[CCWG-ACCT] Who is managing the lawyers and what have they beenasked to do?
Edward Morris
egmorris1 at toast.net
Tue Jul 7 12:23:58 UTC 2015
Hi Avri,
Thank you very much for your comprehensive response. It's very helpful. I
need to think about it and evaluate things before responding.
Again, thanks for making the effort so I better understand your views and
can challenge my own.
Ed
On Tue, Jul 7, 2015 at 12:52 PM, Avri Doria <avri at acm.org> wrote:
> Hi,
>
> To start, I believe that facts are just things that people believe to
> be the case. I try not to speak of anything stronger that a belief.
> Both my personal history and world history, even history of science -
> that bastion of fact, shows me that yesterday's Fact is often just a
> matter of prejudice, superstition and point of view.
>
> In terms of the accountability problem with the membership model, it has
> been discussed before. Fairly extensively. Some of the gaps such as
> those exposed by the UA have been eliminated, but others have not. Some
> involve the degree to which the various SOAC are really the solid
> organizations we portray. As I wrote in an earlier message where i
> spoke of the SOAC themselves:
> > Having been a member or observer of many of these entities I have fond
> > that they are often disorganized, ruled by a few strong personalities in
> > a sea of apathy, and given to making up rules on the fly when needed.
> > They do not even necessarily follow the rules they have agreed to in the
> > charters, though some do, not all of them. And for the most part, though
> > they are supposed to transparent, most aren't.
>
> Are these structures really fit of unchecked rule? How can we show that?
>
> For me the primary deficit is the loss of checks and balances.
>
> The current system relies on a set of checks and balances between the
> Board and the rest of the community. The current problem is that the
> power of the rest of the community seem too weak to many, allowing the
> Board to seemingly work without any checks on its activities.
>
> By strengthening the community in the designator model, we strengthen
> the set of checks and balance between the Board and the rest of the
> community. By doing so, we increase accountability.
>
> There is a reciprocity in this notion of accountability, one that does
> not require external oversight. We vote them in, can appeal the board
> in a serious manner and will even be able to vote them out by some yet
> to be determined procedure. And the Board, can review the degree to
> which the stakeholder groups are fulfilling their mandate to represent
> the larger community within the ICANN mission. In a sense there is
> mutual reciprocal oversight. The Board and the rest of the community
> check each other and establish a functional balance. Most of the this
> CCWG's activities are working on the details of these check and balances.
>
> That is other than the grand reorganization of ICANN into a membership
> organization. Something that leaves the current check and balances
> behind and attempts to create a major new structure.
>
> In the designator model the Board can make decisions and we can appeal
> them. And we make recommendations and give advise the Board needs to
> give it serious consideration on penalty of appeal. In extreme case they
> can be removed from their duties and we can be subjected to discussions
> of reorganization.
>
> Going to the membership model eliminates this balance by giving the
> putative community representatives supreme power. How can that power be
> appealed? Can membership decisions be appealed, by whom and to whom?
> Who determines whether the ACSO are adequately representing the global
> community and living up to their obligations under the bylaws?
> Membership turns the Board into an administrative unit without
> sufficient power to act as a check or balance to the ACSOs.
>
> Eliminating any checks and balances on the ACSO from the accountability
> equation seems to be a critical failure to me in the creation of a new
> accountability regime. Perhaps if we were going with the individual
> membership option a degree of accountability to global members could be
> argued, not sure. But I believe that is not what we are working on as
> that would involve even greater difficulty to get right. We are not even
> working on a model where organizations that exist on their own come
> together to form a group. Our ACSO are artificial organizations created
> by and within ICANN. Our multistakeholder model depends on the
> interaction and interplay of these organization with the Board and on
> the checks and balances between them.
>
> Perhaps you have 'fact based' responses to all the possible
> accountability questions that NTIA might ask us about this new power
> structure you favor. I do not believe that you can show how the ACSO
> will be responsible to the global Internet community. I do not believe
> you can show how a rogue set of ACSO can be stopped from doing things
> that harm the organizations or the Internet without allowing the Board
> some degree of decision making based on the confluence of
> recommendations and advice received from the various ACSO and the
> greater community.
>
> As was stated in the call by NTIA, it was up to us to show how anything
> new we created could be held accountable. As far as I can tell in
> membership there is no way to hold the members accountable. In the
> designator model we show how we are adding accountability measures. In
> the membership model we require the ACSO to verify their own
> representativity, but I have seen no expression of how they can do that
> or show that it is the case. When I speak of having a "much higher
> threshold" in proving ACSO accountabilty to the global public interest,
> this is what I mean. How are you going to prove, as you say - with the
> facts that you believe in, that the membership model is more accountable
> given its unassailable postion in a membership organization.
