[CCWG-ACCT] Who is managing the lawyers and what have they beenasked to do?
Carlos Raúl Gutiérrez
carlosraulg at gmail.com
Mon Jul 6 13:21:37 UTC 2015
Why did they disband…..?
Carlos Raúl Gutiérrez
+506 8837 7176
Skype: carlos.raulg
On 6 Jul 2015, at 6:32, Greg Shatan wrote:
> Carlos,
>
> As the legal sub-team was disbanded, your guess is as good as
> mine.....
>
> Greg
>
> On Mon, Jul 6, 2015 at 12:27 AM, Carlos Raul <carlosraulg at gmail.com>
> wrote:
>
>> Thank you Greg!
>>
>> It makes a lot of sense and I guess those are all good reasons as we
>> hired
>> them in the first place. What are the next steps now? What happened
>> in the
>> recent call?
>>
>> Best regards
>>
>>
>> *Carlos Raúl Gutiérrez*
>> +506 8837 7176
>> Skype carlos.raulg
>> _________
>> Apartado 1571-1000
>> *COSTA RICA*
>>
>>
>> On Mon, Jul 6, 2015 at 12:02 AM, Greg Shatan
>> <gregshatanipc at gmail.com>
>> wrote:
>>
>>> Chris,
>>>
>>> That was tried to some extent, at least in the CWG.
>>>
>>> There are several substantial problems with that approach.
>>>
>>> First, lawyers are not fungible. The particular legal skills,
>>> background
>>> and experience required for the issues before both WGs are fairly
>>> specific,
>>> and in some cases, very specific. The primary core competency
>>> needed here
>>> is corporate governance. While a number of lawyers in the community
>>> have a
>>> reasonable working knowledge of the area, at least in their home
>>> jurisdictions, I don't believe there are any who would say that this
>>> is
>>> their primary focus and expertise -- at least none who identified
>>> themselves to either WG. The second core competency required,
>>> especially
>>> in the CCWG, is non-profit law. Again there are a number of lawyers
>>> with a
>>> decent working knowledge of this fairly broad field, but not as a
>>> primary
>>> focus. There may be a couple of lawyers in the community who would
>>> claim
>>> this fairly broad field as a primary focus and expertise -- but none
>>> who
>>> became involved with either WG. This then becomes further narrowed
>>> by
>>> jurisdiction. Since ICANN is a California non-profit corporation,
>>> US
>>> corporate governance and non-profit experience is more relevant than
>>> experience from other jurisdictions, and California law corporate
>>> governance and non-profit experience is more relevant than that from
>>> other
>>> US jurisdictions. In my experience, the more a US lawyer focuses on
>>> a
>>> particular substantive area, the greater their knowledge of and
>>> comfort
>>> with state law issues in US state jurisdictions other than their own
>>> (e.g.,
>>> someone who spend a majority of their time working in corporate
>>> governance
>>> will have a greater knowledge of the law, issues, approaches and
>>> trends
>>> outside their primary state of practice, while someone who spends a
>>> relatively small amount of time in the area will tend to feel less
>>> comfortable outside their home jurisdiction). (An exception is that
>>> many
>>> US lawyers have specific knowledge of certain Delaware corporate law
>>> issues, because Delaware often serves as the state of incorporation
>>> for
>>> entities operating elsewhere.)
>>>
>>> Second, lawyers in the community will seldom be seen as neutral
>>> advisors,
>>> no matter how hard they try. They will tend to be seen as working
>>> from
>>> their point of view or stakeholder group or "special interest" or
>>> desired
>>> outcome, even if they are trying to be even-handed. Over the course
>>> of
>>> time, this balancing act would tend to become more untenable.
>>>
>>> Third, the amount of time it would take to provide truly definitive
>>> legal
>>> advice (research, careful drafting, discussions with relevant
>>> "clients",
>>> etc.) would be prohibitive, even compared to the substantial amount
>>> of time
>>> it takes to provide reasonably well-informed and competent
>>> legal-based
>>> viewpoints in the course of either WG's work.
>>>
>>> Fourth, in order to formally counsel the community, the lawyer or
>>> lawyers
>>> in question would have to enter into a formal attorney-client
>>> relationship. Under US law, an attorney-client relationship may
>>> inadvertently be created by the attorney's actions, so attorneys try
>>> to be
>>> careful about not providing formal legal advice without a formal
>>> engagement
>>> (sometimes providing an explicit "caveat" if they feel they might be
>>> getting too close to providing legal advice). If the attorney is
>>> employed
>>> by a corporation, they would likely be unable to take on such a
>>> representation due to the terms of their employment, and that is
>>> before
>>> getting to an exploration of conflict of interest issues. If the
>>> attorney
>>> is employed by a firm, the firm would have to sign off on the
>>> representation, again dealing with potential conflict issues.
