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

Carlos Raul carlosraulg at gmail.com
Mon Jul 6 04:27:06 UTC 2015

Thank you Greg!

It makes a lot of sense and I guess those are all good reasons as we hired
them in the first place. What are the next steps now? What happened in the
recent call?

Best regards

*Carlos Raúl Gutiérrez*
+506 8837 7176
Skype carlos.raulg
Apartado 1571-1000

On Mon, Jul 6, 2015 at 12:02 AM, Greg Shatan <gregshatanipc at gmail.com>

> Chris,
> 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
> possibility.
> Greg
> On Sat, Jul 4, 2015 at 3:08 AM, CW Lists <lists at christopherwilkinson.eu>
> wrote:
>> 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
>>> _______________________________________________
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>>> Accountability-Cross-Community at icann.org
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