensitive, high-profile, transformative set of actions
we are involved in, which is subject to an extraordinary amount of
scrutiny, not least that of the NTIA and the US Congress.  That eliminates
any possibility of providing informal, off-the-cuff, reasonably
well-informed but not quite expert, "non-advice" advice -- which might
happen in a more obscure exercise.  There's simply too much at stake.

Finally, I would say that a number of attorneys involved in one or both of
the WGs are in fact providing a significant amount of legal knowledge and
experience to the WGs, helping to frame issues, whether in terms of general
leadership (e.g., Thomas, Leon, Becky) or more specifically in a
"lawyer-as-client" capacity -- working with outside counsel, tackling the
more legalistic issues, providing as much legal background and knowledge as
possible without providing the type of formal legal advice that would tend
to create an attorney-client relationship, etc.  So I do think that many
lawyers in the community are giving greatly of themselves in this process,
even though they cannot and would not be able to formally be engaged by the
community as its "counsel of record."

In sum, it might be a nice thought in theory, but it is no way a practical


On Sat, Jul 4, 2015 at 3:08 AM, CW Lists <lists at christopherwilkinson.eu>

> Good morning:
> I had decided not to enter this debate. But I am bound to say that the
> thought had occurred to me at the time, that there were more than enough
> qualified lawyers in this community that they could perfectly well have
> counselled … themselves.
> CW
> On 04 Jul 2015, at 08:41, Greg Shatan <gregshatanipc at gmail.com> wrote:
> Wolfgang,
> To your first point, the billing rates were clearly stated in the law
> firms' engagement letters.
> To your second point, I'm sure we could all think of other projects and
> goals where the money could have been "better spent."  You've stated
> yours.  But that is not the proper test.  This was and continues to be
> money we need to spend to achieve the goals we have set.  Under different
> circumstances, perhaps it would be a different amount (or maybe none at
> all).  But it was strongly felt at the outset that the group needed to have
> independent counsel.  Clearly that counsel needed to have recognized
> expertise in the appropriate legal areas.  As such, I believe we made
> excellent choices and have been very well represented.
> As to your "better spent" test, I just had to have $4000.00 worth of
> emergency dental work done.  This money definitely could have been "better
> spent" on a nice vacation, redecorating our living room or on donations to
> my favored charitable causes.  But I had no choice, other than to choose
> which dentist and endodontist I went to, and I wasn't going to cut corners
> -- the dental work was a necessity.  Similarly, the legal work we are
> getting is a necessity and whether we would have preferred to spend the
> money elsewhere is not merely irrelevant, it is an incorrect and
> inappropriate proposition.  Many of us are investing vast quantities of
> time that could be "better spent" elsewhere as well, but we are willing
> (grudgingly sometimes) to spend the time it takes to get it right, because
> we believe it needs to be done.  This is the appropriate measure, whether
> it comes to our time or counsels' time.  If we believe in this project, we
> have to invest in it, and do what it takes to succeed.
> Of course, this investment has to be managed wisely and cost-effectively,
> and by and large, I believe the CCWG has done that reasonably well -- not
> perfectly, but reasonably well and with "course corrections" along the way
> intended to improve that management.  It's certainly fair to ask, as Robin
> has done, for a better understanding of that management as we go along.
> But asserting that the money could have been "better spent" elsewhere sets
> up a false test that we should not use to evaluate this important aspect of
> our work.  Instead, we need to focus on whether the money was "well spent"
> on these critical legal services. If you have reason to believe it was not,
> that could be useful to know.  That would at least be the right discussion
> to have.
> Greg
> On Sat, Jul 4, 2015 at 1:13 AM, "Kleinwächter, Wolfgang" <
> wolfgang.kleinwaechter at medienkomm.uni-halle.de> wrote:
>> HI,
>> and please if you ask outside lawyers, ask for the price tag in advance.
>> Some of the money spend fo lawyers could have been spend better to suppport
>> and enable Internet user and non-commercial groups in developing countries.
>> Wolfgang
>> -----Ursprüngliche Nachricht-----
>> Von: accountability-cross-community-bounces at icann.org im Auftrag von
>> Robin Gross
>> Gesendet: Fr 03.07.2015 14:57
>> An: accountability-cross-community at icann.org Community
>> Betreff: [CCWG-ACCT] Who is managing the lawyers and what have they
>> beenasked to do?
>> After the legal sub-team was disbanded, I haven't been able to follow
>> what communications are happening with CCWG and the independent lawyers we
>> retained.
>> I understand the lawyers are currently "working on the various models"
>> and will present something to us regarding that work soon.  However, *what
>> exactly* have the lawyers been asked to do and *who* asked them?   If there
>> are written instructions, may the group please see them?  Who is now taking
>> on the role of managing the outside attorneys for this group, including
>> providing instructions and certifying legal work?
>> Sorry, but I'm really trying to understand what is happening, and there
>> doesn't seem to be much information in the public on this (or if there is,
>> I can't find it).  Thanks for any information anyone can provide.
>> Best,
>> Robin
>> _______________________________________________
>> Accountability-Cross-Community mailing list
>> Accountability-Cross-Community at icann.org
>> https://mm.icann.org/mailman/listinfo/accountability-cross-community
> _______________________________________________
> Accountability-Cross-Community mailing list
> Accountability-Cross-Community at icann.org
> https://mm.icann.org/mailman/listinfo/accountability-cross-community
-------------- next part --------------
An HTML attachment was scrubbed...
URL: <http://mm.icann.org/pipermail/accountability-cross-community/attachments/20150705/dc19addb/attachment.html>

More information about the Accountability-Cross-Community mailing list