[CCWG-ACCT] Who is managing the lawyers and what have they beenasked to do?
Chris Disspain
ceo at auda.org.au
Mon Jul 6 21:16:15 UTC 2015
Greetings All,
Speaking as a recovering lawyer and an experienced client, may I respectfully suggest that we actually ask our lawyers for their opinion rather than simply asking them to answer a series of direct questions. A "what would you do in our circumstances?" question will give them far more licence to be creative than "tell me how I can block the budget".
Cheers,
Chris Disspain | Chief Executive Officer
.au Domain Administration Ltd
T: +61 3 8341 4111 | F: +61 3 8341 4112
E: ceo at auda.org.au | W: www.auda.org.au
auDA - Australia's Domain Name Administrator
> On 7 Jul 2015, at 00:32, Avri Doria <avri at acm.org> wrote:
>
> 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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>> --
>> Jordan Carter
>>
>> Chief Executive
>> *InternetNZ*
>>
>> 04 495 2118 (office) | +64 21 442 649 (mob)
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>> Skype: jordancarter
>>
>> /A better world through a better Internet /
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>>
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