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

[Eric Brunner-Williams]

Becky,

If one of the "free, soon, adequate" requirements can be waived, then 
even I don't have my view, but the legal staff do meet those criteria, 
and their client is the corporation, which is capable of reorganization, 
a subject of interest for the purposes of exploring the "member" and 
"oversight" sets of issues.

I'm glad you mention fiduciary duty as there are no shareholders, rather 
stewards of the public trust exercising reasonable care, inquisitive ... 
the strictest standard of duty of care in American law. As many members 
of the community having a material interest in unique endpoint 
identifiers are employed by for-profit entities with shareholders, the 
same meaning may not be conveyed when we use the same phrase.

Would you do me the kindness (at some point in the proximal future, it 
isn't urgent) of providing a URL to the conclusion, and perhaps the 
supporting analysis, of the Berkman Center during the first ATRT review? 
I'm interested in which legal positions by the Corporation's legal staff 
they found in need of additional research.

Again, were we constituted externally by some other corporate entity, 
then retaining our legal counsel rather than relying upon the legal 
counsel of the subject of our inquiry, concerning its reorganization, 
would be necessary for the reason you mention -- the ethical duty of 
counsel towards its clients -- but we -- the CCWG-whatever -- are not, 
and staff -- all of staff, from IT to Legal, as resources allocated by 
the executive, are available to us.  Absent a refusal to allocate or a 
demonstration of incompetence, why shouldn't we expect an adequate work 
product from staff counsel?

Thank you for your kind note, and on the International Law issue, which 
to me seems excessively speculative, I share your remark.

Eric Brunner-Williams
Eugene, Oregon

On 1/22/15 6:49 AM, Burr, Becky 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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