[CWG-Stewardship] Sidley Austin LLP

Tue Mar 10 03:27:21 UTC 2015

Jonathan, Greg, et al:

Note that my reaction to today's disclosure that "ICANN is the client" was
based, in part, on Greg Shatan's email to Kieren McCarthy in February:

*Kieren,I don't think it is foolish at all to have ICANN pay for the
independentadvice.  It is not uncommon for one party to pay the bill and
for anotherparty to be the client.  It's not even uncommon to have a board
committeeof a corporation hire independent counsel where the committee's
interestsare divergent from the corporation (e.g., when dealing with an
internalinvestigation) and have the corporation pay.  These are situations
that lawfirms are comfortable handling.  Basically, the question is "who is
theclient?" and the client would be the Working Group(s), not ICANN.  The
lawfirm's ethical "duty of loyalty" is to the client** . . . *

[from Greg Shatan's email to Kieren McCarthy dated February 17, 2015
<http://mm.icann.org/pipermail/accountability-cross-community/2015-February/001261.html>
(emphasis added)]

The above was my understanding, until today, of the terms under which
independent legal counsel would be retained. There are no "pitchforks"
intended here--at least not from me.

Best regards,
John Poole

On Mon, Mar 9, 2015 at 7:38 PM, John Poole <jp1 at expri.com> wrote:

