Re: [CCWG-ACCT] Who is managing the lawyers and what have they beenasked to do?

July 7, 2015

      Hi Avri,

Thank you very much for your comprehensive response. It's very helpful. I
need to think about it and evaluate things before responding.

Again, thanks for making the effort so I better understand your views and
can challenge my own.

Ed

On Tue, Jul 7, 2015 at 12:52 PM, Avri Doria <avri@acm.org> wrote:
...
Hi,
To start,  I believe that facts are just things that people believe to
be the case.  I try not to speak of anything stronger that a belief.
Both my personal history and world history, even history of science -
that bastion of fact, shows me that yesterday's Fact is often just a
matter of prejudice, superstition and point of view.
In terms of the accountability problem with the membership model, it has
been discussed before.  Fairly extensively. Some of the gaps such as
those exposed by the UA have been eliminated, but others have not.  Some
involve the degree to which the various SOAC are really the solid
organizations we portray.  As I wrote in an earlier message where i
spoke of the SOAC themselves:
...
Having been a member or observer of many of these entities I have fond
that they are often disorganized, ruled by a few strong personalities in
a sea of apathy, and given to making up rules on the fly when needed.
They do not even necessarily follow the rules they have agreed to in the
charters, though some do, not all of them.  And for the most part, though
they are supposed to transparent, most aren't.
Are these structures really fit of unchecked rule?  How can we show that?
For me the primary deficit is the loss of checks and balances.
The current system relies on a set of checks and balances between the
Board and the rest of the community.  The current problem is that the
power of the rest of the community seem too weak to many, allowing the
Board to seemingly work  without any checks on its activities.
By strengthening the community in the designator model, we strengthen
the set of checks and balance between the Board and the rest of the
community.   By doing so, we increase accountability.
There is a reciprocity in this notion of accountability, one that does
not require external oversight. We vote them in,  can appeal the board
in a serious manner and will  even be able to  vote them out by some yet
to be determined procedure.  And the Board, can review the degree to
which the stakeholder groups are fulfilling their mandate to represent
the larger community within the ICANN mission.  In a sense there is
mutual reciprocal oversight. The Board and the rest of the community
check each other and establish a functional balance.  Most of the this
CCWG's activities are working on the details of these check and balances.
That is other than the grand reorganization of ICANN into a membership
organization.  Something that leaves the current check and balances
behind and attempts to create a major new structure.
In the designator model the Board can make decisions and we can appeal
them. And we make recommendations and give advise the Board needs to
give it serious consideration on penalty of appeal. In extreme case they
can be removed from their duties and we can be subjected to  discussions
of reorganization.
Going to the membership model eliminates this balance by giving the
putative community representatives supreme power.  How can that power be
appealed?  Can membership decisions be appealed, by whom and to whom?
Who determines whether the ACSO are adequately representing the global
community and living up to their obligations under the bylaws?
Membership turns the Board into an administrative unit without
sufficient power to act as a check or balance to  the ACSOs.
Eliminating any checks and balances on the ACSO from the accountability
equation seems to be a critical failure to me in the creation of a new
accountability regime.  Perhaps if we were going with the individual
membership option a degree of accountability to global members could be
argued, not sure.  But I believe  that is not what we are working on as
that would involve even greater difficulty to get right. We are not even
working on a model where organizations that exist on their own come
together to form a group.  Our ACSO are artificial organizations created
by and within ICANN.  Our multistakeholder model depends on the
interaction and interplay of these organization with the Board and on
the checks and balances between them.
Perhaps you have 'fact based' responses to all the possible
accountability questions that NTIA might ask us about this new power
structure you favor.  I do not believe that you can show how the ACSO
will be responsible to the global Internet community.  I do not believe
you can show how a rogue set of ACSO can be stopped from doing things
that harm the organizations or the Internet without allowing the Board
some degree of decision making based on the confluence of
recommendations and advice received from the various ACSO and the
greater community.
As was stated in the call by NTIA, it was up to us to show how anything
new we created could be held accountable.  As far as I can tell in
membership there is no way to hold the members accountable.  In the
designator model we show how we are adding accountability measures.  In
the membership model we require the ACSO to verify their own
representativity, but I have seen no expression of how they can do that
or show that it is the case.  When I speak of having a "much higher
threshold" in proving ACSO accountabilty to the global public interest,
this is what I mean. How are you going to prove, as you say - with the
facts that you believe in, that the membership model is more accountable
given its unassailable postion in a membership organization.
