The need and choice will vary by situation. Abstractly-defined "defaults" are worthless and counterproductive. If we need some information or background on ICANN-specific matters, we have received that from, and would continue to get that from, ICANN legal. When it comes to advice, it's most likely a different matter. Advice is given in the context of an attorney-client relationship where the attorney considers the position, interests and goals of their client and acts in accordance with those and their duty to that client. Advice and interpretation will vary depending on who your client is and what their concerns and desired outcomes are. In these cases, I think (without making it a default) we are much more likely to turn to our independent outside counsel. Indeed, I'm hard-pressed to think of situations in which we wouldn't. Drafting documents is a third situation, and the "back-and-forth" method used on the legal documents to date is probably the only sensible way to deal with that (no matter who drafts first). That said, I'm all in favor of fiscal restraint. There are a number of ways we can make our use of counsel cost-effective without turning to the counsel to the corporation we are trying to hold accountable. I'm quite certain that our counsel at Sidley and Adler have a number of ideas about how we can contain costs, especially after having worked with us for so long. We should invite them to provide written and oral suggestions on that subject, as soon as possible. Finally, if anyone has forgotten why we strongly felt the need for independent counsel at the beginning of this journey, please go back and read the materials from that time. If you disagreed then, and disagreed now, just say so, but let's not rehash. If someone who thought we needed independent counsel then thinks the circumstances have so drastically changed that we no longer need independent counsel, that might be an interesting point for discussion. The rest of this is just going around in circles.... Greg On Fri, Jul 15, 2016 at 2:44 PM, Rudolph Daniel <rudi.daniel@gmail.com> wrote:
There would seem to be an issue with "default" is there any substantive difference if we consider independent legal council "default" with the availability of icann inhouse legal services to compliment . That would also suggest the need for fiscal restraint rd
Rudi Daniel *danielcharles consulting <http://www.facebook.com/pages/Kingstown-Saint-Vincent-and-the-Grenadines/DanielCharles/153611257984774>*
On Fri, Jul 15, 2016 at 2:14 PM, Seun Ojedeji <seun.ojedeji@gmail.com> wrote:
Hello,
By default means always considering use of ICANN legal staff first before going independent. I don't think this should require a dialout as I think we all agree that CCWG should have access to independent legal whenever required.
Regards Sent from my LG G4 Kindly excuse brevity and typos
On 15 Jul 2016 19:00, "farzaneh badii" <farzaneh.badii@gmail.com> wrote:
No. Using the independent legal advisers *responsibly* does not mean that we have to have a default approach.
I wonder what the next steps would be on this issue. Perhaps co-chairs can help us on this ? Are we going to have a call and discuss this and come up with a solution?
On 15 July 2016 at 19:46, Seun Ojedeji <seun.ojedeji@gmail.com> wrote:
+1 on ensuring access to independent legal adviser whenever required by CCWG. This would imply referring to internal legal(staff) by default and then call for independent legal advice whenever the group sense there is need for clarification (or when the issues at hand is warranted).
Regards Sent from my LG G4 Kindly excuse brevity and typos
On 15 Jul 2016 13:19, "James M. Bladel" <jbladel@godaddy.com> wrote:
Agree with Keith.
CCWG must preserve the use of independent legal advisors, but use this responsibly, and with an eye on controlling costs. Ultimately, it is gTLD registrants picking up the bill, and we need to ensure that this work is mindful of their interests.
Thanks—
J.
From: <accountability-cross-community-bounces@icann.org> on behalf of Keith Drazek <kdrazek@verisign.com> Date: Thursday, July 14, 2016 at 16:53 To: Phil Corwin <psc@vlaw-dc.com>, Matthew Shears <mshears@cdt.org>, Greg Shatan <gregshatanipc@gmail.com>, Robin Gross < robin@ipjustice.org> Cc: Accountability Cross Community < accountability-cross-community@icann.org> Subject: Re: [CCWG-ACCT] Proposed Agenda CCWG ACCT Meeting - 12 July 2016 @ 20:00 UTC
Agreed. Access to independent legal advice was never in question.
That said, in the interest of controlling costs, I have no problem seeking input from ICANN’s internal lawyers on issues that are deemed non-contentious or where potential conflicts do not exist.
