[CCWG-ACCT] responding to Eric's questions

[Eric Brunner-Williams]

Becky,

Thank you.

Let's assume "they" are Jones Day, in their capacity as external 
counsel, and also assume "ICANN will have to pay them", and the question 
on which advice is sought is whether, as organized, or under some 
reorganization scenario, an "oversight" function may be exercised over 
the Board, without change to the incorporation status (Cal. Non-profit & 
IRS 501(c)(3)).

The Board already has, as someone pointed out, referring to a 1pp note, 
tasked legal staff to provide an answer to the question.

The proposal to retain "they", for a reasonable fee paid by ICANN, to 
produce a responsive memo to a question for which the Board has chosen 
to be informed by its in-house counsel, _is_ a proposal to conduct that 
very oversight (an action taken in the absence of, or contrary to, some 
act by the Board, here not electing to refer the question to external 
counsel) upon which an opinion is sought -- not by the Board, but by 
(assuming a process outcome) this WG, or some members of this WG.

This WG, like any WG, may recommend actions, but taking the step to 
conduct an action of oversight, to determine if oversight may exist 
without reference beyond California's non-profit incorporation language 
and case law, is that very oversight.

Third-party money, fine. An unsolicited memo thrown over the transom, 
fine. Persuade the Board to direct the Executive, fine. On any question 
not previously considered, or not known to be under present, or planned 
consideration, by the Board, fine. But oversight by an inferior organ 
(us) to determine if oversight of a superior organ (Board) is possible 
-- a question previously considered by the Board -- answers the 
hypothetical with the actual. It crosses a Rubicon.

In an aside to Greg and the word "adequate", my thought when selecting 
that word was that an opinion which prevailed when tested at the 
appellate level, in California, where issues of law are considered, in 
California, would be adequate.

I'm not entirely happy with personalizing a question, and at some point 
the process for resolving differences of views among those concerned -- 
this or any other -- must be referenced.

Again, thanks to Becky, Greg, and others who've provided thoughtful, 
considered, and differing views on this issue.

Eric Brunner-Williams
Eugene, Oregon

On 1/22/15 9:58 AM, Burr, Becky wrote:
> Responding to Eric’s question re independent counsel, my responses are 
> in *blue*.
>
> If one of the "free, soon, adequate" requirements can be waived, 
> theneven 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 don’t think ICANN staff is adequate, for the reasons described 
> below.  Even if someone at Jones Day could be, ICANN will have to pay 
> them, which knocks out that requirement./
>
> 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.
>
> /This is one reason that I think we need to go outside.  ICANN Legal 
> has asserted that the Board members have a fiduciary duty to the 
> _corporation_, and that duty precludes them from agreeing to a binding 
> dispute resolution mechanism. I have never heard them say that they 
> have a duty under California law to the public trust, or suggest that 
> such a duty trumps any obligation is may have to serve as the steward 
> of a public interest. /
>
> 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.
>
> /Not sure I understand your point here/
>
> 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.
>
> /The statement I referenced is actually in the Berkman ATRT1 
> Recommendations: 
> //https://www.icann.org/en/system/files/files/proposed-recommendations-20oct10-en.pdf. 
> The following is from page 46:/
>
> In the course of broad consultations, ATRT received feedback to the 
> effect that ICANN could enter into agreements with parties that called 
> for binding arbitration without running afoul of California law. While 
> this latitude could apply in a contractual context*, it is less clear 
> and deserves further legal analysis as to what extent and through what 
> mechanisms ICANN could agree to enter into binding arbitration more 
> generally*.
>
> 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?
>
> /I was actually thinking of the ethical obligations of ICANN staff 
> attorneys and outside counsel.  Given that ICANN has asserted that the 
> Board’s fiduciary duty under California law prohibits the board from 
> ceding authority to a binding dispute resolution procedure in this 
> context, we already know that they have taken a position that is 
> contrary to the community’s desire.  Given that, as well as the 
> Berkman Center’s conclusion that this issue deserved further legal 
> analysis, I don’t know how we could consider the staff/outside counsel 
> to be unconflicted in this situation. (For the record, I am not sure 
> that binding authority is absolutely necessary – depends on what other 
> tools are available, e.g., spilling the Board.  Based on the what I 
> heard in Frankfurt, however, the community sees this as an important 
> tool for accountability.)/
>
> Thank you for your kind note, and on the International Law issue, 
> which to me seems excessively speculative, I share your remark.
>
>
>
>
>
> 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 <mailto:becky.burr at neustar.biz> / www.neustar.biz
>
>
>
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