I have seen no evidence of membership creating greater accountability to
the global public interest.  I cannot state that I believe it is
impossible for it to do so, just that I have seen no evidence of it.
avri
On 06-Jul-15 21:01, Edward Morris wrote:
...
Hello Avri,
I believe membership raises the issues of accountability to the full
    diversity of stakeholders to a much higher threshold, including the
    issue of the degree to which ICANN is accountable to stakeholders not
    included among our SG/C/RALO/ALS / as well as among parrticpating CCs
    and govts.
Please, if possible, raise your concerns stating fact rather than
belief. Maybe there is something I have missed. There is absolutely no
difference in the openness to non ICANN stakeholders between the
empowered membership and empowered designator models. At least I don't
see any. Both are based upon the current SOAC's. If there is a
difference in this area  I need to and want to be educated. Please
respond with specific and detailed instances or examples of why what
you claim is true is. Vague generalities are not particularly helpful.
Again, I am open to be educated and persuaded but with substantive
fact rather than vague as yet unsubstantiated beliefs.
No model is as open to non SOAC's as is Malcolm's proposal for
individual membership. That, again, is a membership model. Do you
support this open membership model and if not why not? Would you
prefer other models to be looked at that are not based upon the
SOAC's? I think that would be a very reasonable position and one I
certainly am open to supporting if a workable model would be proposed.
As yet I have not seen one. Have you? Should we try to find one?
I think enough of the comments bring out questions of
    accountability in
    a mebership organization to make the membership option less than
    optimal.
What comments are you referring to? Certainly not the public comments
which were basically supportive of membership. Are these comments you
refer to  based upon vague generalities or specific problems? If there
are specific problems what specifically are they? Should we not
determine whether there are solutions to those problems rather than
just dismissing the model outright? If not, what are your views as to
the ultimate apparent unenforceability of the designator model in
certain areas? Do you disagree with Paul Rosenzweig when he states
that "a direct community veto of budget and strategic plan remains
essential to accountability"? If not, what do you propose to do in
these areas without membership. Should we simply forget them?
I do think there may be another option or two out there and hopefully
working with our counsel we'll find them.
In the interim,  I really am looking to be educated. No one has taught
me more about ICANN since I became involved in it than you Avri. I'm
just not easily persuadable by vague opinions, I'm a fact based sort
of guy. As this process has moved forward I've seen your views and
positions change. To me, that is an admirable  sign of someone truly
looking for an optimal answer rather than one who is clinging to a
defined position. I'm just having some trouble understanding,
factually,  the specific objections you are now raising about
membership. I hope you can help me understand so I can better test and
evaluate my own views..
Thanks,
Ed
On 06-Jul-15 19:05, Edward Morris wrote:
    > +1. Well said.
    >
    >
    > On Mon, Jul 6, 2015 at 9:04 PM, Jonathan Zuck
    <JZuck@actonline.org <mailto:JZuck@actonline.org>
    > <mailto:JZuck@actonline.org <mailto:JZuck@actonline.org>>> wrote:
    >
    >     Hmm. I think it’s important to bear in mind that there was
    >     overwhelming consensus among the public comments to support the
    >     membership model. The detractors from the model, while
important
    >     and perhaps critical, are not in the majority. I’m not sure
this
    >     process speaks to how we better use counsel as much as how we
    >     achieve consensus on principles.
    >
    >
    >
    >
    >
    >
    >     *From:*accountability-cross-community-bounces@icann.org
    <mailto:accountability-cross-community-bounces@icann.org>
    >     <mailto:accountability-cross-community-bounces@icann.org
    <mailto:accountability-cross-community-bounces@icann.org>>
    >     [mailto:accountability-cross-community-bounces@icann.org
    <mailto:accountability-cross-community-bounces@icann.org>
    >     <mailto:accountability-cross-community-bounces@icann.org
    <mailto:accountability-cross-community-bounces@icann.org>>] *On
    >     Behalf Of *Seun Ojedeji
    >     *Sent:* Monday, July 6, 2015 3:50 PM
    >     *To:* Becky Burr
    >     *Cc:* accountability-cross-community@icann.org
    <mailto:accountability-cross-community@icann.org>
    >     <mailto:accountability-cross-community@icann.org
    <mailto:accountability-cross-community@icann.org>>
    >     *Subject:* Re: [CCWG-ACCT] Who is managing the lawyers and what
    >     have they beenasked to do?
