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

Greg Shatan gregshatanipc at gmail.com
Mon Jul 6 04:32:34 UTC 2015


As the legal sub-team was disbanded, your guess is as good as mine.....


On Mon, Jul 6, 2015 at 12:27 AM, Carlos Raul <carlosraulg at gmail.com> wrote:

> 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>
> wrote:
>> 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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