[CCWG-ACCT] Legal Committee and WS2 budget - new proposal

Mon Jul 18 22:12:45 UTC 2016

I support Greg's analysis

On 19 Jul 2016 2:59 am, "Phil Corwin" <psc at vlaw-dc.com> wrote:

> I agree, and thank Greg for his analysis.
>
>
>
> In addition, while we should not be averse to asking questions of ICANN
> Legal (general Counsel staff) “where appropriate”, I believe that the
> multiple issues identified by Greg arising from a  request to ICANN
> External Counsel (Jones Day) mitigate against the CCWG directing questions
> to them unless and until those issues can be resolved with clarity in a
> wholly satisfactory manner.
>
>
>
> *Philip S. Corwin, Founding Principal*
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>
> *From:* accountability-cross-community-bounces at icann.org [mailto:
> accountability-cross-community-bounces at icann.org] *On Behalf Of *Robin
> Gross
> *Sent:* Monday, July 18, 2016 4:32 PM
> *To:* Greg Shatan
> *Cc:* ACCT-Staff; accountability-cross-community at icann.org
> *Subject:* Re: [CCWG-ACCT] Legal Committee and WS2 budget - new proposal
>
>
>
> I agree with Greg’s points below, which are critical to receiving the most
> effective representation.
>
>
>
> Thanks,
>
> Robin
>
>
>
> On Jul 18, 2016, at 12:25 PM, Greg Shatan <gregshatanipc at gmail.com> wrote:
>
>
>
> Mathieu,
>
>
>
> Generally, the proposal looks good.  I have the following comments:
>
>
>
> Slide 4:  *Monthly meetings* -- I think the legal committee will need to
> be more nimble and responsive than this.  Quarantining legal counsel
> requests may not work in many instances, where the work is needed at the
> time the question ripens within a subgroup.  We should either (a) have a
> process that moves forward without the need for a meeting, or (b) more
> frequent meetings (which will have the benefit of being shorter, since
> fewer items will be presented) (or both).
>
> *Tracking legal expenses* -- This is absolutely critical.  We had no
> transparency into expenses, except when the gross numbers were announced,
> which was way too late to  be meaningful to managing costs.  The legal
> committee must see the legal bills immediately when received by ICANN.  On
> a related note, it needs to be absolutely clear that the CCWG's budget for
> counsel does not include any spend for ICANN external counsel or any
> allocated costs for ICANN Legal (possibly excluding times when they are
> acting on an express request from CCWG).  Also, it would not be fair for
> any overall "legal budget" to be split between ICANN and the CCWG equally.
> ICANN has the benefit of having inside counsel, which is inherently more
> cost-effective (particularly on an allocated basis), while the CCWG only
> has external counsel.  (The idea of in-house counsel for the CCWG is
> interesting, but probably not worth discussing at this juncture....)
>
>
>
> Slide 6:  *ICANN Legal*: "The Committee is encouraged to use ICANN Legal
> as much as possible in order to manage costs effectively."  I would add
> "Where appropriate," to the beginning of this point.  Otherwise, it could
> be used to argue that there is a default to use  ICANN Legal, which has
> generally been rejected in this group.  This also does not account for the
> issues of attorney-client privilege and the attorney's duty of loyalty to
> their client, both of which apply to in-house counsel (see below).
>
> *ICANN External Counsel*: "Requests may be directed to Icann’s external
> Counsel, if the Committee finds it appropriate. In such case, before
> certifying the request, the Legal Committee will discuss with ICANN Legal
> how best to address attorney-client privilege issues."  I would like more
> clarity on what specific attorney-client privilege issues are being
> referenced here.  CCWG legal counsel has had essentially had to waive
> privilege on most advice, so that it can be seen and discussed in an open
> and transparent fashion.  On the other hand, advice given to ICANN by
> ICANN's external counsel has not been shared directly with the CCWG, on the
> grounds that that advice is subject to privilege in the relationship
> between attorney (outside counsel) and client (ICANN, Inc. -- not the
> CCWG).  As such, it seems that materials received from ICANN's outside
> counsel are either advice to ICANN, Inc. (and thus privileged and
> unavailable to the CCWG), legal assertions made to a non-client (and thus