>
> I have seen no evidence of membership creating greater accountability to
> the global public interest. I cannot state that I believe it is
> impossible for it to do so, just that I have seen no evidence of it.
>
> avri
>
>
> On 06-Jul-15 21:01, Edward Morris wrote:
> > Hello Avri,
> >
> >
> > 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.
> >
> >
> >
> > Please, if possible, raise your concerns stating fact rather than
> > belief. Maybe there is something I have missed. There is absolutely no
> > difference in the openness to non ICANN stakeholders between the
> > empowered membership and empowered designator models. At least I don't
> > see any. Both are based upon the current SOAC's. If there is a
> > difference in this area I need to and want to be educated. Please
> > respond with specific and detailed instances or examples of why what
> > you claim is true is. Vague generalities are not particularly helpful.
> > Again, I am open to be educated and persuaded but with substantive
> > fact rather than vague as yet unsubstantiated beliefs.
> >
> > No model is as open to non SOAC's as is Malcolm's proposal for
> > individual membership. That, again, is a membership model. Do you
> > support this open membership model and if not why not? Would you
> > prefer other models to be looked at that are not based upon the
> > SOAC's? I think that would be a very reasonable position and one I
> > certainly am open to supporting if a workable model would be proposed.
> > As yet I have not seen one. Have you? Should we try to find one?
> >
> >
> >
> > I think enough of the comments bring out questions of
> > accountability in
> > a mebership organization to make the membership option less than
> > optimal.
> >
> >
> >
> > What comments are you referring to? Certainly not the public comments
> > which were basically supportive of membership. Are these comments you
> > refer to based upon vague generalities or specific problems? If there
> > are specific problems what specifically are they? Should we not
> > determine whether there are solutions to those problems rather than
> > just dismissing the model outright? If not, what are your views as to
> > the ultimate apparent unenforceability of the designator model in
> > certain areas? Do you disagree with Paul Rosenzweig when he states
> > that "a direct community veto of budget and strategic plan remains
> > essential to accountability"? If not, what do you propose to do in
> > these areas without membership. Should we simply forget them?
> >
> > I do think there may be another option or two out there and hopefully
> > working with our counsel we'll find them.
> >
> > In the interim, I really am looking to be educated. No one has taught
> > me more about ICANN since I became involved in it than you Avri. I'm
> > just not easily persuadable by vague opinions, I'm a fact based sort
> > of guy. As this process has moved forward I've seen your views and
> > positions change. To me, that is an admirable sign of someone truly
> > looking for an optimal answer rather than one who is clinging to a
> > defined position. I'm just having some trouble understanding,
> > factually, the specific objections you are now raising about
> > membership. I hope you can help me understand so I can better test and
> > evaluate my own views..
> >
> > Thanks,
> >
> > Ed
> >
> >
> >
> > 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>
> > > <mailto: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>>
> > > [mailto: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>
> > > <mailto: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>
> > > <mailto: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>
> > <tel:%2B%201.202.533.2932> Mobile:
> > > +1.202.352.6367 <tel:%2B1.202.352.6367>
> > > <tel:%2B1.202.352.6367> / becky.burr at neustar.biz
> > <mailto:becky.burr at neustar.biz>
> > > <mailto:becky.burr at neustar.biz
> > <mailto:becky.burr at neustar.biz>> / www.neustar.biz
> > <http://www.neustar.biz>
> > > <http://www.neustar.biz>
> > >
> > >
> > >
> > > *From: *Seun Ojedeji <seun.ojedeji at gmail.com
> > <mailto:seun.ojedeji at gmail.com>
> > > <mailto: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>
> > > <mailto: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>
> > > <mailto: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>
> > <mailto: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>
> > > <mailto: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>
> > > <mailto: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>
> > <mailto: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>>
> > >
> > [mailto: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>
> > >
> > <mailto: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
> > <mailto: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>
> > > <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
> > <mailto: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
> > <mailto: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
> > <mailto: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
> > <mailto: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
> > <mailto: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
> > <mailto: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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> > > --
> > >
> > > Jordan Carter
> > >
> > > Chief Executive
> > > *InternetNZ*
> > >
> > > 04 495 2118 (office) | +64 21 442 649
> > > <tel:%2B64%2021%20442%20649> (mob)
> > > jordan at internetnz.net.nz
> > <mailto:jordan at internetnz.net.nz>
> > > <mailto:jordan at internetnz.net.nz
> > <mailto:jordan at internetnz.net.nz>>
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> ------------------------------------------------------------------------
> > >
> > > /Seun Ojedeji,
> > > Federal University Oye-Ekiti
> > > web: //http://www.fuoye.edu.ng
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> > <
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> > > //Mobile: +2348035233535 <tel:%2B2348035233535>//
> > > //alt email:seun.ojedeji at fuoye.edu.ng
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> > > The key to understanding is humility - my view !
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