[CWG-Stewardship] Client Committee

Tue Mar 10 18:23:00 UTC 2015

What is it with this trust, distrust and taking personal offense at
perfectly reasonable questions?

The issue is real quite simple: it is a very important part of the process
and it is deviating from the process norms.

The only people that have argued for the closed committee continuing its
role going forward are the people on the closed committee. Rather than get
offended, why not make the case?

The issue about ICANN's lawyers being allowed into conversations and put on
mailing lists when others are refused access is transparently odd.

It would be odd at any point in the IANA transition but it is particularly
odd when you consider what we are talking about here: seeking independent
legal advice outside of ICANN.

So far the reaction from the committee members has only increased concerns:

* Jonathan responded by discounting people's concerns and saying he thinks
it's fine for ICANN's lawyers to be deeply involved in the process. He
appeared to ignore questions about who decided this closed committee not
only needs to continue to be in place but should act at the intermediary
between the legal team and the working group.

* Greg takes personal offense and claims that people are maligning him
when, objectively, they're not. But he doesn't address the key issue of why
it's appropriate to have ICANN's lawyers on a group whose entire purpose is
to get independent legal advice.

* Maarten complains that the committee has been working hard and again
takes personal offense. But again without answering people's concerns.

The key issue is this: why are ICANN's lawyers included *at all*?

Everyone that has stated a view outside the committee has made it plain
that they don't think it is appropriate for ICANN's lawyers, either
internal or external, to be involved at this point.

It's a pretty obvious argument: the entire process is supposed to be about
developing an independent legal view. How can that be the case when there
are more ICANN staff on the mailing list than committee members?

So can we please stop this talk about trust, cut back on the getting
offended, and have a proper discussion on the pertinent issue.

Kieren

On Tue, Mar 10, 2015 at 8:51 AM, Maarten Simon <maarten.simon at sidn.nl>
wrote:

