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

Greg Shatan gregshatanipc at gmail.com
Mon Jul 6 13:25:06 UTC 2015


It did not disband.  It was disbanded.  I believe it was a decision of the


On Mon, Jul 6, 2015 at 9:21 AM, Carlos Raúl Gutiérrez <carlosraulg at gmail.com
> wrote:

> 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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