[CCWG-ACCT] Responses to questions from Jones Day

Tue Feb 10 02:37:55 UTC 2015

Avri is spot-on.

Short answer: there are ways to deal with this under US ethical rules
applicable to the practice of law.  We takes these rules seriously and they
provide a fairly clear path to follow, so that they "payor" doesn't
influence the advice in situations such as this.

Greg

On Tue, Feb 10, 2015 at 10:32 AM, Avri Doria <avri at acm.org> wrote:

>  Hi,
>
> I tend to agree if we are the customer and that is made clear, it does not
> matter who pays the bill.
>
> Just like when the state pays for my legal defender i expect them to serve
> my interests.
>
> avri
>
>
> On 10-Feb-15 09:42, Chris Disspain wrote:
>
> All,
>
>  I can feel a slippery slope ahead. Whoever pays ‘influences’? Surely
> not. Lawyers are perfectly capable of providing independent advice on law.
> Where there are several possibilities they are perfectly capable of laying
> them out. What you don’t want is rhetoric or too much advice. In other
> words you don’t want the lawyers to say you can do a) or b) but WE prefer
> a). A law firm will respond to the specific instructions they receive. They
> have an obligation to do so.
>
>  The danger is that anyone who doesn’t like the advice will claim it is
> skewed in favour of X or Y. If that's then case I suggest each group goes
> and gets its own advice and then we share notes.
>
>
>  Cheers,
>
>
>  Chris (a lawyer)
>
>  On 10 Feb 2015, at 12:27 , Roelof Meijer <Roelof.Meijer at sidn.nl> wrote:
>
>   I am not a suspicious guy and could live with ICANN paying the bill.
> However, due to the fact that we need the whole community to have trust in
> the expert (legal) advice we use as a working group, I am in favor of
> another solution than ICANN paying the bill.
>
>  Cheers,
>
>  Roelof
>
>   From: Jordan Carter <jordan at internetnz.net.nz>
> Date: dinsdag 10 februari 2015 09:20
> To: Kieren McCarthy <kieren at kierenmccarthy.com>
> Cc: Lisse Eberhard <directors at omadhina.net>, CCWG Accountability <
> accountability-cross-community at icann.org>
> Subject: Re: [CCWG-ACCT] Responses to questions from Jones Day
>
>   Kieran, all:
>
>  Do you think the payment issue outranks the fact that this CCWG's team
> doing legal will be the effective client? That is, do you think the CCWG
> can rely on advice that it briefs out and manages the relationships for,
> regardless of who ends up paying the bill?
>
>  I am not a lawyer but your last point seems important to me.
>
>  best,
> Jordan
>
> On 10 February 2015 at 02:25, Kieren McCarthy <kieren at kierenmccarthy.com>
> wrote:
>
>> I can't for the life of me understand why this group is prepared to
>> accept ICANN paying for external legal advice on a topic of the highest
>> possible interest to ICANN.
>>
>>  Considering the importance of this topic, I am pretty sure that the
>> various internet organizations who depend so heavily on ICANN would be
>> willing to pay into a fund to cover independent legal advice.
>>
>>  I also think it would be advisable for whoever is contracted to provide
>> this advice to be obligated to report any and all approaches and
>> conversations with third parties in order to limit the opportunity for
>> behind-the-scenes influencing.
>>
>>
>>
>>  Kieren
>>
>>
>> On Sun, Feb 8, 2015 at 1:14 AM, Phil Corwin <psc at vlaw-dc.com> wrote:
>>
>>> +1. ICANN has tripled its staff in 2.5 years. Surely it can provide the
>>> resources that this CCWG needs to retain independent legal advice.  Until
>>> it does this CCWG should be in a holding pattern and if that delays the
>>> transition so be it.
>>>
>>> Philip S. Corwin, Founding Principal
>>> Virtualaw LLC
>>> 1155 F Street, NW
>>> Suite 1050
>>> Washington, DC 20004
>>> 202-559-8597/Direct
>>> 202-559-8750/Fax
>>> 202-255-6172/Cell
>>>
>>> Twitter: @VLawDC
>>>
>>> "Luck is the residue of design" -- Branch Rickey
>>>
>>> Sent from my iPad
>>>
>>> > On Feb 8, 2015, at 5:08 PM, Matthew Shears <mshears at cdt.org> wrote:
>>> >
>>> >
>>> > Completely agree:
>>> >
>>> > I'd really like to see ICANN demonstrate it is as concerned with
>>> helping the CCWG secure our independent legal resources "in the most
>>> efficient and cost-effective manner" as it was in sharing its own views and
>>> positions.