I am obligated to report that the Registries Stakeholder Group is very, very concerned about the cost of legal fees from WS1 and wants to ensure the CCWG is efficient with its future spending. I know we’re developing cost-control mechanisms for WS2, and I’ve advised my SG accordingly, but this will continue to receive attention from the RySG.
Holly’s question and the response about budgeting vis-à-vis ICANN’s outside counsel was instructive. Any and all outside counsel expenses will require certification.
So, let me reiterate my view…the CCWG must have access to independent legal advice. We must ensure costs are controlled and resources are used efficiently. If that means selectively turning to ICANN’s lawyers on occasion, I can and do support that, but not at the expense of our ability to seek independent advice.
Regards, Keith
*From:* accountability-cross-community-bounces@icann.org [ mailto:accountability-cross-community-bounces@icann.org <accountability-cross-community-bounces@icann.org>] *On Behalf Of *Phil Corwin *Sent:* Thursday, July 14, 2016 5:34 PM *To:* Matthew Shears; Greg Shatan; Robin Gross *Cc:* Accountability Cross Community *Subject:* Re: [CCWG-ACCT] Proposed Agenda CCWG ACCT Meeting - 12 July 2016 @ 20:00 UTC
Access to independent legal advice for WS2 issues is fundamental and should be non-negotiable
Use your power, Empowered Community
Philip S. Corwin, Founding Principal Virtualaw LLC 1155 F Street NW Suite 1050 Washington, DC 20004 202-559-8597/Direct 202-559-8750/Fax 202-255-6172/Cell
Twitter: @VlawDC
"Luck is the residue of design" --- Branch Rickey
*From:*mshears@cdt.org
*Sent:*July 14, 2016 5:26 PM
*To:*gregshatanipc@gmail.com; robin@ipjustice.org
*Cc:*accountability-cross-community@icann.org
*Subject:*Re: [CCWG-ACCT] Proposed Agenda CCWG ACCT Meeting - 12 July 2016 @ 20:00 UTC
+ 1 well said Robin.
On 14/07/2016 03:20, Greg Shatan wrote:
Robin,
Agree 100%.
Greg
On Wednesday, July 13, 2016, Robin Gross <robin@ipjustice.org> wrote:
It is simply a non-starter to suggest that CCWG would lose its right to independent counsel at this stage. I am struggling to understand *where* the suggestion to start this debate all over again even came from. We have very important issues on our agenda for WorkStream 2 that require independence of legal advice: transparency of board deliberations, reforming the DIDP, the CEP, etc., which all involve trying to reform the policies that were created by the in-house legal dept. It is silly to suggest that we must seek the legal advice from those who created the policies we are trying to reform as that would be counter-productive to our goals.
Additionally it was revealed in yesterday’s calls, that ICANN’s legal dept fees will be added to the CCWG’s independent fees, so CCWG will be billed for the in-house efforts to resist our reforms (and we won’t be given access to the legal advice that we would be paying for). I think it is extremely important the legal fees NOT be conflated together. We need to understand what the separate costs are, and we cannot be held responsible for spending on Jones Day that is outside of our control. Fees that ICANN corporate undertakes must be separated from fees that CCWG undertakes or the proposed budget process makes absolutely no sense, unless it was intended to tie CCWG’s hands and give ICANN corporate a blank check to spend resisting our reforms.
This is an important issue that we cannot roll over on, or everything else we try to do from here on out will be of questionable value. This settled debate should not be re-opened, despite the huge win for ICANN corporate if were to succeed in over-turning this group’s previous decision on this critical matter of independence of legal advice.
