<div dir="ltr"><div class="gmail_default" style="font-family:verdana,sans-serif">Carlos,</div><div class="gmail_default" style="font-family:verdana,sans-serif"><br></div><div class="gmail_default" style="font-family:verdana,sans-serif">It did not disband. It was disbanded. I believe it was a decision of the co-chairs.</div><div class="gmail_default" style="font-family:verdana,sans-serif"><br></div><div class="gmail_default" style="font-family:verdana,sans-serif">Greg</div></div><div class="gmail_extra"><br><div class="gmail_quote">On Mon, Jul 6, 2015 at 9:21 AM, Carlos Raúl Gutiérrez <span dir="ltr"><<a href="mailto:carlosraulg@gmail.com" target="_blank">carlosraulg@gmail.com</a>></span> wrote:<br><blockquote class="gmail_quote" style="margin:0 0 0 .8ex;border-left:1px #ccc solid;padding-left:1ex">Why did they disband…..?<span class=""><br>
<br>
Carlos Raúl Gutiérrez<br>
<a href="tel:%2B506%208837%207176" value="+50688377176" target="_blank">+506 8837 7176</a><br>
Skype: carlos.raulg<br></span><span class="">
On 6 Jul 2015, at 6:32, Greg Shatan wrote:<br>
<br>
</span><blockquote class="gmail_quote" style="margin:0 0 0 .8ex;border-left:1px #ccc solid;padding-left:1ex"><span class="">
Carlos,<br>
<br>
As the legal sub-team was disbanded, your guess is as good as mine.....<br>
<br>
Greg<br>
<br>
On Mon, Jul 6, 2015 at 12:27 AM, Carlos Raul <<a href="mailto:carlosraulg@gmail.com" target="_blank">carlosraulg@gmail.com</a>> wrote:<br>
<br>
</span><blockquote class="gmail_quote" style="margin:0 0 0 .8ex;border-left:1px #ccc solid;padding-left:1ex"><span class="">
Thank you Greg!<br>
<br>
It makes a lot of sense and I guess those are all good reasons as we hired<br>
them in the first place. What are the next steps now? What happened in the<br>
recent call?<br>
<br>
Best regards<br>
<br>
<br></span>
*Carlos Raúl Gutiérrez*<span class=""><br>
<a href="tel:%2B506%208837%207176" value="+50688377176" target="_blank">+506 8837 7176</a><br>
Skype carlos.raulg<br>
_________<br>
Apartado 1571-1000<br></span>
*COSTA RICA*<div><div class="h5"><br>
<br>
<br>
On Mon, Jul 6, 2015 at 12:02 AM, Greg Shatan <<a href="mailto:gregshatanipc@gmail.com" target="_blank">gregshatanipc@gmail.com</a>><br>
wrote:<br>
<br>
<blockquote class="gmail_quote" style="margin:0 0 0 .8ex;border-left:1px #ccc solid;padding-left:1ex">
Chris,<br>
<br>
That was tried to some extent, at least in the CWG.<br>
<br>
There are several substantial problems with that approach.<br>
<br>
First, lawyers are not fungible. The particular legal skills, background<br>
and experience required for the issues before both WGs are fairly specific,<br>
and in some cases, very specific. The primary core competency needed here<br>
is corporate governance. While a number of lawyers in the community have a<br>
reasonable working knowledge of the area, at least in their home<br>
jurisdictions, I don't believe there are any who would say that this is<br>
their primary focus and expertise -- at least none who identified<br>
themselves to either WG. The second core competency required, especially<br>
in the CCWG, is non-profit law. Again there are a number of lawyers with a<br>
decent working knowledge of this fairly broad field, but not as a primary<br>
focus. There may be a couple of lawyers in the community who would claim<br>
this fairly broad field as a primary focus and expertise -- but none who<br>
became involved with either WG. This then becomes further narrowed by<br>
jurisdiction. Since ICANN is a California non-profit corporation, US<br>
corporate governance and non-profit experience is more relevant than<br>
experience from other jurisdictions, and California law corporate<br>
governance and non-profit experience is more relevant than that from other<br>
US jurisdictions. In my experience, the more a US lawyer focuses on a<br>
particular substantive area, the greater their knowledge of and comfort<br>
with state law issues in US state jurisdictions other than their own (e.g.,<br>
someone who spend a majority of their time working in corporate governance<br>
will have a greater knowledge of the law, issues, approaches and trends<br>
outside their primary state of practice, while someone who spends a<br>
relatively small amount of time in the area will tend to feel less<br>
comfortable outside their home jurisdiction). (An exception is that many<br>
US lawyers have specific knowledge of certain Delaware corporate law<br>
issues, because Delaware often serves as the state of incorporation for<br>
entities operating elsewhere.)<br>
<br>
Second, lawyers in the community will seldom be seen as neutral advisors,<br>
no matter how hard they try. They will tend to be seen as working from<br>