>  All,
>
>  I have not been very active on this list but try to follow it the best I
> can and try to help this process where I think I it can be useful. As some
> may be aware, I am one of the four members on the client committee and have
> worked with Lise, Jonathan and Greg for some weeks now.  It took us some
> time, but we have successfully retained a firm that I am sure is fully
> equipped to help us in our further work. We have worked with ICANN legal as
> ICANN has to be the formal client and has to pay the bill. They have had no
> say in which firm we choose and I have not noticed any attempt to influence
> our choice. They have further accepted the highly unusual clauses in the
> retention letter that gives us the exclusive power to direct the firm in
> its work.
>
>  What strikes me on this list, is that this result is not celebrated but
> merely met with criticism and an enormous amount of distrust towards ICANN
> in the first place but also towards the (members of the) client committee.
> Yes, we have different opinions and, yes, we need debate and everyone must
> have his of her say, but if we want to be able to reach a sort of shared
> understanding in the end (and a good result), we need in my opinion, have
> some basis of trust in each other.
>
>  We as a team have worked hard to get where we are so that we can set the
> next step, and I have to specifically commend Greg for all the work he has
> done.  Let’s now all take this opportunity and start working with the firm
> and get the legal advise we are waiting for.
>
>  Best,
>
>  Maarten
>
>   From: Jonathan Robinson <jrobinson at afilias.info>
> Organization: Afilias
> Reply-To: Jonathan Robinson <jrobinson at afilias.info>
> Date: Tuesday 10 March 2015 13:15
> To: 'James Gannon' <james at cyberinvasion.net>, 'Robin Gross' <
> robin at ipjustice.org>
> Cc: "cwg-stewardship at icann.org" <cwg-stewardship at icann.org>
>
> Subject: Re: [CWG-Stewardship] Client Committee
>
>   All,
>
>
>
> A couple of points to add / re-iterate for complete clarity:
>
>
>
> 1.       The client committee remains as was i.e. the four members and
> has not had ICANN legal added to it
>
> 2.       The mailing list was set up to facilitate the work of the client
> committee – primarily communication between the CC & Sidley - but to do so
> in an open and transparent method.
> Therefore “cwg-client at icann.org” is visible to all. This is clearly
> extremely unusual in client / lawyer relationship but done so for (I hope)
> obvious reasons.
>
>
>
> The working methods of the client committee are work in progress and
> linked to from the URL below:
>
> https://community.icann.org/display/gnsocwgdtstwrdshp/Client+Committee
>
> Please feel free to assist in refining these by proposing any updates to
> the working methods document.
>
>
>
> Overall, the intention is that any discussions, meetings etc that take
> place between the client committee and Sidley and are visible and clear to
> all (including ICANN Legal / Kevin), primarily via “cwg-client at icann.org”.
>
>
>
> I understand the principle highlighted by Robin below but wonder if, given
> that the transparency of the “cwg-client at icann.org” list, it is
> advantageous in some way to retain ICANN Legal’s permission to post to the
> list e.g. for items of clarification, additional information etc? We have
> no sense of ICANN Legal’s intention to post to the list and could simply
> check with them if they are interested to retain that right (which has been
> given to them at the set-up of the mailing list without significant debate
> or discussion). Personally, my inclination is to leave it as is for the
> moment but I haven’t had the opportunity to discuss it with Lise nor fully
> absorb the feedback / concerns from the CWG.
>
>
>
> Thanks.
>
>
>
>
>
> Jonathan
>
>
>
> *From:* James Gannon [mailto:james at cyberinvasion.net
> <james at cyberinvasion.net>]
> *Sent:* 10 March 2015 00:40
> *To:* Robin Gross
> *Cc:* cwg-stewardship at icann.org
> *Subject:* Re: [CWG-Stewardship] Client Committee
>
>
>
> Agreed thats a fair point.
>
>
>
> On 10 Mar 2015, at 00:33, Robin Gross <robin at ipjustice.org> wrote:
>
>
>
>  Well, the ICANN website says that 3 ICANN attorneys are also included on
> the CWG Client Committee mailing list (Samantha, John J, Kevin from Jones
> Day) and meetings.  And ICANN's lawyers are also part of the conversations
> with the CWG Client Cmte, so it seems like they are participants of the
> Client Cmte, even if not labeled as such.
>
>
>
> Since the phase of retaining the law firm and needing ICANN's help
> identifying conflicts is over, ICANN's lawyers should no longer be
> participants on the CWG Client Committee mailing list, meetings,
> discussions, etc., if the client committee can be said to be independent of
> the conflict.
>
>
>
> Thanks,
>
> Robin
>
>
>
>
>
> On Mar 9, 2015, at 5:06 PM, Gomes, Chuck wrote:
>
>
>
>   Robin,
>
>
>
> My understanding is that there are only 4 members of the client
> committee:  Greg, Maartin, Lise and Jonathan.  I have seen nothing that
> expanded the membership.  The fact that others have been involved with the
> client committee in finalizing the arrangements with Sidley is in my
> understanding simply a result of the fact that ICANN is funding the effort
> and has to be a legal party to the agreement, which you probably understand
> better than me.
>
>
>
> Chuck
>
>
>
> *From:* cwg-stewardship-bounces at icann.org [
> mailto:cwg-stewardship-bounces at icann.org
> <cwg-stewardship-bounces at icann.org>] *On Behalf Of *Robin Gross
> *Sent:* Monday, March 09, 2015 8:01 PM
> *To:* jrobinson at afilias.info
> *Cc:* cwg-stewardship at icann.org
> *Subject:* Re: [CWG-Stewardship] Client Committee
>
>
>
> Thanks, Jonathan.  I'm concerned about inclusion of more ICANN
> representatives than community representatives on the CWG Client Committee:
>
>   https://community.icann.org/display/gnsocwgdtstwrdshp/Client+Committee
>
>
>
> When did CWG decide it would allow 5 ICANN representatives, including 3 of
> ICANN's attorneys on the CWG's Client Committee?  Secretarial support work
> is fine, but actual participation is another thing entirely.
>
>
>
> We are supposed to obtain truly independent legal advice.  So why are we
> re-introducing the conflict we are trying to avoid into the Client
> Committee?
>
>
>
> I suggest a CWG discussion about the appropriateness of ICANN's attorneys
> remaining on the Client Committee going forward.  Now that outside counsel
> has been retained, any need for their involvement to help identify possible
> conflicts has been removed.
>
>
>
> Thanks,
>
> Robin
>
> <image001.png>
>
>
>
>
>
> On Mar 8, 2015, at 3:48 PM, Jonathan Robinson 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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>
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>
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