[gnso-rpm-wg] REMINDER: Proposed agenda for RPM Working Group call on 25 April 2018 at 1700 UTC

[Greg Shatan]

All,

I have significant objections to the questions to Examiners that were
tacked on to the end of the Practitioners questionnaire at the 11th hour.
Apologies for not focusing on this before now.  I don't believe these have
really been properly reviewed or discussed.

I believe these questions are inappropriate in a poll of practitioners, as
these are questions directed to "panelists."   (The proper term is
Examiner....) It feels like a "bait and switch" tactic.  If we are going to
survey Examiners, let's survey Examiners -- not ambush practitioners.  On
that basis alone, we should eliminate these questions.

I am also troubled by the questions themselves.  Singling out these
questions, out of all that we might ask Examiners, seems vaguely
accusatory.

The basis for these questions is questionable.  I've reviewed the URS
Procedures and Rules, and none of these questions comes out of a Procedure
or Rule.  The Examiners are supposed to declare conflicts of interest, but
there is no instruction on how to implement that.  As such, there is no
requirement that an Examiner undertake any type of conflicts check much
less something as specific as "a law firm-wide conflicts check to verify
that neither you nor your law firm has any actual or potentially adverse
conflict of interest to the complainant and/or respondent."  Asking the
question implies that this is an imperative when it is not.

On top of that, this verbiage does not accurately describe a conflict
check.  What is a "potentially adverse conflict of interest"? Why is it
only asking about adverse conflicts?  I note that the Forum does have a
Supplementary Rule that "A Examiner will be disqualified if circumstances
exist that create a conflict of interest or cause the Examiner to be unfair
and biased, including but not limited to ...  The Examiner has served as an
attorney to any party or the Examiner has been associated with an attorney
who has represented a party during that association."  This does not ask
the Examiner to run a conflict check, but notably, the issue it raises is
the exact *opposite* of the issue implied in these proposed questions --
the Forum is highlighting representing a party, not being adverse (much
less "potentially adverse) to a party.

Now, I'm not saying it's a bad idea for an Examiner to run a (properly
defined) conflict check, but the very fact that we are debating Examiner
actions and requirements in a practitioners poll should tell us we're in
the wrong place.

For that reason, I will not discuss the problems in the follow-up questions
on conflict checks.

The final question is even worse. ("Have you ever communicated with a third
party regarding an ongoing URS dispute in which you were a panelist?')  As
far as I know, this is not prohibited behavior, especially not this broadly
described.  It seems designed to make people feel like they might have done
something wrong.  (If this is expressly prohibited by the Rules or
Procedures, then perhaps we could fashion a question out of that
Rule/Procedure *if we were putting together a poll for Examiners*.)  Is it
improper to "communicate" with your spouse about a URS case?  With one of
your law partners? With a fellow Examiner?

Long story short, these questions should be deleted.

Greg


On Tue, May 1, 2018 at 10:15 AM, Julie Hedlund <julie.hedlund at icann.org>
wrote:

> Dear RPM PDP WG members,
>
>
>
> Per the WG Co-Chairs, here is the proposed agenda for the Working Group
> call Wednesday, 02 May 2018, scheduled for 1700 UTC.  Times are proposed as
> estimates and may be adjusted.
>
>
>
> Proposed Agenda:
>
>    1. Roll call and updates to Statements of Interest (1 minute)
>    2. Final Status of Questions for Practitioners and Providers (9
>    minutes)
>    3. Report from the Documents Sub Team (20 minutes)
>    4. Discussion on URS Phase II proposal (59 minutes)  See John
>    McElwaine’s original email at: http://mm.icann.org/pipermail/
>    gnso-rpm-wg/2018-April/002857.html
>    <http://mm.icann.org/pipermail/gnso-rpm-wg/2018-April/002857.html> and
>    a Google Sheet with the proposal as tab one, and the responses as tab two
>    at: https://docs.google.com/spreadsheets/d/1apbVrFayn_
>    vbPfhKDpjYs66iBWjvwhWFGZbuGpQnOgI/edit?usp=sharing
>    <https://docs.google.com/spreadsheets/d/1apbVrFayn_vbPfhKDpjYs66iBWjvwhWFGZbuGpQnOgI/edit?usp=sharing>
>    5. Notice of agenda for 09 May meeting (1 minute)
>
>
>
> Best regards,
>
> Mary, Julie, Ariel and Berry
>
>
>
>
>
> _______________________________________________
> gnso-rpm-wg mailing list
> gnso-rpm-wg at icann.org
> https://mm.icann.org/mailman/listinfo/gnso-rpm-wg
>
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