[CCWG-ACCT] Who is managing the lawyers and what have they beenasked to do?
Carlos Raúl Gutiérrez
carlosraulg at gmail.com
Mon Jul 6 13:22:20 UTC 2015
This is very helpful James.
Thank you.
Carlos Raúl Gutiérrez
+506 8837 7176
Skype: carlos.raulg
On 6 Jul 2015, at 11:07, 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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