their point of view or stakeholder group or "special interest" or desired<br>
outcome, even if they are trying to be even-handed. Over the course of<br>
time, this balancing act would tend to become more untenable.<br>
<br>
Third, the amount of time it would take to provide truly definitive legal<br>
advice (research, careful drafting, discussions with relevant "clients",<br>
etc.) would be prohibitive, even compared to the substantial amount of time<br>
it takes to provide reasonably well-informed and competent legal-based<br>
viewpoints in the course of either WG's work.<br>
<br>
Fourth, in order to formally counsel the community, the lawyer or lawyers<br>
in question would have to enter into a formal attorney-client<br>
relationship. Under US law, an attorney-client relationship may<br>
inadvertently be created by the attorney's actions, so attorneys try to be<br>
careful about not providing formal legal advice without a formal engagement<br>
(sometimes providing an explicit "caveat" if they feel they might be<br>
getting too close to providing legal advice). If the attorney is employed<br>
by a corporation, they would likely be unable to take on such a<br>
representation due to the terms of their employment, and that is before<br>
getting to an exploration of conflict of interest issues. If the attorney<br>
is employed by a firm, the firm would have to sign off on the<br>
representation, again dealing with potential conflict issues.<br>
<br>
Fifth, even if the above issues were all somehow resolved, it would be<br>
highly unlikely that any such attorney would provide substantial amounts of<br>
advice, written memos, counseling, etc. on a pro bono (unpaid) basis,<br>
especially given the time-consuming nature of the work. Pro bono advice<br>
and representation is generally accorded to individuals and entities that<br>
could not otherwise be able to pay for it. That is clearly not the case<br>
here, at least with ICANN taking financial responsibility. It would likely<br>
be very difficult to justify this to, e.g., a firm's pro bono committee, as<br>
a valid pro bono representation.<br>
<br>
Sixth, if ICANN were not taking the role they are taking, it would be<br>
extremely difficult to identify the "client" in this situation. The<br>
"community" is a collection of sectors, mostly represented by various<br>
ICANN-created structures, which in turn have members of widely varying<br>
types (individuals, corporations, sovereigns, non-profits, IGOs,<br>
partnerships, etc.). This would also make it extremely difficult to enter<br>
into a formal counseling relationship with the "community."<br>
<br>
Seventh, this is a sensitive, high-profile, transformative set of actions<br>
we are involved in, which is subject to an extraordinary amount of<br>
scrutiny, not least that of the NTIA and the US Congress. That eliminates<br>
any possibility of providing informal, off-the-cuff, reasonably<br>
well-informed but not quite expert, "non-advice" advice -- which might<br>
happen in a more obscure exercise. There's simply too much at stake.<br>
<br>
Finally, I would say that a number of attorneys involved in one or both<br>
of the WGs are in fact providing a significant amount of legal knowledge<br>
and experience to the WGs, helping to frame issues, whether in terms of<br>
general leadership (e.g., Thomas, Leon, Becky) or more specifically in a<br>
"lawyer-as-client" capacity -- working with outside counsel, tackling the<br>
more legalistic issues, providing as much legal background and knowledge as<br>
possible without providing the type of formal legal advice that would tend<br>
to create an attorney-client relationship, etc. So I do think that many<br>
lawyers in the community are giving greatly of themselves in this process,<br>
even though they cannot and would not be able to formally be engaged by the<br>
community as its "counsel of record."<br>
<br>
In sum, it might be a nice thought in theory, but it is no way a<br>
practical possibility.<br>
<br>
Greg<br>
<br>
On Sat, Jul 4, 2015 at 3:08 AM, CW Lists <<a href="mailto:lists@christopherwilkinson.eu" target="_blank">lists@christopherwilkinson.eu</a>><br>
wrote:<br>
<br>
<blockquote class="gmail_quote" style="margin:0 0 0 .8ex;border-left:1px #ccc solid;padding-left:1ex">
Good morning:<br>
<br>
I had decided not to enter this debate. But I am bound to say that the<br>
thought had occurred to me at the time, that there were more than enough<br>
qualified lawyers in this community that they could perfectly well have<br>
counselled … themselves.<br>
<br>
CW<br>
<br>
On 04 Jul 2015, at 08:41, Greg Shatan <<a href="mailto:gregshatanipc@gmail.com" target="_blank">gregshatanipc@gmail.com</a>> wrote:<br>
