[CCWG-Accountability] On legal advise concerning California non-profits

[Paul Rosenzweig]

I had understood, perhaps mistakenly, that ICANN legal staff did not have
expertise in California non-profit law.   That they are lawyers and members
of the California bar would not, in my view, be sufficient -- any more than
going to a heart surgeon would help cure cancer.   Both are doctors .... It
is =not= distrust at all, but rather a recognition that specialization is a
reality of law.  OTOH, if a member of ICANN staff has such knowledge then so
much the better .....

Paul

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-----Original Message-----
From: Eric Brunner-Williams [mailto:ebw at abenaki.wabanaki.net] 
Sent: Monday, January 19, 2015 1:28 PM
To: 'accountability-cross-community at icann.org'
Subject: [CCWG-Accountability] On legal advise concerning California
non-profits

Colleagues,

During the last hour of today's call there was discussion of the subject of
experts, and the lack of an expert in international law identified as a
deficit. In the chat a concern was expressed, not for the first time, that
an expert in California non-profit law was also needed.

I share the view that expert advice on issues relating to converting the
Corporation from "no members" to "members", and similar questions, is a
pressing need, if this, or any similar question, is to be undertaken by
this, or a similar Working Group, e.g., the CWG. That I don't think the
membership form feasible is another matter, and my experience in the
original Membership Implementation Task Force is just that -- we didn't
succeed and we didn't try everything and what we got (eventually) was "At
Large" as an Advisory Committee.

What I don't share is the view that the advice _must_ come from a source
other than the Corporation's legal staff.

The Corporation's legal staff have the subject matter expertise --
California's incorporation language and case law, and are bound by the
ethics and professional responsibilities requirements of the California Bar
Association.

If the "member" question is worth considering, and if time is pressing, as
we lack a basis to know that the Corporation's legal staff does not have
subject matter expertise, nor does Corporation legal staff have an
identified conflict of interest with ... an activity or activities it has
called into existence -- the CCWG and/or CWG, no an ethics violation, why
are we deferring the "member" and similar questions at all?

It is one thing for scenarios submitted to the WS4 stream to have (many)
hypotheticals of incompetence, conflict or malfeasance, it is quite another
to conduct ourselves as if the hypothetical is a fact pattern in the
present.

The Corporation's legal staff are already paid, a defect that apparently
makes finding sources of International Law expertise challenging, and from
JJ to Dan to Sam to ... known to many of us, and known for many years.
Absent very clear statements to the contrary, we should be able to proceed
and determin whether the "member" suggestion has sufficient value to be
worth implementation consideration.

Eric Brunner-Williams
Eugene, Oregon
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