>>>
>>> Fifth, even if the above issues were all somehow resolved, it would
>>> be
>>> highly unlikely that any such attorney would provide substantial
>>> amounts of
>>> advice, written memos, counseling, etc. on a pro bono (unpaid)
>>> basis,
>>> especially given the time-consuming nature of the work. Pro bono
>>> advice
>>> and representation is generally accorded to individuals and entities
>>> that
>>> could not otherwise be able to pay for it. That is clearly not the
>>> case
>>> here, at least with ICANN taking financial responsibility. It would
>>> likely
>>> be very difficult to justify this to, e.g., a firm's pro bono
>>> committee, as
>>> a valid pro bono representation.
>>>
>>> Sixth, if ICANN were not taking the role they are taking, it would
>>> be
>>> extremely difficult to identify the "client" in this situation. The
>>> "community" is a collection of sectors, mostly represented by
>>> various
>>> ICANN-created structures, which in turn have members of widely
>>> varying
>>> types (individuals, corporations, sovereigns, non-profits, IGOs,
>>> partnerships, etc.). This would also make it extremely difficult to
>>> enter
>>> into a formal counseling relationship with the "community."
>>>
>>> Seventh, this is a sensitive, high-profile, transformative set of
>>> actions
>>> we are involved in, which is subject to an extraordinary amount of
>>> scrutiny, not least that of the NTIA and the US Congress. That
>>> eliminates
>>> any possibility of providing informal, off-the-cuff, reasonably
>>> well-informed but not quite expert, "non-advice" advice -- which
>>> might
>>> happen in a more obscure exercise. There's simply too much at
>>> stake.
>>>
>>> Finally, I would say that a number of attorneys involved in one or
>>> both
>>> of the WGs are in fact providing a significant amount of legal
>>> knowledge
>>> and experience to the WGs, helping to frame issues, whether in terms
>>> of
>>> general leadership (e.g., Thomas, Leon, Becky) or more specifically
>>> in a
>>> "lawyer-as-client" capacity -- working with outside counsel,
>>> tackling the
>>> more legalistic issues, providing as much legal background and
>>> knowledge as
>>> possible without providing the type of formal legal advice that
>>> would tend
>>> to create an attorney-client relationship, etc. So I do think that
>>> many
>>> lawyers in the community are giving greatly of themselves in this
>>> process,
>>> even though they cannot and would not be able to formally be engaged
>>> by the
>>> community as its "counsel of record."
>>>
>>> In sum, it might be a nice thought in theory, but it is no way a
>>> practical possibility.
>>>
>>> Greg
>>>
>>> On Sat, Jul 4, 2015 at 3:08 AM, CW Lists
>>> <lists at christopherwilkinson.eu>
>>> wrote:
>>>
>>>> Good morning:
>>>>
>>>> I had decided not to enter this debate. But I am bound to say that
>>>> the
>>>> thought had occurred to me at the time, that there were more than
>>>> enough
>>>> qualified lawyers in this community that they could perfectly well
>>>> have
>>>> counselled … themselves.
>>>>
>>>> CW
>>>>
>>>> On 04 Jul 2015, at 08:41, Greg Shatan <gregshatanipc at gmail.com>
>>>> wrote:
>>>>
>>>> Wolfgang,
>>>>
>>>> To your first point, the billing rates were clearly stated in the
>>>> law
>>>> firms' engagement letters.
>>>>
>>>> To your second point, I'm sure we could all think of other projects
>>>> and
>>>> goals where the money could have been "better spent." You've
>>>> stated
>>>> yours. But that is not the proper test. This was and continues to
>>>> be
>>>> money we need to spend to achieve the goals we have set. Under
>>>> different
>>>> circumstances, perhaps it would be a different amount (or maybe
>>>> none at
>>>> all). But it was strongly felt at the outset that the group needed
>>>> to have
>>>> independent counsel. Clearly that counsel needed to have
>>>> recognized
>>>> expertise in the appropriate legal areas. As such, I believe we
>>>> made
>>>> excellent choices and have been very well represented.