> Greg:
> My email was addressed to Jonathan, co-chair, not you. I made no specific
> comments about you and I will disregard the ad hominem attacks you just
> made on me. I am well aware of your contributions and work on behalf of
> CWG-Stewardship. Nonetheless, I stand by my previous email. After you calm
> down, however, I would also appreciate your responses to questions raised
> in my previous email and also raised by your angry diatribe--when did you
> first become aware that ICANN would be the client? Why did you not disclose
> that to CWG-Stewardship until now?  You say I am wrong--do you acknowledge
> that Austin Sidley does NOT owe CWG-Stewardship the duties it would to a
> client under the California Code of Professional Responsibility? On what
> basis under California law do you maintain that CWG-Stewardship cannot be
> the client? This is the first time I have heard you issue that opinion--why
> did you not inform CWG-Stewardship of your opinion on this earlier? You say
> "These very issues were raised and discussed" --where? when? Why wasn't
> CWG-Stewardship informed before now? Did you really think it was of no
> importance to disclose to CWG-Stewardship that ICANN would be the client? I
> find that hard to believe. I never said Austin Sidley is not a fine
> firm--on the contrary, I have already said they are eminently
> well-qualified. But if Austin Sidley is rendering advice to a non-client,
> instead of a client, I believe that raises issues, and ramifications, that
> needed to be fully, and timely, disclosed to CWG-Stewardship. -- John Poole
>
> On Mon, Mar 9, 2015 at 6:30 PM, Greg Shatan <gregshatanipc at gmail.com>
> wrote:
>
>> John,
>>
>> The CWG is not a legal entity, and therefore cannot engage ICANN for
>> legal services (or for that matter enter into any contract with anybody for
>> anything).  You've read the letter -- it says Sidley is
>>
>> "to take direction exclusively from and provide advice and consultation
>> exclusively to the Cross-Community Working Group on the IANA Stewardship
>> Transition Proposal on Naming Related Functions (“CWG”), primarily through
>> the CWG’s Client Committee (the “Client Committee”)."
>>
>> Furthermore, the letter states:
>>
>> "For the avoidance of doubt, ICANN will have no rights or input as a
>> client to direct or affect the advice and consultation with the CWG."
>>
>> Let me make plain to everyone -- John is wrong.  I am also fully aware of
>> the ethical rules that apply in this instance.  These very issues were
>> raised and discussed and I am utterly confident that we will get the
>> independent advice we sought.  Sidley Austin is fully aware of the emphasis
>> on "independent" legal advice and I am also confident they would not have
>> taken this representation if they thought that they could not deliver on
>> that.
>>
>> Furthermore I find these accusations incorrect, baseless and bordering on
>> scurrilous and troll-like behavior.
>>
>> Let me make another thing plain.  I am a volunteer.  Nobody is paying me
>> to do any of this.  I can easily choose to devote my time to other things.
>> I will devote my time to the IANA transition.  I will not devote my time to
>> having my character and professional integrity impugned.
>>
>> I worked damned hard and in utter good faith to get this CWG first-rate
>> legal advice, and so did the rest of the client committee.  It's depressing
>> and infuriating to have to cope with this in response.  I guess no good
>> deed goes unpunished.  But I am not a glutton for punishment.
>>
>> Greg
>>
>>
>>
>> On Mon, Mar 9, 2015 at 6:55 PM, John Poole <jp1 at expri.com> wrote:
>>
>>> Jonathan:
>>> I find this very troubling. ICANN is the client. Specifically,
>>> CWG-Stewardship is NOT the client, so what good is Sidley Austin's advice?
>>> Sidley Austin owes CWG-Stewardship none of the duties required of attorneys
>>> to clients under the California Code of Professional Responsibility. This
>>> is not what I understood CWG-Stewardship was getting, and I feel
>>> CWG-Stewardship has been intentionally misled. For all intents and
>>> purposes, ICANN could have made the same arrangements with Jones Day as
>>> they did with Sidley Austin, and saved us the time and trouble. Has anyone
>>> on the Client Committee reviewed independently the California Code of
>>> Professional Conduct and sought the opinion of a qualified non-interested
>>> California Attorney before agreeing to this? There are serious
>>> ramifications as to who is the named "client"--including the duty of
>>> loyalty--of which ICANN legal staff and Sidley Austin are fully aware. When
>>> did the Client Committee agree that the client for our "independent legal
>>> counsel" would be ICANN? Why was that not disclosed until now to all
>>> members and participants of CWG-Stewardship? Jonathan, is this what you
>>> mean by "good faith?" Let me make this plain for everyone--what the Client
>>> Committee has obtained is "ICANN outside Legal Counsel" for our use, but
>>> NOT Independent Legal Counsel--"Independent" means "independent of ICANN."
>>> Now I understand why ICANN legal staff and Jones Day have been intimately
>>> involved in the Client Committee process while members and participants of
>>> CWG-Stewardship were intentionally kept in the dark. This is not "good
>>> faith"--this reeks of "bad faith." -- John Poole
>>>
>>> On Mon, Mar 9, 2015 at 4:16 PM, Jonathan Robinson <
>>> jonathan.robinson at ipracon.com> wrote:
>>>
>>>> All,
>>>>
>>>>
>>>>
>>>> You may find the attached a more easily digestible summary of key terms.
>>>>
>>>>
>>>>
>>>> Jonathan
>>>>
>>>>
>>>>
>>>> *From:* Jonathan Robinson [mailto:jrobinson at afilias.info]
>>>> *Sent:* 09 March 2015 21:06
>>>> *To:* cwg-stewardship at icann.org
>>>> *Subject:* RE: Sidley Austin LLP
>>>>
>>>>
>>>>
>>>> All,
>>>>
>>>>
>>>>
>>>> Please see attached for the executed engagement letter with Sidley
>>>> Austin.
>>>>
>>>>
>>>>
>>>> Jonathan
>>>>
>>>>
>>>>
>>>> *From:* Jonathan Robinson [mailto:jrobinson at afilias.info
>>>> <jrobinson at afilias.info>]
>>>> *Sent:* 08 March 2015 21:46
>>>> *To:* cwg-stewardship at icann.org
>>>> *Subject:* Sidley Austin LLP
>>>>
>>>>
>>>>
>>>> Dear All,
>>>>
>>>>
>>>>
>>>> As of Friday 6 March, the CWG-Stewardship has engaged Sidley Austin LLP
>>>> to advise and consult on the CWG’s development of a transition proposal.
>>>>
>>>>
>>>>
>>>> In the past two weeks, the Client Committee shortlisted three firms,
>>>> interviewed each of them, and retained one. We chose to retain Sidley
>>>> primarily because they envisaged the engagement as consultation rather than
>>>> pure advice. In addition, Sidley presented a strong governance focus as
>>>> well as specific experience with the U.S. political environment (including
>>>> a former Congressman and a former Department of Commerce appointee).
>>>>
>>>>
>>>>
>>>> Sidley is aware of the CWG’s tight timeframe and accepts the
>>>> requirement for highly transparent work methods. Also, the client
>>>> relationship has been clearly defined and emphasized in the retention
>>>> letter in that *ICANN has instructed Sidley to take direction
>>>> exclusively from and provide advice and consultation exclusively to the
>>>> CWG, primarily through the CWG’s Client Committee*.
>>>>
>>>>
>>>>
>>>> Sidley has no previous client relationship with ICANN. No conflicts
>>>> were identified, however please note that Greg Shatan and Holly Gregory
>>>> from Sidley worked at the same firm over a decade ago.
>>>>
>>>>
>>>>
>>>> The Client Committee will meet with Sidley Austin on Monday. This call
>>>> will be recorded and transcribed and we will then provide an update to the
>>>> CWG on Tuesday’s call, where we also plan to introduce the Sidley team to
>>>> the CWG.
>>>>
>>>>
>>>>
>>>> Best wishes,
>>>>
>>>>
>>>>
>>>>
>>>>
>>>>
>>>> Jonathan & Lise
>>>>
>>>>
>>>>
>>>> _______________________________________________
>>>> CWG-Stewardship mailing list
>>>> CWG-Stewardship at icann.org
>>>> https://mm.icann.org/mailman/listinfo/cwg-stewardship
>>>>
>>>>
>>>
>>> _______________________________________________
>>> CWG-Stewardship mailing list
>>> CWG-Stewardship at icann.org
>>> https://mm.icann.org/mailman/listinfo/cwg-stewardship
>>>
>>>
>>
>
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