    >
    >
    >
    >     Hi Becky,
    >
    >     Thanks for asking, item 3 is actually in connection to the fact
    >     that such veto may not be possible without item 1(as I
    understood
    >     it) and that is why I said an indirect veto can happen not
    that I
    >     was entirely suggesting that those powers be off the table.
    >
    >     It seem however that folks are only looking at the powers
    and not
    >     at what it will take to have them.
    >
    >     By the way, I also did put in a reservation that we may not
    >     necessarily agree with those views but my concern is mainly
that
    >     the ccwg does not spend so much time developing proposals
    that we
    >     know has certain implementation requirements that are not
    >     compatible with the ICANN community structure. I think we
should
    >     learn from the the past (based on comments from the last PC)
and
    >     utilize legal council and volunteer hours more effectively.
    >
    >     FWIW speaking as participant.
    >
    >     Regards
    >
    >     On 6 Jul 2015 8:08 pm, "Burr, Becky" <Becky.Burr@neustar.biz
    <mailto:Becky.Burr@neustar.biz>
    >     <mailto:Becky.Burr@neustar.biz
    <mailto:Becky.Burr@neustar.biz>>> wrote:
    >
    >         Seun,
    >
    >
    >
    >         I am not sure why we would take direct budget/strat plan
    veto
    >         off the table.  Could you explain? Thanks.
    >
    >
    >
    >         Becky
    >
    >         J. Beckwith Burr
    >
    >         *Neustar, Inc. /* Deputy General Counsel and Chief
    Privacy Officer
    >
    >         1775 Pennsylvania Avenue NW, Washington, DC 20006
    >
    >         Office: + 1.202.533.2932 <tel:%2B%201.202.533.2932>
    <tel:%2B%201.202.533.2932>  Mobile:
    >         +1.202.352.6367 <tel:%2B1.202.352.6367>
    >         <tel:%2B1.202.352.6367>  / becky.burr@neustar.biz
    <mailto:becky.burr@neustar.biz>
    >         <mailto:becky.burr@neustar.biz
    <mailto:becky.burr@neustar.biz>> / www.neustar.biz
    <http://www.neustar.biz>
    >         <http://www.neustar.biz>
    >
    >
    >
    >         *From: *Seun Ojedeji <seun.ojedeji@gmail.com
    <mailto:seun.ojedeji@gmail.com>
    >         <mailto:seun.ojedeji@gmail.com
    <mailto:seun.ojedeji@gmail.com>>>
    >         *Date: *Monday, July 6, 2015 at 11:09 AM
    >         *To: *Robin Gross <robin@ipjustice.org
    <mailto:robin@ipjustice.org>
    >         <mailto:robin@ipjustice.org <mailto:robin@ipjustice.org>>>
    >         *Cc: *Accountability Community
    >         <accountability-cross-community@icann.org
    <mailto:accountability-cross-community@icann.org>
    >         <mailto:accountability-cross-community@icann.org
    <mailto:accountability-cross-community@icann.org>>>
    >         *Subject: *Re: [CCWG-ACCT] Who is managing the lawyers and
    >         what have they beenasked to do?
    >
    >
    >
    >         Hi,
    >
    >         I have no problem with having a new proposal presented.
