[CCWG-ACCT] Who is managing the lawyers and what have they beenasked to do?
Avri Doria
avri at acm.org
Mon Jul 6 23:33:23 UTC 2015
Hi,
I believe membership raises the issues of accountability to the full
diversity of stakeholders to a much higher threshold, including the
issue of the degree to which ICANN is accountable to stakeholders not
included among our SG/C/RALO/ALS / as well as among parrticpating CCs
and govts.
I think enough of the comments bring out questions of accountability in
a mebership organization to make the membership option less than optimal.
avri
On 06-Jul-15 19:05, Edward Morris wrote:
> +1. Well said.
>
>
> On Mon, Jul 6, 2015 at 9:04 PM, Jonathan Zuck <JZuck at actonline.org
> <mailto:JZuck at actonline.org>> wrote:
>
> Hmm. I think it’s important to bear in mind that there was
> overwhelming consensus among the public comments to support the
> membership model. The detractors from the model, while important
> and perhaps critical, are not in the majority. I’m not sure this
> process speaks to how we better use counsel as much as how we
> achieve consensus on principles.
>
>
>
>
>
>
> *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 *Seun Ojedeji
> *Sent:* Monday, July 6, 2015 3:50 PM
> *To:* Becky Burr
> *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?
>
>
>
> Hi Becky,
>
> Thanks for asking, item 3 is actually in connection to the fact
> that such veto may not be possible without item 1(as I understood
> it) and that is why I said an indirect veto can happen not that I
> was entirely suggesting that those powers be off the table.
>
> It seem however that folks are only looking at the powers and not
> at what it will take to have them.
>
> By the way, I also did put in a reservation that we may not
> necessarily agree with those views but my concern is mainly that
> the ccwg does not spend so much time developing proposals that we
> know has certain implementation requirements that are not
> compatible with the ICANN community structure. I think we should
> learn from the the past (based on comments from the last PC) and
> utilize legal council and volunteer hours more effectively.
>
> FWIW speaking as participant.
>
> Regards
>
> On 6 Jul 2015 8:08 pm, "Burr, Becky" <Becky.Burr at neustar.biz
> <mailto:Becky.Burr at neustar.biz>> wrote:
>
> Seun,
>
>
>
> I am not sure why we would take direct budget/strat plan veto
> off the table. Could you explain? Thanks.
>
>
>
> Becky
>
> J. Beckwith Burr
>
> *Neustar, Inc. /* Deputy General Counsel and Chief Privacy Officer
>
> 1775 Pennsylvania Avenue NW, Washington, DC 20006
>
> Office: + 1.202.533.2932 <tel:%2B%201.202.533.2932> Mobile:
> +1.202.352.6367
> <tel:%2B1.202.352.6367> / becky.burr at neustar.biz
> <mailto:becky.burr at neustar.biz> / www.neustar.biz
> <http://www.neustar.biz>
>
>
>
> *From: *Seun Ojedeji <seun.ojedeji at gmail.com
> <mailto:seun.ojedeji at gmail.com>>
> *Date: *Monday, July 6, 2015 at 11:09 AM
> *To: *Robin Gross <robin at ipjustice.org
> <mailto:robin at ipjustice.org>>
> *Cc: *Accountability Community
> <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?
>
>
>
> 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
> <https://urldefense.proofpoint.com/v2/url?u=https-3A__community.icann.org_pages_viewpage.action-3FpageId-3D53782602&d=AwMFaQ&c=MOptNlVtIETeDALC_lULrw&r=62cJFOifzm6X_GRlaq8Mo8TjDmrxdYahOP8WDDkMr4k&m=rX8zWSdUbF0XJ6RQyX5HABE7NaQIgAXHj6WfvEXkLh8&s=5REzt6Gk0Mt5evnhe_F8O87Kpc4hX8wql7vP--WYsnQ&e=>
> (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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