> to be taken with a grain of salt), or advice given to the CCWG as its
> client (which client relationship does not yet exist, and which likely
> requires a conflict waiver before such client relationship can be
> initiated).  It should be noted that attorney-client privilege is just one
> aspect of a larger issue, which is the duty of loyalty (and other duties)
> by the attorney to their client.
>
>
>
> Greg
>
>
>
> On Mon, Jul 18, 2016 at 2:54 PM, Greg Shatan <gregshatanipc at gmail.com>
> wrote:
>
> I believe that the CCWG has already generally been informed when a
> question or issue has been referred to counsel -- at least by reference to
> the legal committee list, when decisions were made in that manner, and by
> statement of the Co-Chairs, when that was the approach.  I don't think
> there's a need for a "rationale" to be prepared each time.  This seems like
> "make-work," and/or a back-door attempt to introduce the "default" that has
> been broadly rejected.   In any event, the rationale should be self-evident
> from the question presented by the subgroup seeking legal advice.
>
>
>
> Greg
>
>
>
> On Mon, Jul 18, 2016 at 2:14 PM, Seun Ojedeji <seun.ojedeji at gmail.com>
> wrote:
>
> Hello Paul,
>
> That is fair enough, however if such decisions must be left to the
> committee to allow for efficiency, a proactive approach to notifying the
> CCWG needs to be put in place; such decisions should be documented with
> appropriate *rationale* as well.
>
> Regards
>
> Sent from my LG G4
> Kindly excuse brevity and typos
>
>
>
> On 18 Jul 2016 6:15 p.m., "Paul Rosenzweig" <
> paul.rosenzweig at redbranchconsulting.com> wrote:
>
> With respect, I disagree.  The question of whether or not to seek advice
> is a ministerial one that can and should be left to the good judgment of
> the co-chairs and the committee members.   As we have seen in the last few
> days, the broader CCWG can get overwhelmed with disagreement on relatively
> inconsequential matters of process when for the most part our thinking and
> time are best devoted to substantive questions that require analysis and
> resolution
>
>
>
> Cheers
>
> Paul
>
>
>
> Paul Rosenzweig
>
> paul.rosenzweig at redbranchconsulting.com
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>
> *From:* accountability-cross-community-bounces at icann.org [mailto:
> accountability-cross-community-bounces at icann.org] *On Behalf Of *Seun
> Ojedeji
> *Sent:* Monday, July 18, 2016 12:32 PM
> *To:* Mathieu Weill <mathieu.weill at afnic.fr>
> *Cc:* ACCT-Staff <acct-staff at icann.org>;
> accountability-cross-community at icann.org
> *Subject:* Re: [CCWG-ACCT] Legal Committee and WS2 budget - new proposal
>
>
>
> Hello Mathieu,
>
> The attached document indicated that decision will be handled based on
> case by case basis which is fine.
>
> However I think sub-bullet 1 of item 2 on page 6 is not explicit about
> decision making process. I like to suggest that when independent council is
> required, the legal committee should rather recommend (not decide on
> behalf) to the group as it should be the decision of the CCWG-ACT to make.
> Such recommendation should also include adequate rationale on why external
> council is preferred over ICANN legal staff.
>
> Regards
>
> Sent from my LG G4
> Kindly excuse brevity and typos
>
>
>
> On 18 Jul 2016 5:10 p.m., "Mathieu Weill" <mathieu.weill at afnic.fr> wrote:
>
> Dear Colleagues,
>
>
>
> Based on the feedback received during last week’s call, as well as on the
> robust discussion on the list, we are suggesting a revised approach for the
> Legal Committee :
>
> -          Composition based on previous Legal executive team
>
> -          Co-chairs remain budget owners, working with support from the
> PCST
>
> -          Legal committee may direct requests to external firms, on a
> case by case assessment taking into account costs, skills as well as
> potential requirement for “independent” advice.
>
>
>
> We believe this strikes a good balance between the need to manage costs
> efficiently and responsibly, and the ability for our group to request
> independent advice when needed.
>
>
>
> Depending on the feedbacks, we will report on our progress to the Board
> Finance Committee and SO/AC leaders during a call that has been arranged at
> the BFC’s request on Monday 25 July.
>
>
>
> Best regards,
>
> Mathieu Weill
>
> Co-chair
>
>
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