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

Wed May 2 14:38:59 UTC 2018

Sorry but I do not see what you see.

The questions are neutral questions asking for a fact-based reply.  They do
not presume anything.  This is clear from reading the qualifying questions
at issue.

Regarding some panelists not being attorneys, I have several responses.
Primarily, given that the UDRP/URS is founded in legal principles, I
question the use of those without legal training.  Further, conflicts
checking is not limited to attorneys.

Regarding your suggestion that attorneys confirm who they are representing
when domains use false WHOIS data or privacy, rest assured.  There are
plenty of rules and regulations that require an attorney to verify the
identity of clients  the least of which are the regulations concerning
money laundering.

Regarding the fact-checking, I am fine with your suggestion - as long as it
applies to both complainants and to respondents.  Personally, I am troubled
by the fact that representatives can even provide a certification when they
themselves have no personal knowledge.  I presume that allowing such a
process in the UDRP/URS space grew out of the trademark practice (where
providing such certifications to the registration authorities is a common
practice).  However, if you want to change it that is fine with me  as long
as it applies to both sides.

As to the proposal to limit inquiry to those clearly provided under the
rules, that is not consistent with our marching orders.  In fact if we took
that approach to everything we would be left without much to investigate.

To conclude, I would submit that it is really your comments that are the
loaded ones and intended to prevent an inquiry into a legitimate issue.

Paul

From:  gnso-rpm-wg <gnso-rpm-wg-bounces at icann.org> on behalf of Georges
Nahitchevansky <ghn at kilpatricktownsend.com>
Date:  Wednesday, May 2, 2018 at 2:28 PM
To:  Greg Shatan <gregshatanipc at gmail.com>, Julie Hedlund
<julie.hedlund at icann.org>
Cc:  "gnso-rpm-wg at icann.org" <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

> 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 don¹t 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 don¹t 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:___________________________________________________¹
>  
> 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:
>> 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 McElwaine¹s
>> 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_vbPfhKDpjYs66iBWjvwhWFGZbuG
>> pQnOgI/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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