[CWG-Stewardship] Client Committee

Fri Mar 13 15:31:27 UTC 2015

Robin, Chuck and others,

Post selection of Sidley, ICANN's lawyers have no active involvement in the
work of the client committee.

Of course, ICANN is picking up the bill and so I fully expect that ICANN
will want to continue to monitor activity and potentially, intervene with
respect to expenditure.

It will be helpful to understand what, if any, expectation they (ICANN
lawyers - in-house or external) have of ongoing involvement in the process
other than for the purposes of monitoring expenditure.

I have asked the question.

Jonathan

From: Robin Gross [mailto:robin at ipjustice.org] 
Sent: 11 March 2015 21:19
To: cwg-stewardship at icann.org
Subject: Re: [CWG-Stewardship] Client Committee

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 SR 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 " <mailto:cwg-client at icann.org> 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 "
<mailto:cwg-client at icann.org> cwg-client at icann.org".

I understand the principle highlighted by Robin below but wonder if, given
that the transparency of the " <mailto:cwg-client at icann.org>
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] 
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] 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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