[CCWG-ACCT] Who is managing the lawyers and what have they beenasked to do?
Paul Rosenzweig
paul.rosenzweig at redbranchconsulting.com
Mon Jul 6 15:53:41 UTC 2015
In particular, I think a direct community veto of budget and strategic plan remains essential to accountability … without it there is no control of the executive
Paul
Paul Rosenzweig
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From: James Gannon [mailto:james at cyberinvasion.net]
Sent: Monday, July 6, 2015 11:42 AM
To: Greg Shatan; Seun Ojedeji
Cc: accountability-cross-community at icann.org Community
Subject: Re: [CCWG-ACCT] Who is managing the lawyers and what have they beenasked to do?
I would agree with Greg, while I support some of them they shouldn’t be agreed as overall principals as we go forward.
The model proposers and legal counsel are working to our core community powers in an evolving manner as we work, I think we are all intelligent enough to work in that iterative fashion without having to setup common hard set boundaries and the associated negotiation that would come along with trying to define those.
-James
From: accountability-cross-community-bounces at icann.org <mailto: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 4:28 PM
To: Seun Ojedeji
Cc: accountability-cross-community at icann.org <mailto:accountability-cross-community at icann.org> Community
Subject: Re: [CCWG-ACCT] Who is managing the lawyers and what have they beenasked to do?
I do not share any of those "understandings" or "basic principles". Those may be the opinions of some, but they are by no means the understandings of the CCWG. I would reject these as basic principles.
Greg
On Mon, Jul 6, 2015 at 11:09 AM, Seun Ojedeji <seun.ojedeji at gmail.com <mailto:seun.ojedeji at gmail.com> > wrote:
Hi,
I have no problem with having a new proposal presented. However it is important that there some adherence to basic principles on proposals that the ccwg would not want to explore. Three areas comes to mind:
- Its my understanding that anything that will turn some/all of the SO/AC to members and thereby exposing them to legal challenge is not acceptable
- Its my understanding that anything that allows removal of individual board member without the approval of the entire(or larger part) of the community is not acceptable
- Its my understanding that a solution that allows direct community veto on certain elements like budget, strategic plan et all is not acceptable but an indirect enforcement could be considered (i.e using a power to get another power executed indirectly)
Some/none of the above may be acceptable by us, but my point is that there should be some focus going forward, especially if the target of ICANN54 is to be meet
Regards
On Mon, Jul 6, 2015 at 3:37 PM, Robin Gross <robin at ipjustice.org <mailto:robin at ipjustice.org> > wrote:
I would also like to hear what they propose at this stage. I really don't see how it could hurt to have another proposal to consider. Larry Strickling did say he wanted us to be sure we examined all the options carefully.
Thanks,
Robin
On Jul 6, 2015, at 7:32 AM, Greg Shatan wrote:
I agree. We should have the benefit of their thoughts.
Greg
On Mon, Jul 6, 2015 at 9:38 AM, Jordan Carter <jordan at internetnz.net.nz <mailto:jordan at internetnz.net.nz> > wrote:
Well, I would really really like to see what the creative thinking they have done has suggested. I trust our ability as a group to make decisions, and do not believe we should cut off input from any direction...
Jordan
On 7 July 2015 at 01:13, James Gannon <james at cyberinvasion.net <mailto:james at cyberinvasion.net> > wrote:
Hey Avri,
Yes the 3rd model was brought up, and the lawyers feel that it might be a cleaner way for us to get the powers that we need.
But without a call from the CCWG to present it they feel that its not their position to propose a model on their own initiative.
Personally i would like to see what they have come up with but the CCWG would need to ask as an overall group for the chairs to direct them to give some more information on the model if we wanted it.
I think if after we hear from them on Tuesdays call we still feel we might have some shortcomings that it might be the time to ask them about the 3rd option.
Also +1 I think they are really enjoying the work and are finding themselves getting more and more involved as we go on, which is great for the CCWG as the more background and details they know the better that are able to give us solid well reasoned advice in my opinion.
-James
On 6 Jul 2015, at 13:19, Avri Doria <avri at acm.org <mailto:avri at acm.org> > wrote:
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>
[mailto: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 <mailto: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>
<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> <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> <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>
<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> <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>
<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>
<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>
<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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