    >         However it is important that there some adherence to basic
    >         principles on proposals that the ccwg would not want to
    >         explore. Three areas comes to mind:
    >
    >         - Its my understanding that anything that will turn
some/all
    >         of the SO/AC to members and thereby exposing them to legal
    >         challenge is not acceptable
    >
    >         - Its my understanding that anything that allows removal of
    >         individual board member without the approval of the
    entire(or
    >         larger part) of the community is not acceptable
    >
    >         - Its my understanding that a solution that allows direct
    >         community veto on certain elements like budget,
    strategic plan
    >         et all is not acceptable but an indirect enforcement
    could be
    >         considered (i.e using a power to get another power executed
    >         indirectly)
    >
    >
    >
    >         Some/none of the above may be acceptable by us, but my
point
    >         is that there should be some focus going forward,
especially
    >         if the target of ICANN54 is to be meet
    >
    >         Regards
    >
    >
    >
    >
    >
    >         On Mon, Jul 6, 2015 at 3:37 PM, Robin Gross
    >         <robin@ipjustice.org <mailto:robin@ipjustice.org>
    <mailto:robin@ipjustice.org <mailto:robin@ipjustice.org>>> wrote:
    >
    >             I would also like to hear what they propose at this
    >             stage.  I really don't see how it could hurt to have
    >             another proposal to consider.  Larry Strickling did
    say he
    >             wanted us to be sure we examined all the options
    carefully.
    >
    >
    >
    >             Thanks,
    >
    >             Robin
    >
    >
    >
    >             On Jul 6, 2015, at 7:32 AM, Greg Shatan wrote:
    >
    >
    >
    >                 I agree.  We should have the benefit of their
    thoughts.
    >
    >
    >
    >                 Greg
    >
    >
    >
    >                 On Mon, Jul 6, 2015 at 9:38 AM, Jordan Carter
    >                 <jordan@internetnz.net.nz
    <mailto:jordan@internetnz.net.nz>
    >                 <mailto:jordan@internetnz.net.nz
    <mailto:jordan@internetnz.net.nz>>> wrote:
    >
    >                     Well, I would really really like to see what
the
    >                     creative thinking they have done has
    suggested. I
    >                     trust our ability as a group to make decisions,
    >                     and do not believe we should cut off input from
    >                     any direction...
    >
    >
    >
    >                     Jordan
    >
    >
    >
    >                     On 7 July 2015 at 01:13, James Gannon
    >                     <james@cyberinvasion.net
    <mailto:james@cyberinvasion.net>
    >                     <mailto:james@cyberinvasion.net
    <mailto:james@cyberinvasion.net>>> wrote:
    >
    >                         Hey Avri,
    >
    >
    >
    >                         Yes the 3rd model was brought up, and the
    >                         lawyers feel that it might be a cleaner way
    >                         for us to get the powers that we need.
    >
    >                         But without a call from the CCWG to
    present it
    >                         they feel that its not their position to
    >                         propose a model on their own initiative.
    >
    >
    >
    >                         Personally i would like to see what they
    have
    >                         come up with but the CCWG would need to
    ask as
    >                         an overall group for the chairs to
    direct them
    >                         to give some more information on the
    model if
    >                         we wanted it.
    >
    >                         I think if after we hear from them on
    Tuesdays
    >                         call we still feel we might have some
    >                         shortcomings that it might be the time
    to ask
    >                         them about the 3rd option.
    >
    >
    >
    >                         Also +1 I think they are really enjoying
the
    >                         work and are finding themselves getting
more
    >                         and more involved as we go on, which is
    great
    >                         for the CCWG as the more background and
    >                         details they know the better that are
    able to
    >                         give us solid well reasoned advice in my
    opinion.
    >
    >
    >
    >                         -James
    >
    >
    >
    >
    >
    >                             On 6 Jul 2015, at 13:19, Avri Doria
    >                             <avri@acm.org <mailto:avri@acm.org>
    <mailto:avri@acm.org <mailto:avri@acm.org>>> wrote:
    >
    >
    >
    >                             Hi,
    >
    >                             I have not had a chance to get back
    to the
    >                             recording of the  call.  Not
    >                             sure I will, that time was the time
    I had
    >                             for that call and that is why
    >                             i was listening then.
    >
    >                             In any case, the lawyers were talking
    >                             about a new model they had come up
    >                             with, but not knowing what to do
    about it
    >                             since they had not been asked
    >                             for a new model.
    >
    >                             I was told to leave before I got to
hear
    >                             the end of that story. Or about
    >                             the model itself.  Anyone who has had a
    >                             chance to listen, whatever happened?
    >
    >                             avri
    >
    >                             ps. sometimes i think the lawyers are
    >                             getting interested in what we are
    >                             doing, almost like stakeholders. not
    that
    >                             i expect them to give up their
    >                             hourly rates because they are
    stakeholders.
