[CCWG-ACCT] Who is managing the lawyers and what have they beenasked to do?
Avri Doria
avri at acm.org
Mon Jul 6 12:19:09 UTC 2015
Hi,
I have not had a chance to get back to the recording of the call. Not
sure I will, that time was the time I had for that call and that is why
i was listening then.
In any case, the lawyers were talking about a new model they had come up
with, but not knowing what to do about it since they had not been asked
for a new model.
I was told to leave before I got to hear the end of that story. Or about
the model itself. Anyone who has had a chance to listen, whatever happened?
avri
ps. sometimes i think the lawyers are getting interested in what we are
doing, almost like stakeholders. not that i expect them to give up their
hourly rates because they are stakeholders.
On 06-Jul-15 05:07, James Gannon wrote:
>
> 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.
>
>
>
> -James
>
>
>
>
>
> *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?
>
>
>
> Carlos,
>
>
>
> As the legal sub-team was disbanded, your guess is as good as mine.....
>
>
>
> Greg
>
>
>
> 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
>
> *COSTA RICA*
>
>
>
>
>
> On Mon, Jul 6, 2015 at 12:02 AM, Greg Shatan
> <gregshatanipc at gmail.com <mailto: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
> <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.
>
>
>
> CW
>
>
>
> On 04 Jul 2015, at 08:41, Greg Shatan
> <gregshatanipc at gmail.com <mailto: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
> <mailto: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
> <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.
>
> Best,
> Robin
>
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