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

James Gannon james at cyberinvasion.net
Mon Jul 6 09:07:54 UTC 2015

I listened to the last co-chairs lawyers’ call at; https://community.icann.org/pages/viewpage.action?pageId=53782602  (I’m a glutton for punishment)

It was a short call and I’ll make a particular note that Leon and Mathieu made a point of not making any decisions on behalf of the whole group and made it clear anything requiring a decision must be made by the overall CCWG, so I was happy with that side of things myself, most of my own fears about not having a sub-group are somewhat assuaged.
So my paraphrasing and overview is:

·         Lawyers working hard on the models for us collaboratively between the two firms since BA

·         Lawyers are prepping a presentation to give to us ASAP before Paris if possible, that presentation will take the majority of a call, it can’t be done quickly, they need about 45mins uninterrupted to go through the presentation and then would likely need Q&A time after they present.

·         Some small wording/clarifications to come back to the CCWG to make sure everyone’s on the same page

·         Everyone feels Paris will be an important time for the models, lawyers will be ready for a grilling on the details of the models from us to flesh out any of our concerns/questions

Note that the above is all my very condensed overview of the conversations.
It seemed like a productive call to me.


From: accountability-cross-community-bounces at icann.org [mailto:accountability-cross-community-bounces at icann.org] On Behalf Of Greg Shatan
Sent: Monday, July 06, 2015 5:33 AM
To: Carlos Raul
Cc: accountability-cross-community at icann.org
Subject: Re: [CCWG-ACCT] Who is managing the lawyers and what have they beenasked to do?


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<mailto: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<tel:%2B506%208837%207176>
Skype carlos.raulg
Apartado 1571-1000

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

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.


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


On 04 Jul 2015, at 08:41, Greg Shatan <gregshatanipc at gmail.com<mailto:gregshatanipc at gmail.com>> wrote:


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.


On Sat, Jul 4, 2015 at 1:13 AM, "Kleinwächter, Wolfgang" <wolfgang.kleinwaechter at medienkomm.uni-halle.de<mailto:wolfgang.kleinwaechter at medienkomm.uni-halle.de>> wrote:

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.


-----Ursprüngliche Nachricht-----
Von: accountability-cross-community-bounces at icann.org<mailto: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<mailto: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.

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