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

Stephanie Perrin stephanie.perrin at mail.utoronto.ca
Wed Aug 24 23:56:52 UTC 2016


Thanks for sharing this Phil.  I think all your points are spot on, and 
I am wondering how we can elevate these concerns now and get the budget 
increased, and oversight of the decision-making regarding the 
procurement of legal advice improved.

Stephanie Perrin


On 2016-08-24 11:46, Phil Corwin wrote:
>
> 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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