<br>
Wolfgang,<br>
<br>
To your first point, the billing rates were clearly stated in the law<br>
firms' engagement letters.<br>
<br>
To your second point, I'm sure we could all think of other projects and<br>
goals where the money could have been "better spent." You've stated<br>
yours. But that is not the proper test. This was and continues to be<br>
money we need to spend to achieve the goals we have set. Under different<br>
circumstances, perhaps it would be a different amount (or maybe none at<br>
all). But it was strongly felt at the outset that the group needed to have<br>
independent counsel. Clearly that counsel needed to have recognized<br>
expertise in the appropriate legal areas. As such, I believe we made<br>
excellent choices and have been very well represented.<br>
<br>
As to your "better spent" test, I just had to have $4000.00 worth of<br>
emergency dental work done. This money definitely could have been "better<br>
spent" on a nice vacation, redecorating our living room or on donations to<br>
my favored charitable causes. But I had no choice, other than to choose<br>
which dentist and endodontist I went to, and I wasn't going to cut corners<br>
-- the dental work was a necessity. Similarly, the legal work we are<br>
getting is a necessity and whether we would have preferred to spend the<br>
money elsewhere is not merely irrelevant, it is an incorrect and<br>
inappropriate proposition. Many of us are investing vast quantities of<br>
time that could be "better spent" elsewhere as well, but we are willing<br>
(grudgingly sometimes) to spend the time it takes to get it right, because<br>
we believe it needs to be done. This is the appropriate measure, whether<br>
it comes to our time or counsels' time. If we believe in this project, we<br>
have to invest in it, and do what it takes to succeed.<br>
<br>
Of course, this investment has to be managed wisely and<br>
cost-effectively, and by and large, I believe the CCWG has done that<br>
reasonably well -- not perfectly, but reasonably well and with "course<br>
corrections" along the way intended to improve that management. It's<br>
certainly fair to ask, as Robin has done, for a better understanding of<br>
that management as we go along. But asserting that the money could have<br>
been "better spent" elsewhere sets up a false test that we should not use<br>
to evaluate this important aspect of our work. Instead, we need to focus<br>
on whether the money was "well spent" on these critical legal services. If<br>
you have reason to believe it was not, that could be useful to know. That<br>
would at least be the right discussion to have.<br>
<br>
Greg<br>
<br>
On Sat, Jul 4, 2015 at 1:13 AM, "Kleinwächter, Wolfgang" <<br>
<a href="mailto:wolfgang.kleinwaechter@medienkomm.uni-halle.de" target="_blank">wolfgang.kleinwaechter@medienkomm.uni-halle.de</a>> wrote:<br>
<br>
<blockquote class="gmail_quote" style="margin:0 0 0 .8ex;border-left:1px #ccc solid;padding-left:1ex">
HI,<br>
<br>
and please if you ask outside lawyers, ask for the price tag in<br>
advance. Some of the money spend fo lawyers could have been spend better to<br>
suppport and enable Internet user and non-commercial groups in developing<br>
countries.<br>
<br>
<br>
Wolfgang<br>
<br>
<br>
<br>
<br>
<br>
-----Ursprüngliche Nachricht-----<br>
Von: <a href="mailto:accountability-cross-community-bounces@icann.org" target="_blank">accountability-cross-community-bounces@icann.org</a> im Auftrag von<br>
Robin Gross<br>
Gesendet: Fr 03.07.2015 14:57<br>
An: <a href="mailto:accountability-cross-community@icann.org" target="_blank">accountability-cross-community@icann.org</a> Community<br>
Betreff: [CCWG-ACCT] Who is managing the lawyers and what have they<br>
beenasked to do?<br>
<br>
After the legal sub-team was disbanded, I haven't been able to follow<br>
what communications are happening with CCWG and the independent lawyers we<br>
retained.<br>
<br>
I understand the lawyers are currently "working on the various models"<br>
and will present something to us regarding that work soon. However, *what<br>
exactly* have the lawyers been asked to do and *who* asked them? If there<br>
are written instructions, may the group please see them? Who is now taking<br>
on the role of managing the outside attorneys for this group, including<br>
providing instructions and certifying legal work?<br>
<br>
Sorry, but I'm really trying to understand what is happening, and there<br>
doesn't seem to be much information in the public on this (or if there is,<br>
I can't find it). Thanks for any information anyone can provide.<br>
<br>
Best,<br>
Robin<br>
<br>
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