[CCWG-ACCT] Who is managing the lawyers and what have they beenasked to do?
Avri Doria
avri at acm.org
Mon Jul 6 14:29:21 UTC 2015
Hi,
I agree. I hate the fact that there may be a better recipe out there
and that we don't know what it is.
avri
On 06-Jul-15 09:38, Jordan Carter wrote:
> 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
> <mailto: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
>> <mailto: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>
>>> [mailto: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
>>> <mailto: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>
>>> <mailto: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>
>>> <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> <mailto: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>
>>> <mailto: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> <mailto: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>
>>> <mailto: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>
>>> <mailto: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>
>>> <mailto: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
>>>
>>> _______________________________________________
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>>>
>>>
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>>>
>>>
>>>
>>>
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>
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>
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