>>> >
>>> >
>>> > Matthew
>>> >
>>> >
>>> >> On 2/8/2015 9:03 AM, Drazek, Keith wrote:
>>> >> Hi all,
>>> >>
>>> >> If everyone recognizes the Jones Day submission as input/advocacy
>>> from an interested party and not legal advice to the CCWG, and that it
>>> carries no greater weight than our yet-to-be-received independent advice, I
>>> have no idea what with ICANN putting its cards on the table.
>>> >> I'm
>>> >> Despite the appearance of an attempt to influence the discussion
>>> through first-mover advantage, this could help us identify early conflicts
>>> of opinion and identify where we need to focus our energies.
>>> >>
>>> >> That said, I'd really like to see ICANN demonstrate it is as
>>> concerned with helping the CCWG secure our independent legal resources "in
>>> the most efficient and cost-effective manner" as it was in sharing its own
>>> views and positions.
>>> >> I'm at a
>>> >> It appears there was more urgency for the latter.
>>> >> I'm
>>> >> Regards,
>>> >> Keith
>>> >>
>>> >> Sent from my iPhone
>>> >>
>>> >>> On Feb 8, 2015, at 4:25 PM, Edward Morris <egmorris1 at toast.net>
>>> wrote:
>>> >>>
>>> >>> One of the reasons many of us opposed inclusion of ICANN staff
>>> members as participants in the accountability and transition working
>>> groups, is that disagreement with staff positions  could prove problematic
>>> for those opposing ICANN positions. As a sitting member of the GNSO
>>> Council, elected by my community, I would suggest Samantha that you, as an
>>> ICANN staff member, are not tasked with determining what is and is not an
>>> acceptable opinion or post on this list.
>>> >>>
>>> >>> For the record, despite your assertion, I have not seen anyone
>>> declare the Jones Day opinion "incompetent". I certainly have not. I will,
>>> however, repeat my claim: it is a one sided document that uses legal
>>> opinion to support the known preferences of a interested party (ICANN). It
>>> is not a neutral opinion that we as community members can rely upon in
>>> making our decisions. I look forward to receiving one so I can discharge my
>>> responsibility in helping your employer, Samantha, meet it's obligations to
>>> the both community and to the N.T.I.A.
>>> >>>
>>> >>> Edward Morris
>>> >>>
>>> >>> Sent from my iPad
>>> >>>
>>> >>>> On Feb 8, 2015, at 7:40 AM, Samantha Eisner <
>>> Samantha.Eisner at icann.org> wrote:
>>> >>>>
>>> >>>> Kevin, a skilled attorney in California corporate structures as
>>> well as
>>> >>>> governance issues, provided these responses to the CCWG questions
>>> as a
>>> >>>> mode of giving input into the process.  Kevin has just arrived here
>>> in
>>> >>>> Singapore and will be available to discuss these answers; if
>>> modifications
>>> >>>> or clarifications are needed, they can be provided.  These
>>> responses, many
>>> >>>> of which provide a transparent view on advice or positions that
>>> ICANN has
>>> >>>> taken in the past on these issues, are being provided to help
>>> narrow and
>>> >>>> clarify the issues for which external advice may be sought.  From
>>> the
>>> >>>> ICANN side, we are very interested in making sure that the CCWG
>>> gets the
>>> >>>> input that it needs and in the most efficient and cost-effective
>>> manner;
>>> >>>> ICANN’s transparency on this issue will allow for other counsel to
>>> be able
>>> >>>> to provide advice in a  quicker, more timely manner.
>>> >>>>
>>> >>>> As we go down the legal advice path, each of us are likely to see
>>> answers
>>> >>>> that we may not agree with; while we do not have to accept
>>> positions with
>>> >>>> which we take issue, we do need to afford the appropriate respect
>>> to those
>>> >>>> providing responses.  Suggestions of “incompetence” are not
>>> acceptable.
>>> >>>>
>>> >>>>
>>> >>>>> On 2/8/15, 2:06 PM, "Edward Morris" <egmorris1 at toast.net> wrote:
>>> >>>>>
>>> >>>>> I agree Becky. This work product is pure advocacy that ignores
>>> >>>>> substantial portions of the statutes it claims to explain. It's
>>> actually
>>> >>>>> quite remarkable in that way.
