[CCWG-ACCT] Who is managing the lawyers and what have they beenasked to do?

Jordan Carter jordan at internetnz.net.nz
Mon Jul 6 13:38:07 UTC 2015


Well, I would really really like to see what the creative thinking they
have done has suggested. I trust our ability as a group to make decisions,
and do not believe we should cut off input from any direction...

Jordan

On 7 July 2015 at 01:13, James Gannon <james at cyberinvasion.net> wrote:

>  Hey Avri,
>
>  Yes the 3rd model was brought up, and the lawyers feel that it might be
> a cleaner way for us to get the powers that we need.
> But without a call from the CCWG to present it they feel that its not
> their position to propose a model on their own initiative.
>
>  Personally i would like to see what they have come up with but the CCWG
> would need to ask as an overall group for the chairs to direct them to give
> some more information on the model if we wanted it.
> I think if after we hear from them on Tuesdays call we still feel we might
> have some shortcomings that it might be the time to ask them about the 3rd
> option.
>
>  Also +1 I think they are really enjoying the work and are finding
> themselves getting more and more involved as we go on, which is great for
> the CCWG as the more background and details they know the better that are
> able to give us solid well reasoned advice in my opinion.
>
>  -James
>
>
>  On 6 Jul 2015, at 13:19, Avri Doria <avri at acm.org> wrote:
>
> Hi,
>
> I have not had a chance to get back to the recording of the  call.  Not
> sure I will, that time was the time I had for that call and that is why
> i was listening then.
>
> In any case, the lawyers were talking about a new model they had come up
> with, but not knowing what to do about it since they had not been asked
> for a new model.
>
> I was told to leave before I got to hear the end of that story. Or about
> the model itself.  Anyone who has had a chance to listen, whatever
> happened?
>
> avri
>
> ps. sometimes i think the lawyers are getting interested in what we are
> doing, almost like stakeholders. not that i expect them to give up their
> hourly rates because they are stakeholders.
>
> On 06-Jul-15 05:07, James Gannon wrote:
>
>
> I listened to the last co-chairs lawyers’ call at;
> https://community.icann.org/pages/viewpage.action?pageId=53782602
> (I’m a glutton for punishment)
>
>
>
> It was a short call and I’ll make a particular note that Leon and
> Mathieu made a point of not making any decisions on behalf of the
> whole group and made it clear anything requiring a decision must be
> made by the overall CCWG, so I was happy with that side of things
> myself, most of my own fears about not having a sub-group are somewhat
> assuaged.
>
> So my paraphrasing and overview is:
>
>
>
> ·         Lawyers working hard on the models for us collaboratively
> between the two firms since BA
>
> ·         Lawyers are prepping a presentation to give to us ASAP
> before Paris if possible, that presentation will take the majority of
> a call, it can’t be done quickly, they need about 45mins uninterrupted
> to go through the presentation and then would likely need Q&A time
> after they present.
>
> ·         Some small wording/clarifications to come back to the CCWG
> to make sure everyone’s on the same page
>
> ·         Everyone feels Paris will be an important time for the
> models, lawyers will be ready for a grilling on the details of the
> models from us to flesh out any of our concerns/questions
>
>
>
> Note that the above is all my very condensed overview of the
> conversations.
>
> It seemed like a productive call to me.
>
>
>
> -James
>
>
>
>
>
> *From:*accountability-cross-community-bounces at icann.org
> [mailto:accountability-cross-community-bounces at icann.org] *On Behalf
> Of *Greg Shatan
> *Sent:* Monday, July 06, 2015 5:33 AM
> *To:* Carlos Raul
> *Cc:* accountability-cross-community at icann.org
> *Subject:* Re: [CCWG-ACCT] Who is managing the lawyers and what have
> they beenasked to do?
>
>
>
> 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
> <mailto:carlosraulg at gmail.com <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 <tel:%2B506%208837%207176>
>
>    Skype carlos.raulg
>
>    _________
>
>    Apartado 1571-1000
>
>    *COSTA RICA*
>
>
>
>
>
>    On Mon, Jul 6, 2015 at 12:02 AM, Greg Shatan
>    <gregshatanipc at gmail.com <mailto:gregshatanipc at gmail.com
> <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
>        <mailto:lists at christopherwilkinson.eu
> <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 <mailto:gregshatanipc at gmail.com
> <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
>                <mailto:wolfgang.kleinwaechter at medienkomm.uni-halle.de
> <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
>                    <
> mailto:accountability-cross-community-bounces at icann.org
> <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
>                    <mailto:accountability-cross-community at icann.org
> <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
>                    <mailto:Accountability-Cross-Community at icann.org
> <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
>                <mailto:Accountability-Cross-Community at icann.org
> <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
>        <mailto:Accountability-Cross-Community at icann.org
> <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
>
>
>
> ---
> This email has been checked for viruses by Avast antivirus software.
> https://www.avast.com/antivirus
>
> _______________________________________________
> 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
>
>


-- 
Jordan Carter

Chief Executive
*InternetNZ*

04 495 2118 (office) | +64 21 442 649 (mob)
jordan at internetnz.net.nz
Skype: jordancarter

*A better world through a better Internet *
-------------- next part --------------
An HTML attachment was scrubbed...
URL: <http://mm.icann.org/pipermail/accountability-cross-community/attachments/20150707/d6552b7a/attachment.html>


More information about the Accountability-Cross-Community mailing list