[CWG-Stewardship] Client Committee

Fri Mar 13 14:52:44 UTC 2015

> It would very helpful once and for all for someone to answer this
question: will ICANN lawyers be
> involved in the ongoing process of getting advice except for having
visibility to the list?  I have been
> assuming not.

Has there been an answer to this yet?

The question was asked first by John Poole on 25 February. Then by me on 2
March. Then by Chuck Gomes on 10 March. Then by Robin Gross on 11 March.
And now again by me on 13 March.

Kieren

On Wed, Mar 11, 2015 at 2:19 PM, Robin Gross <robin at ipjustice.org> wrote:

> I reiterate Chuck's question below.
>
> Thanks,
> Robin
>
> On Mar 10, 2015, at 11:50 AM, Gomes, Chuck wrote:
>
>  It would very helpful once and for all for someone to answer this
> question: will ICANN lawyers be involved in the ongoing process of getting
> advice except for having visibility to the list?  I have been assuming not.
>
>  Chuck
>
>
>  Sent via the Samsung GALAXY S® 5, an AT&T 4G LTE smartphone
>
>
> -------- Original message --------
> From: Kieren McCarthy <kieren at kierenmccarthy.com>
> Date:03/10/2015 2:23 PM (GMT-05:00)
> To: Maarten Simon <maarten.simon at sidn.nl>
> Cc: cwg-stewardship at icann.org
> Subject: Re: [CWG-Stewardship] Client Committee
>
>  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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