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

Carlos Raúl Gutiérrez carlosraulg at gmail.com
Mon Jul 6 13:21:37 UTC 2015

Why did they disband…..?

Carlos Raúl Gutiérrez
+506 8837 7176
Skype: carlos.raulg
On 6 Jul 2015, at 6:32, Greg Shatan wrote:

> 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> 
> 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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