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

[McAuley, David]

Eric, with respect, I disagree.

The entire subject of ensuring ICANN's post-transition accountability ought to be informed with independent legal advice.  It seems self-evident that staff cannot be independent when it comes to changes affecting ICANN. 

No one that I heard called into question the competence or ethics of ICANN legal staff - far from it, the ICANN legal staff appear to be at the highest step of professionalism, competence, and dedication to ICANN's mission.

But one of the paths suggested for the transition is to invigorate ICANN as a membership organization with members holding the final say in important decisions. We need to know if that is viable.

In 2010, a legal difference of opinion surfaced over California law for non-profit corporations that might prohibit ICANN's board from empowering any entity to overturn board decisions or actions. ICANN said it did - another legal opinion said that conclusion was mistaken. http://www.circleid.com/pdf/Memo_on_ATRT_Question_on_California_Corporate_Law_RSG.pdf

Both opinions cannot be correct, and it would be good to sort this out. 

ICANN may in future decide to incorporate in country X and before that happens it can take advice whether the laws of country X can accommodate ICANN's legal structure. For now, ICANN has always been (and remains) a California corporation and that is likely to continue through the transition process. It makes sense to sort out California law on this point.

David McAuley

-----Original Message-----
From: accountability-cross-community-bounces at icann.org [mailto:accountability-cross-community-bounces at icann.org] On Behalf Of Paul Rosenzweig
Sent: Monday, January 19, 2015 3:08 PM
To: 'Eric Brunner-Williams'; accountability-cross-community at icann.org
Subject: Re: [CCWG-Accountability] On legal advise concerning California non-profits

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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