Thanks, Robin
On Jul 13, 2016, at 2:06 PM, Niels ten Oever < lists@nielstenoever.net> wrote:
Also +1 to Greg and +1 to James
On 07/13/2016 10:50 PM, Dr. Tatiana Tropina wrote: > Thanks, Greg. +1. Fully agree. > > CCWG shall retain the ability to ask for independent advice. Also agree > that continuing with Sidley Austin and Adler & Colvin is the best option. > > + 1 also to James previous email about not reopening the debate. > > Best, > > Tanya > > > On 13/07/16 22:42, Greg Shatan wrote: >> Siva, >> >> The reasons are all in the record. Please go back and read all of the >> materials and discussions relating to our desire and choice to hire >> independent counsel. If you have any specific questions after that, >> please ask them. >> >> I will briefly say the following: >> >> 1. This has nothing to do with competence, although being generally >> competent and competent in a specific area are two different things. >> >> 2. Where we needed first-hand knowledge or history, we've turned to >> ICANN legal as one source for such things. That won't change. Advice >> is another thing entirely. >> >> 3. Ask yourself "Who is ICANN legal's client?" and you will have >> answered your own question. >> >> Greg >> >> On Wednesday, July 13, 2016, Sivasubramanian M < isolatedn@gmail.com >> <mailto:isolatedn@gmail.com>> wrote: >> >> Greg, >> >> How valid are your assumptions? What are the reasons for this >> unwillingness to make use of ICANN Legal, who are competent, have >> first hand knowledge and a complete understanding of the legal >> nuances on matters concerning ICANN, may I ask? Saves money on >> most matters requiring legal advice, and should there be areas >> that require specialized advice, we could seek external advice. >> >> >> On Thu, Jul 14, 2016 at 12:28 AM, Greg Shatan >> <gregshatanipc@gmail.com >> <javascript:_e(%7B%7D,'cvml','gregshatanipc@gmail.com');>> wrote: >> >> I object, and I think many others objected, to the idea that >> advice from inhouse (i.e., ICANN legal) should be the >> "default." We retained independent counsel to the CCWG for >> good reason >> s >> >> >> >> and those reasons are still applicable today. I hope we don't >> need to rehash that. >> >> We need the continued ability and discretion to go directly to >> CCWG's counsel. Requesting inhouse to solicit an opinion from >> an external counsel is not only "cumbersome," it's absolutely >> antithetical to the relationship between CCWG and its >> independent counsel. >> >> I strongly believe that the "default" must be the status quo, >> i.e., that the CCWG (through reasonable processes) has the >> ability and discretion to turn to its own counsel. Further, I >> strongly believe that CCWG's independent counsel must remain >> Sidley Austin and Adler & Colvin. They have been up a >> tremendous learning curve and worked with us every step of the >> way. It would be folly to cast that aside. It's worth noting >> that Sidley is a full-service law firm with offices outside >> the US in Beijing, Brussels, Geneva, Hong Kong, London, >> Munich, Shanghai, Singapore, Sydney and Tokyo. I'm confident >> that Sidley (and Adler) will (a) tell us when they don't have >> the expertise to help us, and (b) work with us on working >> methods to make our use of the firms more cost-effective. >> >> Greg >> >> On Tue, Jul 12, 2016 at 9:22 PM, Rudolph Daniel >> <rudi.daniel@gmail.com >> <javascript:_e(%7B%7D,'cvml','rudi.daniel@gmail.com');>> wrote: >> >> Based on comments on the call today, IMO; A good body of >> knowledge was accquired on the subject of legal requests >> in wg1. WG2 legal resources would be both inhouse and >> external, from start, We should be much more efficient >> this time around. Each sub however will have their needs >> and there may be requests applicable across the subgroups >> and/or specific to a subgroup. >> So, that suggests close relationship between budget >> control and the former legal request team [reconfigured >> and/or augmented] who would have to coordinate requests >> across ws2 sub >> groups as i see it. >> What determines the initial choice inhouse/external >> resources may be a matter of consensus, but it may be >> prudent to consider the process as [default] inhouse with >> the flexible and necessary option of external sources by >> consensus [as the fog clears so to speak]. I think it may >> be cumbersome to request inhouse to solicit an opinion >> from an external, because there may arise an instance >> where; on the strength of an opinion, [inhouse or >> external] ; a wg2 may wish to reframe and seek >> alternative advise elswhere. >> rd >> >> >> >> Rudi Daniel >> /danielcharles consulting >> < http://www.facebook.com/pages/Kingstown-Saint-Vincent-and-the-Grenadines/Dan... / >> * >> * >> >> >> On Tue, Jul 12, 2016 at 7:21 PM, Vinay Kesari >> <vinay.kesari@gmail.com >> <javascript:_e(%7B%7D,'cvml','vinay.kesari@gmail.com ');>> >> wrote: >> >> Dear all, >> >> I was unfortunately unable to join the call as I was >> on a flight at the time, my apologies. I've just had a >> chance to catch up on the Adobe Connect recording, and >> I'm happy to reconfirm my willingness and availability >> to serve as a rapporteur. Also, I agree with the >> thrust of Kavouss' comment at 0:24:30, and affirm my >> commitment to serve impartially. I look forward to >> working with Greg on the jurisdiction subgroup. >> >> Separately, on the issue of allocation of legal >> requests, I agree that we need further discussion, and >> endorse creating an Option 3 based on the points made >> and the specific requirements of the different WS2 >> subgroups. >> >> Regards, >> Vinay >> >> >> On 12 July 2016 at 20:55, Mathieu Weill >> <mathieu.weill@afnic.fr >> <javascript:_e(%7B%7D,'cvml',' mathieu.weill@afnic.fr');>> >> wrote: >> >> Dear Colleagues, >> >> >> >> Attached is a short set of slides to support our >> discussion on agenda item #4 >> >> >> >> Talk to you in a few hours >> >> Mathieu >> >> >> >> *De :* accountability-cross-community-bounces@icann.org >> <javascript:_e(%7B%7D,'cvml',' accountability-cross-community-bounces@icann.org');> >> [mailto: accountability-cross-community-bounces@icann.org >> <javascript:_e(%7B%7D,'cvml',' accountability-cross-community-bounces@icann.org');>] >> *De la part de* MSSI Secretariat >> *Envoyé :* lundi 11 juillet 2016 19:46 >> *À :* CCWG-Accountability >> *Objet :* [CCWG-ACCT] Proposed Agenda CCWG ACCT >> Meeting - 12 July 2016 @ 20:00 UTC >> >> >> >> Good day all, >> >> In preparation for your call, CCWG Accountability >> WS2 Meeting #2 >> <https://community.icann.org/x/FyOOAw>– Tuesday, >> 12 July @ 20:00 – 22:00 UTC. Time zone converter >> here >> < http://www.timeanddate.com/worldclock/fixedtime.html?msg=CCWG+Accountability...
>> >> >> *Proposed Agenda:* >> >> 1. Welcome, SOI >> >> 2. >> Articles of Incorporation : finalize submission >> >> 3. >> Appointment of rapporteurs for WS2 – next steps >> >> 4. >> Legal Cost Control Mechanism : initial discussion >> >> 5. AOB >> >> 6. Closing >> >> >> >> *Adobe Connect: >> *https://icann.adobeconnect.com/accountability/ >> <https://icann.adobeconnect.com/accountability/
>> >> >> >> Thank you! >> >> >> >> With kind regards, >> >> Brenda Brewer >> >> MSSI Projects & Operations Assistant >> >> ICANN-**Internet Corporation for Assigned Names >> and Numbers >> >> >> >> >> _______________________________________________ >> Accountability-Cross-Community mailing list >> Accountability-Cross-Community@icann.org >> <javascript:_e(%7B%7D,'cvml',' Accountability-Cross-Community@icann.org');> >> https://mm.icann.org/mailman/listinfo/accountability-cross-community >> >> >> >> _______________________________________________ >> Accountability-Cross-Community mailing list >> Accountability-Cross-Community@icann.org >> <javascript:_e(%7B%7D,'cvml',' Accountability-Cross-Community@icann.org');> >> https://mm.icann.org/mailman/listinfo/accountability-cross-community >> >> >> >> _______________________________________________ >> Accountability-Cross-Community mailing list >> Accountability-Cross-Community@icann.org >> <javascript:_e(%7B%7D,'cvml',' Accountability-Cross-Community@icann.org');> >> https://mm.icann.org/mailman/listinfo/accountability-cross-community >> >> >> >> _______________________________________________ >> Accountability-Cross-Community mailing list >> Accountability-Cross-Community@icann.org >> <javascript:_e(%7B%7D,'cvml',' Accountability-Cross-Community@icann.org');> >> https://mm.icann.org/mailman/listinfo/accountability-cross-community >> >> >> >> >> -- >> Sivasubramanian M < https://www.facebook.com/sivasubramanian.muthusamy> >> >> >> >> _______________________________________________ >> Accountability-Cross-Community mailing list >> Accountability-Cross-Community@icann.org >> https://mm.icann.org/mailman/listinfo/accountability-cross-community > > > > _______________________________________________ > Accountability-Cross-Community mailing list > Accountability-Cross-Community@icann.org > https://mm.icann.org/mailman/listinfo/accountability-cross-community >
-- Niels ten Oever Head of Digital
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