>>> >>>>>
>>> >>>>> I only hope we are able to retain competent independent legal
>>> consultant
>>> >>>>> to guide us in this work. I would classify the Jones Day document
>>> as no
>>> >>>>> more than the representation of a  policy position of an
>>> interested party
>>> >>>>> drafted by an attorney , not as anything I'd consider valid legal
>>> advice.
>>> >>>>>
>>> >>>>> Sent from my iPad
>>> >>>>>
>>> >>>>>> On Feb 8, 2015, at 5:03 AM, Burr, Becky <Becky.Burr at neustar.biz>
>>> wrote:
>>> >>>>>>
>>> >>>>>> The questions and answers are interesting as advocacy but cannot
>>> be
>>> >>>>>> considered legal advice for our work
>>> >>>>>>
>>> >>>>>> Sent from my iPad
>>> >>>>>>
>>> >>>>>>> On Feb 8, 2015, at 12:19 PM, León Felipe Sánchez Ambía
>>> >>>>>>> <leonfelipe at sanchez.mx> wrote:
>>> >>>>>>>
>>> >>>>>>> Dear all,
>>> >>>>>>>
>>> >>>>>>> Answering your questions:
>>> >>>>>>>
>>> >>>>>>> Keith.- The questions were presented by the Co-Chairs at our
>>> Frankfut
>>> >>>>>>> meeting as a high-level first approach to what we should be
>>> focusing on
>>> >>>>>>> achieving. They were also discussed at the CCWG call of January
>>> 27.  We
>>> >>>>>>> then asked Staff to pass the questions through ICANN legal so
>>> they
>>> >>>>>>> referred this questions to Jones Day. The document are the
>>> responses
>>> >>>>>>> prepared by Kevin Espinola of Jones Day.  The goal was to get a
>>> very
>>> >>>>>>> rapid
>>> >>>>>>> response on some basic questions the group wanted answers on.
>>> >>>>>>>
>>> >>>>>>> Jordan.- I believe Adam has clarified where the questions came
>>> from and
>>> >>>>>>> how they got into Jones Day for response which is in line with
>>> what I
>>> >>>>>>> have
>>> >>>>>>> replied to Keith.
>>> >>>>>>>
>>> >>>>>>> Phil.- Nobody said this was the advice we are taking. Please see
>>> this
>>> >>>>>>> document as one more input document tat will feed our work, just
>>> as the
>>> >>>>>>> CWG legal document has fed it. This is NOT intended to be taken
>>> as the
>>> >>>>>>> legal advice we¹re looking for although in the end it might (or
>>> might
>>> >>>>>>> not)
>>> >>>>>>> be compatible with what we need.
>>> >>>>>>>
>>> >>>>>>> I hope this clarifies the doubts and concerns raised so far.
>>> >>>>>>>
>>> >>>>>>> Best regards,
>>> >>>>>>>
>>> >>>>>>>
>>> >>>>>>>
>>> >>>>>>> León
>>> >>>>>>>
>>> >>>>>>>> El 08/02/2015, a las 12:05, Dr Eberhard W Lisse <el at lisse.NA>
>>> >>>>>>>> escribió:
>>> >>>>>>>>
>>> >>>>>>>> Phil,
>>> >>>>>>>>
>>> >>>>>>>> opinions of dependent lawyers are as interesting as the ones of
>>> >>>>>>>> independent ones :-)-O
>>> >>>>>>>>
>>> >>>>>>>> el
>>> >>>>>>>>
>>> >>>>>>>>> On 2015-02-08 11:48 , Jordan Carter wrote:
>>> >>>>>>>>> Phil, yes - the CCWG agreed with that in Frankfurt. It was
>>> felt it
>>> >>>>>>>>> might
>>> >>>>>>>>> be helpful to understand the view of the company and its
>>> >>>>>>>>> representatives
>>> >>>>>>>>> as well as an independent view, if I recall correctly.
>>> >>>>>>>>> Jordan
>>> >>>>>>>>>
>>> >>>>>>>>> On 8 February 2015 at 11:36, Phil Corwin <psc at vlaw-dc.com
>>> >>>>>>>>> <mailto:psc at vlaw-dc.com>> wrote:
>>> >>>>>>>>>
>>> >>>>>>>>> Jones Day cannot be regarded as an objective and neutral
>>> source of
>>> >>>>>>>>> legal advice or opinions on anything related to ICANN. Indeed,
>>> any
>>> >>>>>>>>> statement made by Jones Day must be regarded as the views of
>>> ICANN,
>>> >>>>>>>>> its long-standing client.
