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

Paul Keating Paul at law.es
Wed May 2 17:33:44 UTC 2018


There is no bias in the questions.

The last time I responded to a conflicts/know your client question was last
week in a response to my bank.  I must also stand ready to provide them to
governmental and other agencies (including the bar associations where I am a
member).

Conflicts to appear as a representative.  This is a rather silly question
don¹t you think?  When I represent a client, my obligation regarding
conflicts extends to my current client and any other past or present client.
I have no conflict of interest obligation to parties adverse to the
interests of my client because I am inherently in conflict with their
interests (I represent my client, not them).

Conversely, if I am a panelist my obligation extents to the system, the ADR
provider and the parties to the proceeding.

Panelists are not ³judges².  Judges are either vetted via election our
appointment.  Their appearance in any case is closely monitored and they are
ethically and legally bound to disclose any potential conflict.  In fact, in
the US they are required to avoid the ³appearance² of impropriety.  Their
failure to disclose or self-disqualify leads to appeals and discipline.
Even so, there is a history of successful appeals as a result of a failure
to disclose.  There is no such process for panelists and personally I am
unwilling to NOT investigate this issue.

I am not trying to prove a point.  I am merely asking questions.  If there
is no problem there is no problem.  If there is, it must be addressed.  I
grow concerned about people trying to shut down discussions and
investigations.  They are usually trying to hide something.

Sincerely,

Paul Raynor Keating, Esq.

Law.es <http://law.es/>

Tel. +34 93 368 0247 (Spain)

Tel. +44.7531.400.177 (UK)
Tel. +1.415.937.0846 (US)

Fax. (Europe) +34 93 396 0810

Fax. (US)(415) 358.4450

Skype: Prk-Spain

email:  Paul at law.es

 

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From:  Georges Nahitchevansky <ghn at kilpatricktownsend.com>
Date:  Wednesday, May 2, 2018 at 6:51 PM
To:  Paul Keating <paul at law.es>, Greg Shatan <gregshatanipc at gmail.com>,
Julie Hedlund <julie.hedlund at icann.org>
Cc:  "Corwin, Philip via gnso-rpm-wg" <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

> Paul:
> 
> Your questions are loaded questions that have a bias that panelists are not
> properly vetting conflicts.  As a California attorney you know fully well that
> your questions go well beyond the norm.  When was the last time you were asked
> to detail your conflict procedures -- apart from when there is an actual
> challenge by a party claiming a conflict of interest.  By the same token as an
> attorney representing parties in URS and UDRP proceedings you must have done a
> conflict check.  Should we be looking into what all parties do in regards to
> conflict checks.  Attorneys are not asked because they are are covered by an
> ethical obligation and unless someone challenges on the ground of conflict it
> is presumed that they did a proper check.  Similarly, Judges all over the
> world are presumed to have done a conflict check and to recuse themselves if a
> conflict exists.  When is the last you asked a judge to explain what they did
> and what procedures they have in place before taking on a case. You presume
> they conducted a proper check and challenge if you believe a conflict of
> interest.  The same should apply in the URS context. URS panelists should not
> be put into a separate category that goes beyond what attorneys and judges do.
> The panelists typicallly attest to the fact that they have no conflict.  If
> someone feels otherwise, they can always challenge the panelist appointment.
> 
> The bottom line is that this entire issue you are trying to inject here is
> part and parcel of some notion that panelists are not acting in an impartial
> manner ias required by the URS rules.  The questions of such whether panelists
> are acting impartially should be directed to the providers, who can answer
> more appropriately on this issue and what they require of panelists.
> 
> One other basic problem with your questions, is that many answers will be
> meaningless as they will simply be yes we have appropriate procedures in
> place.  You may get a handful of more detailed responses, but then we will be
> arguing for months on end about whether procedures are sufficient or not etc.
> We are not here to rewrite the procedures firms take to run conflict checks.
> Again, the issue is about having impartial panelists and what steps are taken
> to make sure that is the case.  As in my judge example above, if you were
> going to go down this path of inquiry you would ask a judicial commission to
> advise on what they do to have impartial judges.  That is the more relevant
> and productive inquiry.  So again I stress that these questions should be
> removed.
> 
> Lastly, I am glad you agree that there should be ramifications for attorneys
> or others acting for parties for filing false statements, supporting parties
> that hide behind bogus contact information, or fail to disclose their own
> interests in a matter. Maybe we should ask practitioners if they feel their
> should be meaningful sanctions for such behavior and the type of sanctions.
> 
> From: Paul at law.es
> Sent: May 2, 2018 10:39 AM
> To: ghn at kilpatricktownsend.com; gregshatanipc at gmail.com;
> 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
> 
> 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_vbPfhKDpjYs66iBWjvwhWFGZbu
>>> GpQnOgI/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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