[CCWG-ACCT] Legal Committee and WS2 budget - new proposal

Mon Jul 18 19:25:22 UTC 2016

Mathieu,

Generally, the proposal looks good.  I have the following comments:

Slide 4:  *Monthly meetings* -- I think the legal committee will need to be
more nimble and responsive than this.  Quarantining legal counsel requests
may not work in many instances, where the work is needed at the time the
question ripens within a subgroup.  We should either (a) have a process
that moves forward without the need for a meeting, or (b) more frequent
meetings (which will have the benefit of being shorter, since fewer items
will be presented) (or both).
*Tracking legal expenses* -- This is absolutely critical.  We had no
transparency into expenses, except when the gross numbers were announced,
which was way too late to  be meaningful to managing costs.  The legal
committee must see the legal bills immediately when received by ICANN.  On
a related note, it needs to be absolutely clear that the CCWG's budget for
counsel does not include any spend for ICANN external counsel or any
allocated costs for ICANN Legal (possibly excluding times when they are
acting on an express request from CCWG).  Also, it would not be fair for
any overall "legal budget" to be split between ICANN and the CCWG equally.
ICANN has the benefit of having inside counsel, which is inherently more
cost-effective (particularly on an allocated basis), while the CCWG only
has external counsel.  (The idea of in-house counsel for the CCWG is
interesting, but probably not worth discussing at this juncture....)

Slide 6:  *ICANN Legal*: "The Committee is encouraged to use ICANN Legal as
much as possible in order to manage costs effectively."  I would add "Where
appropriate," to the beginning of this point.  Otherwise, it could be used
to argue that there is a default to use  ICANN Legal, which has generally
been rejected in this group.  This also does not account for the issues of
attorney-client privilege and the attorney's duty of loyalty to their
client, both of which apply to in-house counsel (see below).
*ICANN External Counsel*: "Requests may be directed to Icann’s external
Counsel, if the Committee finds it appropriate. In such case, before
certifying the request, the Legal Committee will discuss with ICANN Legal
how best to address attorney-client privilege issues."  I would like more
clarity on what specific attorney-client privilege issues are being
referenced here.  CCWG legal counsel has had essentially had to waive
privilege on most advice, so that it can be seen and discussed in an open
and transparent fashion.  On the other hand, advice given to ICANN by
ICANN's external counsel has not been shared directly with the CCWG, on the
grounds that that advice is subject to privilege in the relationship
between attorney (outside counsel) and client (ICANN, Inc. -- not the
CCWG).  As such, it seems that materials received from ICANN's outside
counsel are either advice to ICANN, Inc. (and thus privileged and
unavailable to the CCWG), legal assertions made to a non-client (and thus
to be taken with a grain of salt), or advice given to the CCWG as its
client (which client relationship does not yet exist, and which likely
requires a conflict waiver before such client relationship can be
initiated).  It should be noted that attorney-client privilege is just one
aspect of a larger issue, which is the duty of loyalty (and other duties)
by the attorney to their client.

Greg

On Mon, Jul 18, 2016 at 2:54 PM, Greg Shatan <gregshatanipc at gmail.com>
wrote:

> I believe that the CCWG has already generally been informed when a
> question or issue has been referred to counsel -- at least by reference to
> the legal committee list, when decisions were made in that manner, and by
> statement of the Co-Chairs, when that was the approach.  I don't think
> there's a need for a "rationale" to be prepared each time.  This seems like
> "make-work," and/or a back-door attempt to introduce the "default" that has
> been broadly rejected.   In any event, the rationale should be self-evident
> from the question presented by the subgroup seeking legal advice.
>
> Greg
>
> On Mon, Jul 18, 2016 at 2:14 PM, Seun Ojedeji <seun.ojedeji at gmail.com>
> wrote:
>
>> Hello Paul,
>>
>> That is fair enough, however if such decisions must be left to the
>> committee to allow for efficiency, a proactive approach to notifying the
>> CCWG needs to be put in place; such decisions should be documented with
>> appropriate *rationale* as well.
>>
>> Regards
>>
>> Sent from my LG G4
>> Kindly excuse brevity and typos
>>
>> On 18 Jul 2016 6:15 p.m., "Paul Rosenzweig" <
>> paul.rosenzweig at redbranchconsulting.com> wrote:
>>
>>> With respect, I disagree.  The question of whether or not to seek advice
>>> is a ministerial one that can and should be left to the good judgment of
>>> the co-chairs and the committee members.   As we have seen in the last few
>>> days, the broader CCWG can get overwhelmed with disagreement on relatively
>>> inconsequential matters of process when for the most part our thinking and
>>> time are best devoted to substantive questions that require analysis and
>>> resolution
>>>
>>>
>>>
>>> Cheers
>>>
>>> Paul
>>>
>>>
>>>
>>> Paul Rosenzweig
>>>
>>> paul.rosenzweig at redbranchconsulting.com
>>>
>>> O: +1 (202) 547-0660
>>>
>>> M: +1 (202) 329-9650
>>>
>>> VOIP: +1 (202) 738-1739
>>>
>>> www.redbranchconsulting.com
>>>
>>> My PGP Key: http://redbranchconsulting.com/who-we-are/public-pgp-key/
>>>
>>>
>>>
>>> *From:* accountability-cross-community-bounces at icann.org [mailto:
>>> accountability-cross-community-bounces at icann.org] *On Behalf Of *Seun
>>> Ojedeji
>>> *Sent:* Monday, July 18, 2016 12:32 PM
>>> *To:* Mathieu Weill <mathieu.weill at afnic.fr>
>>> *Cc:* ACCT-Staff <acct-staff at icann.org>;
>>> accountability-cross-community at icann.org
>>> *Subject:* Re: [CCWG-ACCT] Legal Committee and WS2 budget - new proposal
>>>
>>>
>>>
>>> Hello Mathieu,
>>>
>>> The attached document indicated that decision will be handled based on
>>> case by case basis which is fine.
>>>
>>> However I think sub-bullet 1 of item 2 on page 6 is not explicit about
>>> decision making process. I like to suggest that when independent council is
>>> required, the legal committee should rather recommend (not decide on
>>> behalf) to the group as it should be the decision of the CCWG-ACT to make.
>>> Such recommendation should also include adequate rationale on why external
>>> council is preferred over ICANN legal staff.
>>>
>>> Regards
>>>
>>> Sent from my LG G4
>>> Kindly excuse brevity and typos
>>>
>>>
>>>
>>> On 18 Jul 2016 5:10 p.m., "Mathieu Weill" <mathieu.weill at afnic.fr>
>>> wrote:
>>>
>>> Dear Colleagues,
>>>
>>>
>>>
>>> Based on the feedback received during last week’s call, as well as on
>>> the robust discussion on the list, we are suggesting a revised approach for
>>> the Legal Committee :
>>>
>>> -          Composition based on previous Legal executive team
>>>
>>> -          Co-chairs remain budget owners, working with support from
>>> the PCST
>>>
>>> -          Legal committee may direct requests to external firms, on a
>>> case by case assessment taking into account costs, skills as well as
>>> potential requirement for “independent” advice.
>>>
>>>
>>>
>>> We believe this strikes a good balance between the need to manage costs
>>> efficiently and responsibly, and the ability for our group to request
>>> independent advice when needed.
>>>
>>>
>>>
>>> Depending on the feedbacks, we will report on our progress to the Board
>>> Finance Committee and SO/AC leaders during a call that has been arranged at
>>> the BFC’s request on Monday 25 July.
>>>
>>>
>>>
>>> Best regards,
>>>
>>> Mathieu Weill
>>>
>>> Co-chair
>>>
>>>
>>> _______________________________________________
>>> Accountability-Cross-Community mailing list
>>> Accountability-Cross-Community at icann.org
>>> https://mm.icann.org/mailman/listinfo/accountability-cross-community
>>>
>>>
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>>
>
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