>>>>
>>>> As to your "better spent" test, I just had to have $4000.00 worth
>>>> of
>>>> emergency dental work done. This money definitely could have been
>>>> "better
>>>> spent" on a nice vacation, redecorating our living room or on
>>>> donations to
>>>> my favored charitable causes. But I had no choice, other than to
>>>> choose
>>>> which dentist and endodontist I went to, and I wasn't going to cut
>>>> corners
>>>> -- the dental work was a necessity. Similarly, the legal work we
>>>> are
>>>> getting is a necessity and whether we would have preferred to spend
>>>> the
>>>> money elsewhere is not merely irrelevant, it is an incorrect and
>>>> inappropriate proposition. Many of us are investing vast
>>>> quantities of
>>>> time that could be "better spent" elsewhere as well, but we are
>>>> willing
>>>> (grudgingly sometimes) to spend the time it takes to get it right,
>>>> because
>>>> we believe it needs to be done. This is the appropriate measure,
>>>> whether
>>>> it comes to our time or counsels' time. If we believe in this
>>>> project, we
>>>> have to invest in it, and do what it takes to succeed.
>>>>
>>>> Of course, this investment has to be managed wisely and
>>>> cost-effectively, and by and large, I believe the CCWG has done
>>>> that
>>>> reasonably well -- not perfectly, but reasonably well and with
>>>> "course
>>>> corrections" along the way intended to improve that management.
>>>> It's
>>>> certainly fair to ask, as Robin has done, for a better
>>>> understanding of
>>>> that management as we go along. But asserting that the money could
>>>> have
>>>> been "better spent" elsewhere sets up a false test that we should
>>>> not use
>>>> to evaluate this important aspect of our work. Instead, we need to
>>>> focus
>>>> on whether the money was "well spent" on these critical legal
>>>> services. If
>>>> you have reason to believe it was not, that could be useful to
>>>> know. That
>>>> would at least be the right discussion to have.
>>>>
>>>> Greg
>>>>
>>>> On Sat, Jul 4, 2015 at 1:13 AM, "Kleinwächter, Wolfgang" <
>>>> wolfgang.kleinwaechter at medienkomm.uni-halle.de> wrote:
>>>>
>>>>> HI,
>>>>>
>>>>> and please if you ask outside lawyers, ask for the price tag in
>>>>> advance. Some of the money spend fo lawyers could have been spend
>>>>> better to
>>>>> suppport and enable Internet user and non-commercial groups in
>>>>> developing
>>>>> countries.
>>>>>
>>>>>
>>>>> Wolfgang
>>>>>
>>>>>
>>>>>
>>>>>
>>>>>
>>>>> -----Ursprüngliche Nachricht-----
>>>>> Von: accountability-cross-community-bounces at icann.org im Auftrag
>>>>> von
>>>>> Robin Gross
>>>>> Gesendet: Fr 03.07.2015 14:57
>>>>> An: accountability-cross-community at icann.org Community
>>>>> Betreff: [CCWG-ACCT] Who is managing the lawyers and what have
>>>>> they
>>>>> beenasked to do?
>>>>>
>>>>> After the legal sub-team was disbanded, I haven't been able to
>>>>> follow
>>>>> what communications are happening with CCWG and the independent
>>>>> lawyers we
>>>>> retained.
>>>>>
>>>>> I understand the lawyers are currently "working on the various
>>>>> models"
>>>>> and will present something to us regarding that work soon.
>>>>> However, *what
>>>>> exactly* have the lawyers been asked to do and *who* asked them?
>>>>> If there
>>>>> are written instructions, may the group please see them? Who is
>>>>> now taking
>>>>> on the role of managing the outside attorneys for this group,
>>>>> including
>>>>> providing instructions and certifying legal work?
>>>>>
>>>>> Sorry, but I'm really trying to understand what is happening, and
>>>>> there
>>>>> doesn't seem to be much information in the public on this (or if
>>>>> there is,
>>>>> I can't find it). Thanks for any information anyone can provide.
>>>>>
>>>>> Best,
>>>>> Robin
>>>>>
>>>>> _______________________________________________
>>>>> Accountability-Cross-Community mailing list
>>>>> Accountability-Cross-Community at icann.org
>>>>> https://mm.icann.org/mailman/listinfo/accountability-cross-community
>>>>>
>>>>
>>>> _______________________________________________
>>>> Accountability-Cross-Community mailing list
>>>> Accountability-Cross-Community at icann.org
>>>> https://mm.icann.org/mailman/listinfo/accountability-cross-community
>>>>
>>>>
>>>>
>>>
>>> _______________________________________________
>>> Accountability-Cross-Community mailing list
>>> Accountability-Cross-Community at icann.org
>>> https://mm.icann.org/mailman/listinfo/accountability-cross-community
>>>
>>>
>>
> _______________________________________________
> Accountability-Cross-Community mailing list
> Accountability-Cross-Community at icann.org
> https://mm.icann.org/mailman/listinfo/accountability-cross-community
More information about the Accountability-Cross-Community
mailing list