    >
    >                             On 06-Jul-15 05:07, James Gannon wrote:
    >
    >
    >                                 I listened to the last co-chairs
    >                                 lawyers’ call at;
    >
     https://community.icann.org/pages/viewpage.action?pageId=53782602
    >
     <
https://urldefense.proofpoint.com/v2/url?u=https-3A__community.icann.org_pag...
>                                 (I’m a glutton for punishment)
    >
    >
    >
    >                                 It was a short call and I’ll make a
    >                                 particular note that Leon and
    >                                 Mathieu made a point of not
    making any
    >                                 decisions on behalf of the
    >                                 whole group and made it clear
    anything
    >                                 requiring a decision must be
    >                                 made by the overall CCWG, so I was
    >                                 happy with that side of things
    >                                 myself, most of my own fears
    about not
    >                                 having a sub-group are somewhat
    >                                 assuaged.
    >
    >                                 So my paraphrasing and overview is:
    >
    >
    >
    >                                 ·         Lawyers working hard
    on the
    >                                 models for us collaboratively
    >                                 between the two firms since BA
    >
    >                                 ·         Lawyers are prepping a
    >                                 presentation to give to us ASAP
    >                                 before Paris if possible, that
    >                                 presentation will take the
    majority of
    >                                 a call, it can’t be done
    quickly, they
    >                                 need about 45mins uninterrupted
    >                                 to go through the presentation and
    >                                 then would likely need Q&A time
    >                                 after they present.
    >
    >                                 ·         Some small
    >                                 wording/clarifications to come
    back to
    >                                 the CCWG
    >                                 to make sure everyone’s on the
    same page
    >
    >                                 ·         Everyone feels Paris
    will be
    >                                 an important time for the
    >                                 models, lawyers will be ready for a
    >                                 grilling on the details of the
    >                                 models from us to flesh out any
    of our
    >                                 concerns/questions
    >
    >
    >
    >                                 Note that the above is all my very
    >                                 condensed overview of the
    >                                 conversations.
    >
    >                                 It seemed like a productive call
    to me.
    >
    >
    >
    >                                 -James
    >
    >
    >
    >
    >
    >
     *From:*accountability-cross-community-bounces@icann.org
    <mailto:accountability-cross-community-bounces@icann.org>
    >
     <mailto:accountability-cross-community-bounces@icann.org
    <mailto:accountability-cross-community-bounces@icann.org>>
    >
     [mailto:accountability-cross-community-bounces@icann.org
    <mailto:accountability-cross-community-bounces@icann.org>
    >
     <mailto:accountability-cross-community-bounces@icann.org
    <mailto:accountability-cross-community-bounces@icann.org>>]
    >                                 *On Behalf
    >                                 Of *Greg Shatan
    >                                 *Sent:* Monday, July 06, 2015
    5:33 AM
    >                                 *To:* Carlos Raul
    >                                 *Cc:*
    >
     accountability-cross-community@icann.org
    <mailto:accountability-cross-community@icann.org>
    >
     <mailto:accountability-cross-community@icann.org
    <mailto:accountability-cross-community@icann.org>>
    >                                 *Subject:* Re: [CCWG-ACCT] Who is
    >                                 managing the lawyers and what have
    >                                 they beenasked to do?
    >
    >
    >
    >                                 Carlos,
    >
    >
    >
    >                                 As the legal sub-team was
disbanded,
    >                                 your guess is as good as mine.....
    >
    >
    >
    >                                 Greg
    >
    >
    >
    >                                 On Mon, Jul 6, 2015 at 12:27 AM,
    >                                 Carlos Raul
    <carlosraulg@gmail.com <mailto:carlosraulg@gmail.com>
    >                                 <mailto:carlosraulg@gmail.com
    <mailto:carlosraulg@gmail.com>>
    >                                 <mailto:carlosraulg@gmail.com
    <mailto:carlosraulg@gmail.com>>> wrote:
    >
    >                                    Thank you Greg!
    >
    >
    >
    >                                    It makes a lot of sense and I
    guess
    >                                 those are all good reasons as
    >                                    we hired them in the first
place.
    >                                 What are the next steps now?
    >                                    What happened in the recent
call?
