[CWG-Stewardship] Sidley Austin LLP

Tue Mar 10 15:22:16 UTC 2015

John,

This exact set-up turned out not to be workable since the CWG is not a
party (nor is it a part of a party like a board committee).  Nonetheless, I
believe that the substance of this email is carried out in the current
set-up.

Greg

On Mon, Mar 9, 2015 at 11:27 PM, John Poole <jp1 at expri.com> wrote:

> 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:
>
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> *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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