[Ws2-transparency] Discussion Thread: Transparency for ICANN Legal

[McAuley, David]

Thank you for this Michael, and thanks also to the students, Patrick and Ailsa, who did this work.

I have some comments/questions – and in summary, now that ICANN has commented, would not support restricting attorney-client privilege at ICANN.

First, a point of clarification. Is our proposal limited to waiving in-house counsel privilege? That doesn’t seem clear even though the proposal does address “attorneys at ICANN.” I think it would be good to clarify that the proposal is limited in this respect to in-house counsel privilege now that the research has been done in that context.

Next, I think ICANN made an important statement in its comments when it noted that it is neither a government nor a large intergovernmental organization despite us treating it along those lines – and it made an important observation that some of the recommendations “could impose costs, or otherwise result in unintended effects on ICANN”.

As for unintended effects - ICANN remains a California company and as such, retains broad protections from disclosure of its attorney-client communications.  Limiting these protections will in the end harm the company more than help the community, in my opinion. This is because the privilege is intended to promote frank discussions between a client and counsel to promote compliance with the law.  A corporation worried about public disclosure of such frank discussions will inevitably suffer a chilling effect on its communications with counsel. In the end, such a chilling effect is adverse to the goal of compliance with the law.

As for costs - if we maintain the proposed restrictions on in-house counsel privilege for ICANN, and if ICANN does not agree, would the potential for such restrictions not inadvertently increase ICANN’s cost of doing business? Why wouldn’t it simply rely on Jones-Day for all legal advice, and move their legal department into the firm at great expense? If this is important enough that might make sense to them – and then, further following the law of unintended consequences, even the ECJ’s Alzo decision may no longer apply.

Best regards,
David

David McAuley
Sr International Policy & Business Development Manager
Verisign Inc.
703-948-4154

-----Original Message-----
From: ws2-transparency-bounces at icann.org [mailto:ws2-transparency-bounces at icann.org] On Behalf Of Michael Karanicolas
Sent: Monday, May 29, 2017 3:12 PM
To: ws2-transparency at icann.org
Subject: [EXTERNAL] [Ws2-transparency] Discussion Thread: Transparency for ICANN Legal

Hi all,

Following up on last week's call, I have written to ICANN Legal to request more information about areas that could be opened up. Just as a reminder, our current Recommendation is that the DIDP policy be tweaked so that attorney-client privilege should only be invoked if it relates to information whose disclosure would be harmful to an ongoing or contemplated lawsuit or negotiation, and explicitly mandate the disclosure of broader policy-making advice received from lawyers.

I am attaching a short backgrounder that I had a couple of my students draft up, to sort of kick off discussions. It would be helpful if, moving forward from this, we could brainstorm some areas of information that people would be interested in seeing disclosed. Any ideas or thoughts would be very welcome.

Best,

Michael