[CWG-Stewardship] Client Committee

Fri Mar 13 18:27:21 UTC 2015

> 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.

So I think we can all agree that ICANN has a right to keep an eye on the
expenditure.

I don't see how that equates to "monitoring activity" however. And I don't
see why ICANN's staff should be given posting rights to the new mailing
list either (or even why a new, new mailing list is even needed).

If your argument is that ICANN needs to monitor expenses, that is very
simple: you can simply instruct the law firm to send ICANN an ongoing tally
of work each week entirely separate from this process.

I imagine this is a fairly common practice in these unusual situations
where the client and the person paying the bills are two different groups.

Kieren

On Fri, Mar 13, 2015 at 8:31 AM, Jonathan Robinson <jrobinson at afilias.info>
wrote:

> 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 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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