[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
> 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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