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

Kathy Kleiman kathy at kathykleiman.com
Wed May 2 13:08:15 UTC 2018


Hi All,

Perhaps Greg or Staff could post the questions that Greg has raised as 
an issue in the Practitioners questionnaire (since they are not attached 
here)?  It is of course important to consider the Subteam review, but we 
also brought these questions to the full WG for a reason - to request input.

I don't remember who proposed the Examiner questions, but perhaps they 
could go offline with the Practitioners Subteam to work out a variation 
that would be acceptable to everyone. Staff, do you remember?

I am sure we can work this out with a little discussion...

Best regards, Kathy


On 5/2/2018 1:04 AM, Greg Shatan wrote:
> 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 <mailto: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
>
>
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>
>
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