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

Mon Jul 18 20:32:23 UTC 2016

I agree with Greg’s points below, which are critical to receiving the most effective representation.

Thanks,
Robin

> On Jul 18, 2016, at 12:25 PM, Greg Shatan <gregshatanipc at gmail.com> wrote:
> 
> 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 <mailto: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 <mailto: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 <mailto: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 <mailto:paul.rosenzweig at redbranchconsulting.com>
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>  
> 
> 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 Seun Ojedeji
> Sent: Monday, July 18, 2016 12:32 PM
> To: Mathieu Weill <mathieu.weill at afnic.fr <mailto:mathieu.weill at afnic.fr>>
> Cc: ACCT-Staff <acct-staff at icann.org <mailto:acct-staff at icann.org>>; accountability-cross-community at icann.org <mailto: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 <mailto: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
> 
> 
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