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

Wed May 2 12:54:33 UTC 2018

"The Examiners are supposed to declare conflicts of interest, but
there is no instruction on how to implement that."

To me - that's a powerful argument as to why we should be including
these questions. It's an important area where the rules seem vague,
and there could be a need for greater clarity. Questions about whether
or not a strong standard is being carried out in practice would be
very relevant to making that determination.

That said - I do think there's room for improving the verbiage. I
agree that the phrase "actual or potentially adverse" could be deleted
from Q5. I think Q6 could be improved by narrowing it to
communications with a third party related to the dispute.

Best,

Michael Karanicolas

On Wed, May 2, 2018 at 9:28 AM, Nahitchevansky, Georges
<ghn at kilpatricktownsend.com> wrote:
> Dear All:
>
>
>
> Below are the questions being referred to. I likewise object to these
> questions which have an underlying assumption that Panelists are somehow
> biased and don’t screen conflicts properly.  It also assumes that the
> panelists are all attorneys at law firms and the law firms do not have
> proper screening mechanisms for conflicts.  Simply put, most of these
> questions are loaded questions that are meant to further a particular
> agenda.  If we are going to go down the route of these type of loaded
> questions, should we also be asking about attorneys, for example,  who
> represent parties that registered names with bogus contact information
> whether they conducted a thorough check so that they can certify that they
> truthfully identified the party they are representing and how they conducted
> that check (e.g., what mechanisms are in place and all steps taken).  After
> all the ethical rules make clear that attorneys are bound by requirements
> that attorneys be truthful.  In that vein, should we also ask whether the
> attorneys representing parties have been truthful and checked the facts that
> they are stating in their papers – and what steps they take to certify and
> insure this.  I can think of several examples I personally know of where an
> attorney simply lied in the submissions.  Should this now be an entire line
> of inquiry.  Should we ask whether Rule 11 type sanctions be available in
> URS cases where an attorney representing a party is found to represent a
> party with fake contact information or has lied in the papers.  I can think
> of many more loaded lines of inquiries if that what some want to do, but
> ultimately I don’t think these are going to be productive in moving the ball
> forward.
>
>
>
> In light of the questions that were suggested on the provider side of
> things, I think the only issue to raise is whether Panelists are impartial
> per the requirements of the rules and what providers do to make sure that is
> the case – and nothing more, .  These questions should not be here and
> should be deleted in their entirety
>
>
>
>
>
>
>
>
>
> 4.    Do you serve as a URS panelist?
>
>
>
> A. Yes
>
> B. No
>
>
>
> 5. If yes, do you undertake 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?
>
>
>
> A. Yes
>
> B. No
>
>
>
> If yes, please briefly describe the methods used to verify the absence of
> conflicts:___________________________________________________’
>
>
>
> If yes, do you retain records of your search?
>
>
>
> A. Yes
>
> B. No
>
>
>
> 6. Have you ever communicated with a third party regarding an ongoing URS
> dispute in which you were a panelist?
>
>
>
> A. Yes
>
> B. No
>
>
>
> If yes, please briefly explain the nature of such
> communications:_________________________
>
>
>
>
>
>
>
>
>
>
>
> From: gnso-rpm-wg [mailto:gnso-rpm-wg-bounces at icann.org] On Behalf Of Greg
> Shatan
> Sent: Wednesday, May 2, 2018 1:05 AM
> To: Julie Hedlund <julie.hedlund at icann.org>
> Cc: gnso-rpm-wg at icann.org
> Subject: Re: [gnso-rpm-wg] REMINDER: Proposed agenda for RPM Working Group
> call on 25 April 2018 at 1700 UTC
>
>
>
> 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:
>
> Roll call and updates to Statements of Interest (1 minute)
> Final Status of Questions for Practitioners and Providers (9 minutes)
> Report from the Documents Sub Team (20 minutes)
> 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 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
> 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
>
>
>
>
> ________________________________
>
> Confidentiality Notice:
> This communication constitutes an electronic communication within the
> meaning of the Electronic Communications Privacy Act, 18 U.S.C. Section
> 2510, and its disclosure is strictly limited to the recipient intended by
> the sender of this message. This transmission, and any attachments, may
> contain confidential attorney-client privileged information and attorney
> work product. If you are not the intended recipient, any disclosure,
> copying, distribution or use of any of the information contained in or
> attached to this transmission is STRICTLY PROHIBITED. Please contact us
> immediately by return e-mail or at 404 815 6500, and destroy the original
> transmission and its attachments without reading or saving in any manner.
>
> ________________________________
>
> ***DISCLAIMER*** Per Treasury Department Circular 230: Any U.S. federal tax
> advice contained in this communication (including any attachments) is not
> intended or written to be used, and cannot be used, for the purpose of (i)
> avoiding penalties under the Internal Revenue Code or (ii) promoting,
> marketing or recommending to another party any transaction or matter
> addressed herein.
>
> _______________________________________________
> gnso-rpm-wg mailing list
> gnso-rpm-wg at icann.org
> https://mm.icann.org/mailman/listinfo/gnso-rpm-wg