[CCWG-ACCT] Who is managing the lawyers and what have they beenasked to do?
George Sadowsky
george.sadowsky at gmail.com
Mon Jul 6 21:42:05 UTC 2015
One of the questions that I often ask people in situations like this is, "what should I have asked you but didn't?
In that spirit, I'd like to ask the lawyers the following:
"You have been working with us now for several months, and you have a reasonable idea of what our goals are, even though we may differ to some extent on what they are exactly. Given that experience, if you were trying to solve for a structure that met our goals a understand you understand them, and you were able to start with a blank page, what approaches would you take and what questions would you ask? What would be your advice?
Then, what would your answers be to the de novo questions that you had formulated using this approach?"
Asking the wrong question generally gives you the wrong answer, or an answer that is misleading and not useful.
I would like to hear the lawyers views on this approach in an open context, where there could be a back-and-forth discussion between people in the room and the lawyers.
George
On Jul 6, 2015, at 5:16 PM, Chris Disspain <ceo at auda.org.au> wrote:
> 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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>>>>> Accountability-Cross-Community at icann.org
>>>>> <mailto:Accountability-Cross-Community at icann.org>
>>>>> <mailto:Accountability-Cross-Community at icann.org>
>>>>> https://mm.icann.org/mailman/listinfo/accountability-cross-community
>>>>>
>>>>>
>>>>>
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>>>>>
>>>>>
>>>>>
>>>>>
>>>>>
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>>>>>
>>>>>
>>>>>
>>>>>
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>>>
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