[council] FW: Outside legal Support for WS2 --- FW: Slides and AC recording CCWG Accountability Webinar 22 August 2016

Wed Aug 24 15:46:11 UTC 2016

Fellow Council members:

FYI, I am sharing these thoughts on yesterday’s legal support presentation, which I just shared with BC members.

Best to all, Philip

Philip S. Corwin, Founding Principal
Virtualaw LLC
1155 F Street, NW
Suite 1050
Washington, DC 20004
202-559-8597/Direct
202-559-8750/Fax
202-255-6172/Cell

Twitter: @VlawDC

"Luck is the residue of design" -- Branch Rickey

From: Phil Corwin
Sent: Wednesday, August 24, 2016 11:39 AM
To: bc-private icann.org (bc-private at icann.org)
Subject: Outside legal Support for WS2 --- FW: Slides and AC recording CCWG Accountability Webinar 22 August 2016

BC members:

Late yesterday I participated in a call for Council members regarding budgeting for WS2 Accountability issues. Attached are the materials used on the call.

As you will note on the first page of the CCWG-Budget ownership document,  the amount budgeted for external legal advice for all of the WS2 issues (and there are   9 separate tracks) is:

               Professional fees: using the legal advice for the total project over 2 years ($14m), 10% or $1.4m for WS2 considered a reasonable.

That is, just 10% of the outside legal costs incurred for WS1 has been budgeted for WS2.

When the Q&A/comment portion of the call opened up I made the following points:

·         We all support responsible budgeting  and paring of unnecessary expenses in all ICANN funded work

·         That said, WS2 are not less important than WS1 issues – they are just issues that did not need to be resolved prior to the transition. Many are quite important to assuring post-transition ICANN accountability

·         Several of the WS2 topics – most notably staff accountability, transparency (which encompasses disclosure of internal staff communications and procedures) and good faith conduct in Board removal discussions – are ones where participating community members are more likely to desire assuredly impartial outside legal advice rather than that coming from ICANN’s own legal department

·         So, while it is reasonable to assume that WS2 outside legal expenses will be less than those for WS1 (e.g., there will be no need to draft and vet extensive new Bylaws or Articles of Incorporation provisions) a 10% cap may be unrealistically low

On the call I also investigated the process for securing more funding if my concerns are borne out in practice.

Page 3 of the PDF contains this information:

3. External legal advice

 legal committee: to evaluate needs for legal advice, and determine adequate source to provide the answer, privileging the highest value (value = benefit / cost).
 Legal committee membership to include an ICANN legal representative, community members with experience in procuring external legal advice, and the CCWG co-chairs.

I asked on the call how the legal committee would reach decisions on funding needs and, in particular, whether the “ICANN legal representative” would have an equal voice. I was told that the individual from ICANN Legal would not have the same weight in making decisions, but I think we will need to see how this process plays out in practice.

Slide 4 of the attached PPT has this information about the role of the Legal Committee:

Role :

Filter, analyze, refine (ensure clarity), and approve requests for legal advice

Determine which firm is best suited to respond

Process :

The Committee meets at least once a month

Based on subgroup requests documented and share before the meeting,

Rapporteurs may attend relevant part of the call to discuss their requests

LC ensures that request is a legal issue (not a policy one)

With support from PCST, LC tracks legal expenses with clear distinction between what is related to its scope vs any other Legal costs.

Counsel may be invited to attend parts of the LC meeting to ensure clarity of expectations and context (reminder : Counsel participation to CCWG and subgroup calls is exceptional only)

Composition based on WS1 Legal subteam executive team, ie :

León Sanchez (co-chair, lead)

Samantha Eisner (support)

Athina Fragkouli

Robin Gross

David McAuley

Sabine Meyer

Edward Morris

Greg Shatan

The final page of the attached PPT has this additional information regarding the process within the Legal Committee:

                Proposed guidelines for the Legal Committee:

                If Icann Legal already has an answer available to the question, it can be shared immediately to avoid extra costs.

The Committee may direct the request at ICANN Legal or external firms, based on a case by case assessment.

Decisions would have to take into account costs, delays, respective skills, as well as potential requirement for “independent” advice.

The Committee is encouraged to use ICANN Legal as much as possible in order to manage costs effectively.

Sidley & Adler will coordinate to decide which firm is best suited to address requests certified to CCWG Independent Counsel

If the CCWG requests advice from Jones Day, then Jones Day should either (a) disclose that ICANN (and not the CCWG) is their client for purposes of the memo or (b) enter into an engagement specifically with the CCWG as client (same as Sidley and Adler), and that ICANN has provided a waiver of conflict of interest.

Hiring of other firms for specific expertise would be subject to CCWG-ACCT and Icann Legal prior approval (similar process as during WS1)

Once the LC has determined it needs to hire external legal counsel it forwards the request with relevant details, including estimated costs and a report from the PCST on the financial impact, to the Co-Chairs for approval.

The Co-Chairs will consider the request and the financial impact as soon as possible and provide a formal response to the LC which will be documented on the CCWG WS2 Wiki if approved.

Generally, I believe that the use of a Legal Committee to authorize and track outside legal expenses is sound. However, I do have some concern that the determinations of the Legal Committee are subject to final review and decision-making by the CCWG Co-Chairs. Further, it came out in the call that the final decision on any request for funds beyond the allocated $1.4 million will be made by the Board, which raises the disturbing possibility that the Board could veto a request for legal advice integral to final decisions on such matters as staff accountability, organizational transparency, and conduct in Board removal proceedings.

I do not know if there is any way to get the $1.4 million cap reconsidered; it seemed on the call that it was set in stone. I certainly hope that it is sufficient to provide needed outside legal support for the remaining accountability work, but I did want to get my concerns on the record now in the event that the reality proves otherwise.

Best to all,
Philip

Philip S. Corwin, Founding Principal
Virtualaw LLC
1155 F Street, NW
Suite 1050
Washington, DC 20004
202-559-8597/Direct
202-559-8750/Fax
202-255-6172/Cell

Twitter: @VlawDC

"Luck is the residue of design" -- Branch Rickey

From: owner-council at gnso.icann.org<mailto:owner-council at gnso.icann.org> [mailto:owner-council at gnso.icann.org] On Behalf Of Nathalie Peregrine
Sent: Tuesday, August 23, 2016 7:09 PM
To: council at gnso.icann.org<mailto:council at gnso.icann.org>
Cc: gnso-secs at icann.org<mailto:gnso-secs at icann.org>
Subject: [council] Slides and AC recording CCWG Accountability Webinar 22 August 2016

Dear all,

Please find the presentations attached and the AC recording (audio and slides) of the CCWG Accountability webinar held today on 22 August 2016: https://icann.adobeconnect.com/p8fu99qpt7d/<https://icann.adobeconnect.com/p8fu99qpt7d/?OWASP_CSRFTOKEN=4a5606fac094afb3d2208483c45a1f0ddd829a9db9b371bb3396de9d6dcac76e>

Kind regards,

Nathalie
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