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

[Burr, Becky]

Eric, I have great respect for the ICANN legal staff, but I¹m not aware
that anyone on staff possesses legal expertise on international law and/or
California not-for-profit law.  More that that, we know that ICANN has
asserted various limitations on some of the accountability mechanisms
based on the ³fiduciary duty² of Board members to the corporation.
Whether the ideas in question are good or bad, there is some skepticism -
and a conclusion by the Berkman Center during the first ATRT review that
additional legal research was needed, about the legal positions asserted
by ICANN¹s legal staff and its outside counsel.  Given the above, and
ethical obligation of counsel to defend the views of its client
vigorously, I disagree with your view that ICANN¹s counsel is well
situated to provide the legal analysis we need.



 
J. Beckwith Burr
Neustar, Inc. / Deputy General Counsel and Chief Privacy Officer
1775 Pennsylvania Avenue NW, Washington, DC 20006
Office: + 1.202.533.2932  Mobile:  +1.202.352.6367  /
becky.burr at neustar.biz / www.neustar.biz






On 1/19/15, 7:28 PM, "Eric Brunner-Williams" <ebw at abenaki.wabanaki.net>
wrote:

>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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