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

Fri Jan 23 06:12:48 UTC 2015

Dear Seun,

One of the outcomes of our Frankfurt meeting was the creation of the legal advice sub-group which will do exactly what you are suggesting with regards to the document built by the CWG. Our intention is not to reinvent the wheel and see what we can take from that document and what might be missing from this CCWG's perspective in order for us to scope our questions in relation with the requirements identified as another outcome of our F2F meeting.

Kind regards,

León

Enviado desde mi iPhone

> El 22/01/2015, a las 23:52, Seun Ojedeji <seun.ojedeji at gmail.com> escribió:
> 
> sent from Google nexus 4
> kindly excuse brevity and typos.
> On 23 Jan 2015 06:28, "Kieren McCarthy" <kierenmccarthy at gmail.com> wrote:
> >
> >
> > Can we all stop wasting time writing long treatises agreeing with one another and get to the nub of this issue: who will pay for the advice; who is the lawyer or firm to approach; and how do we boil down the excessively long query document to something manageable?
> >
> +1 to the 3 questions above which I will say has asked and answered/acted upon within CWG. Inview of this, I will add a 4th question; can the ccwg have a look at CWG questions to see if theirs is already covered and if not, whether it can be included.
> 
> We don't need to reinvent the wheel of this legal process delaying the process unnecessarily. However if ccwg still prefers to do it's thing independently then please let's answer the 3 questions raise by Kieren.
> 
> Regards
> > Kieren
> >
> > -
> > [sent through phone]
> >
> >
> > On Thu, Jan 22, 2015 at 9:00 PM, Drazek, Keith <kdrazek at verisign.com> wrote:
> >>
> >> +1 Robin
> >>
> >> On Jan 22, 2015, at 8:41 PM, "Robin Gross" <robin at ipjustice.org> wrote:
> >>
> >>> As a California attorney who has set up a number of California nonprofit corporations over the last decades and who understands the fiduciary relationship owed by an attorney to the corporation she represents and by a board member to the corporation it oversees, I can say we must have external legal advice to avoid both actual conflict of interest, but also to preclude the dismissal of the advice because of claims of conflict of interest.   This matter is so legally complex that we need very specialized legal expertise - not something a general council's office is best suited for as they work on a broad range of issues for one specific client.  That is why ICANN legal dept often utilizes the services of outside council to provide specific highly specialized legal expertise to the legal dept. on particular issues.  So I agree with Becky, Eberhard, Phil, Paul, David, and Avri for all of these reasons.
> >>>
> >>> Thanks,
> >>> Robin
> >>>
> >>> On Jan 22, 2015, at 9:46 AM, Avri Doria wrote:
> >>>
> >>>> Hi,
> >>>>
> >>>> Additionally, borrowing from a another professional field: whenever contemplating surgery, get a second opinion.
> >>>>
> >>>> avri
> >>>>
> >>>> On 22-Jan-15 12:00, Greg Shatan wrote:
> >>>>>
> >>>>> I agree with Becky, Eberhard, Phil, Paul and David, for all their reasons and more.  If ICANN legal had all the expertise necessary, it would be a bad idea, due to lack of independence, ethical obligations to their client, etc.  And even if they are reasonably well-informed on California non-profit law, that is necessary but not sufficient for the task at hand.  Someone with considerable expertise and experience in corporate governance (especially non-profit) and corporate structuring in a variety of contexts (a "big brain," so to speak) is also necessary.
> >>>>>
> >>>>> (Notably, when ICANN has needed significant advice in this area in the past, it is my impression that they have turned to the international mega firm of Jones Day (the biggest thing to come out of Cleveland, Ohio since  
> >>>>>
> >>>>>
> >>>>> Greg Shatan
> >>>>>
> >>>>> Gregory S. Shatan 
> >>>>>
> >>>>> Partner | Abelman Frayne & Schwab
> >>>>>
> >>>>>
> >>>>> 666 Third Avenue | New York, NY 10017-5621
> >>>>>
> >>>>> Direct  212-885-9253 | Main 212-949-9022
> >>>>>
> >>>>> Fax  212-949-9190 | Cell 917-816-6428
> >>>>>
> >>>>> gsshatan at lawabel.com
> >>>>>
> >>>>> ICANN-related: gregshatanipc at gmail.com 
> >>>>>
> >>>>> www.lawabel.com
> >>>>>
> >>>>>
> >>>>> On Thu, Jan 22, 2015 at 9:59 AM, Dr Eberhard Lisse <el at lisse.na> wrote:
> >>>>>>
> >>>>>> Eric,
> >>>>>>
> >>>>>> I was not looking at it from that perspective, but Becky make sense,
> >>>>>> ie if we get an opinion that is contrary to what ICANN has
> >>>>>> previously asserted in court it would put ICANN in a difficult
> >>>>>> position.
> >>>>>>
> >>>>>> Almost as much as their Counsel estopping ICANN on anything not yet
> >>>>>> litigated.
> >>>>>>
> >>>>>>
> >>>>>> So, we need "unconflicted" Counsel.
> >>>>>>
> >>>>>> el
> >>>>>>
> >>>>>> On 2015-01-22 16:49, 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
> >>>>>>
> >>>>>> [...]
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