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

[Phil Corwin]

+1. We need wholly independent and expert legal advice. 

Philip S. Corwin, Founding Principal
Virtualaw LLC
1155 F Street, NW
Suite 1050
Washington, DC 20004
202-559-8597/Direct
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Twitter: @VLawDC

"Luck is the residue of design" -- Branch Rickey

Sent from my iPad

> On Jan 22, 2015, at 9:50 AM, Burr, Becky <Becky.Burr at neustar.biz> wrote:
> 
> 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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