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

Wed May 2 13:09:22 UTC 2018

I agree with Michael. We can play around with the wording somewhat,
but it's an important issue. DomainNameWire.com had a story that some
might find of interest at:

https://domainnamewire.com/2018/03/29/a-troubling-connection-in-a-udrp/

Sincerely,

George Kirikos
416-588-0269
http://www.leap.com/

On Wed, May 2, 2018 at 8:54 AM, Michael Karanicolas
<mkaranicolas at gmail.com> wrote:
> "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
>>
>>
>>
>>
>>
>>
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>>
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