[CWG-Stewardship] Client Committee

[Gomes, Chuck]

Kieren,

I agree with you that “"Trust" is not a replacement for procedural norms.”  But I think that procedural norms  that we have developed within ICANN need to be modified somewhat in this situation because of the timeframe limitations and the practicality of interfacing effectively with the law firm.  That said, transparency is an area we cannot compromise on.

Chuck

From: Kieren McCarthy [mailto:kieren at kierenmccarthy.com]
Sent: Monday, March 09, 2015 8:52 PM
To: Gomes, Chuck
Cc: jrobinson at afilias.info; cwg-stewardship at icann.org
Subject: Re: [CWG-Stewardship] Client Committee

I wasn't at all distrustful, just curious, when I first start asking questions.

It is the answers that are making me uncomfortable. Especially the involvement of ICANN's lawyers, both in-house and external.

The concept of "trust" as it is being relayed in the context of this closed committee is most unusual.

"Trust" is not a replacement for procedural norms. Arguing otherwise only raises more questions.



Kieren


On Mon, Mar 9, 2015 at 5:00 PM, Gomes, Chuck <cgomes at verisign.com<mailto:cgomes at verisign.com>> wrote:
Kieren,

Your excessive mistrust is becoming counterproductive.  I am all for asking hard questions if they are asked in a constructive manner but in my personal opinion you have gone beyond that point.  I admit that I have had the opportunity of working with Greg fairly extensively in multiple GNSO WGs so I probably have a very strong basis for trusting his leadership in this effort, but I still think it would be helpful if you moderate your high level of suspicion.

Chuck

From: cwg-stewardship-bounces at icann.org<mailto:cwg-stewardship-bounces at icann.org> [mailto:cwg-stewardship-bounces at icann.org<mailto:cwg-stewardship-bounces at icann.org>] On Behalf Of Kieren McCarthy
Sent: Monday, March 09, 2015 7:23 PM
To: jrobinson at afilias.info<mailto:jrobinson at afilias.info>
Cc: cwg-stewardship at icann.org<mailto:cwg-stewardship at icann.org>
Subject: Re: [CWG-Stewardship] Client Committee

> The Client Committee remains required in order to provide a coherent interface between the
> CWG & the retained law firm because it is not practical or cost-effective for a group the size of
> the CWG to continuously interact with the retained law firm at all times.


Can I ask who decided this? Was it the closed committee itself or was there a discussion on this list that I missed?

I'm not sure these assertions hold much water to be honest. And the previous justification for having a closed committee for selecting the legal team - expediency - turned out not to be true either.

I am concerned that important decisions are being made by a closed committee without the normal, or adequate, transparency or accountability measures.

It seems peculiar that with well established processes for the rest of this process that this aspect now has to rely on people recommending transparency and accountability components.

Surely it should be the case that this part of the process is run exactly the same as the rest of the IANA transition. That means an open mailing list, open meetings, minutes, recordings and so on.

If any changes are made they should be dependent on persuading others that they need to be *removed* rather than this approach which appears to start from complete secrecy and then ask the community to persuade the select group of four people (plus ICANN lawyers, both in-house and external) that they should introduce norms.

The fact that this process is about developing external legal advice and that that advice is expected to contradict ICANN's own legal advice, makes this abnormal approach all the more concerning to me.

I'm almost hesitant to ask but does this group expect that ICANN's legal team and/or legal representatives would remain on the closed committee?

If so, I'd like to see an explanation for why that isn't a highly significant conflict of interest.



Kieren



On Sun, Mar 8, 2015 at 3:48 PM, Jonathan Robinson <jrobinson at afilias.info<mailto:jrobinson at afilias.info>> wrote:
All,

We are following up on the very good news that the Client Committee has successfully worked with ICANN staff to secure the retention of Sidley Austin. First, particular thanks are due to Greg Shatan for the extraordinary effort he has put in to assist the committee with all aspects of its work.

Since the CWG initially discussed and agreed the set-up and composition of the Client Committee, there has been some e-mail discussion regarding the functioning of the Committee. As you know, the composition comprises the two co-chairs and two legally qualified individuals (Greg Shatan and Maarten Simon) which is a manageable size and contains appropriately qualified members. The Committee was set up to provide an effective interface between the CWG and the firm providing the CWG with appropriate advice on the relevant legal issues. However, prior to that, the first task of the Committee was to secure the services of a suitably qualified firm and that job is now complete. Therefore, now seems to be a good time to seek input on the working of the Client Committee.

The Client Committee remains required in order to provide a coherent interface between the CWG & the retained law firm because it is not practical or cost-effective for a group the size of the CWG to continuously interact with the retained law firm at all times. However, in order for the CWG (and anyone relying on the work of the CWG) to have confidence in the work of the Client Committee, the CWG needs to fully trust that the Client Committee will accurately and effectively transmit and represent the issues and challenges facing the CWG. And moreover, that there will be opportunities for the CWG to interact directly with the law firm in order to enhance that confidence and clarify issues where relevant. As per the announcement of the selection of Sidley, representatives of the firm will be at the CWG meeting on Tuesday to both listen and interact.

Therefore, what (if any) changes to the working methods of the Client Committee should be made so that the CWG can be as confident as possible in the capabilities and work of the Client Committee as this crucial aspect of the CWG’s work commences in earnest?

Thank-you,



Jonathan & Lise


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