[CCWG-ACCT] Who is managing the lawyers and what have they beenasked to do?
Greg Shatan
gregshatanipc at gmail.com
Mon Jul 6 14:32:51 UTC 2015
I agree. We should have the benefit of their thoughts.
Greg
On Mon, Jul 6, 2015 at 9:38 AM, Jordan Carter <jordan at internetnz.net.nz>
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> 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
>>
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>
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>
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>
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