>>> >>>>>>>>>
>>> >>>>>>>>> Sent from my BlackBerry 10 smartphone.
>>> >>>>>>>>>
>>> >>>>>>>>> Philip S. Corwin, Founding Principal
>>> >>>>>>>>> Virtualaw LLC
>>> >>>>>>>>> 1155 F Street, NW. Suite 1050
>>> >>>>>>>>> Washington, DC 20004
>>> >>>>>>>>> 202-559-8597/Direct
>>> >>>>>>>>> 202-559-8750/Fax
>>> >>>>>>>>> 202-255-6172/Cell
>>> >>>>>>>>> Twitter: @VLawDC
>>> >>>>>>>>>
>>> >>>>>>>>> "Luck is the residue of design" -- Branch Rickey
>>> >>>>>>>>> *From: *Drazek, Keith
>>> >>>>>>>>> *Sent: *Sunday, February 8, 2015 11:14 AM
>>> >>>>>>>>> *To: *León Felipe Sánchez Ambía
>>> >>>>>>>>> *Cc: *CCWG Accountability
>>> >>>>>>>>> *Subject: *Re: [CCWG-ACCT] Responses to questions from Jones
>>> Day
>>> >>>>>>>>>
>>> >>>>>>>>>
>>> >>>>>>>>> Leon,
>>> >>>>>>>>>
>>> >>>>>>>>> Do I understand you correctly that Jones Day developed both the
>>> >>>>>>>>> questions and the answers? Did the CCWG request this?
>>> >>>>>>>>>
>>> >>>>>>>>> Thanks,
>>> >>>>>>>>> Keith
>>> >>>>>>>>>
>>> >>>>>>>>> Sent from my iPhone
>>> >>>>>>>>>
>>> >>>>>>>>> On Feb 8, 2015, at 10:18 AM, León Felipe Sánchez Ambía
>>> >>>>>>>>> <leonfelipe at sanchez.mx <mailto:leonfelipe at sanchez.mx>> wrote:
>>> >>>>>>>>>
>>> >>>>>>>>>> Dear all,
>>> >>>>>>>>>>
>>> >>>>>>>>>> Please find attached the responses from Jones Day for
>>> questions
>>> >>>>>>>>>> prepared by Kevin Espinola. I would like to ask you to please
>>> >>>>>>>>>> review the document so we can further discuss it in our
>>> session
>>> >>>>>>>>>> tomorrow.
>>> >>>>>>>>>>
>>> >>>>>>>>>> I would also like to remind the group that this is a first
>>> step
>>> >>>>>>>>>> which runs parallel to what the legal sub-team is doing in
>>> >>>>>>>>>> coordination with the CWG “legal client”. The aim is to have
>>> this
>>> >>>>>>>>>> responses reviewed by the legal sub-team as well as by the
>>> larger
>>> >>>>>>>>>> CCWG so we can determine how to better validate this responses
>>> >>>>>>>>>> with the external legal advisors when we engage with said
>>> external
>>> >>>>>>>>>> advice.
>>> >>>>>>>>>>
>>> >>>>>>>>>> I look forward to a fruitful session with all of you.
>>> >>>>>>>>>>
>>> >>>>>>>>>> Best regards,
>>> >>>>>>>>>>
>>> >>>>>>>>>>
>>> >>>>>>>>>>
>>> >>>>>>>>>> León
>>> >>>>>>>>>>
>>> >>>>>>>>>>
>>> >>>>>>>>>> <Accountability Questions for CCWG - from Jones Day.pdf>
>>> >>>>>>>>> _______________________________________________
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>>> >>>>>>>>>
>>> >>>>>>>>>
>>> >>>>>>>>>
>>> >>>>>>>>> --
>>> >>>>>>>>> Jordan Carter
>>> >>>>>>>>>
>>> >>>>>>>>> Chief Executive
>>> >>>>>>>>> *InternetNZ*
>>> >>>>>>>>>
>>> >>>>>>>>> 04 495 2118 <04%20495%202118> (office) | +64 21 442 649
>>> <%2B64%2021%20442%20649> (mob)
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>
> Chief Executive
> *InternetNZ*
>
> 04 495 2118 (office) | +64 21 442 649 (mob)
> jordan at internetnz.net.nz
> Skype: jordancarter
>
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