    >
    >
    >
    >                                    Best regards
    >
    >
    >
    >
    >                                    Carlos Raúl Gutiérrez
    >
    >                                    +506 8837 7176
    <tel:%2B506%208837%207176>
    >                                 <tel:%2B506%208837%207176>
    >                                 <tel:%2B506%208837%207176>
    >
    >                                    Skype carlos.raulg
    >
    >                                    _________
    >
    >                                    Apartado 1571-1000
    >
    >                                    *COSTA RICA*
    >
    >
    >
    >
    >
    >                                    On Mon, Jul 6, 2015 at 12:02 AM,
    >                                 Greg Shatan
    >                                    <gregshatanipc@gmail.com
    <mailto:gregshatanipc@gmail.com>
    >                                 <mailto:gregshatanipc@gmail.com
    <mailto:gregshatanipc@gmail.com>> <mailto:gregshatanipc@gmail.com
    <mailto:gregshatanipc@gmail.com>>>
    >                                 wrote:
    >
    >                                        Chris,
    >
    >
    >
    >                                        That was tried to some
    extent,
    >                                 at least in the CWG.
    >
    >
    >
    >                                        There are several
substantial
    >                                 problems with that approach.
    >
    >
    >
    >                                        First, lawyers are not
    >                                 fungible.  The particular legal
    skills,
    >                                        background and experience
    >                                 required for the issues before both
    >                                        WGs are fairly specific,
    and in
    >                                 some cases, very specific.
    >                                        The primary core competency
    >                                 needed here is corporate
    >                                        governance.  While a
    number of
    >                                 lawyers in the community have a
    >                                        reasonable working
    knowledge of
    >                                 the area, at least in their
    >                                        home jurisdictions, I don't
    >                                 believe there are any who would
    >                                        say that this is their
    primary
    >                                 focus and expertise -- at least
    >                                        none who identified
    themselves
    >                                 to either WG.  The second core
    >                                        competency required,
    especially
    >                                 in the CCWG, is non-profit
    >                                        law. Again there are a
number
    >                                 of lawyers with a decent working
    >                                        knowledge of this fairly
    broad
    >                                 field, but not as a primary
    >                                        focus.  There may be a
couple
    >                                 of lawyers in the community who
    >                                        would claim this fairly
broad
    >                                 field as a primary focus and
    >                                        expertise -- but none who
    >                                 became involved with either WG.
    >                                        This then becomes further
    >                                 narrowed by jurisdiction.  Since
    >                                        ICANN is a California
    >                                 non-profit corporation, US
corporate
    >                                        governance and non-profit
    >                                 experience is more relevant than
    >                                        experience from other
    >                                 jurisdictions, and California law
    >                                        corporate governance and
    >                                 non-profit experience is more
    >                                        relevant than that from
other
    >                                 US jurisdictions.  In my
    >                                        experience, the more a US
    >                                 lawyer focuses on a particular
    >                                        substantive area, the
greater
    >                                 their knowledge of and comfort
    >                                        with state law issues in US
    >                                 state jurisdictions other than
    >                                        their own (e.g., someone who
    >                                 spend a majority of their time
    >                                        working in corporate
    governance
    >                                 will have a greater knowledge
    >                                        of the law, issues,
    approaches
    >                                 and trends outside their
    >                                        primary state of practice,
    >                                 while someone who spends a
    >                                        relatively small amount
    of time
    >                                 in the area will tend to feel
    >                                        less comfortable outside
    their
    >                                 home jurisdiction).  (An
    >                                        exception is that many US
    >                                 lawyers have specific knowledge of
    >                                        certain Delaware
    corporate law
    >                                 issues, because Delaware often
    >                                        serves as the state of
    >                                 incorporation for entities
operating
    >                                        elsewhere.)
    >
    >
    >
    >                                        Second, lawyers in the
    >                                 community will seldom be seen as
    >                                        neutral advisors, no
    matter how
    >                                 hard they try.  They will tend
    >                                        to be seen as working from
    >                                 their point of view or stakeholder
    >                                        group or "special
    interest" or
    >                                 desired outcome, even if they
    >                                        are trying to be
even-handed.
    >                                 Over the course of time, this
    >                                        balancing act would tend to
    >                                 become more untenable.
    >
    >
    >
    >                                        Third, the amount of time it
    >                                 would take to provide truly
    >                                        definitive legal advice
    >                                 (research, careful drafting,
    >                                        discussions with relevant
    >                                 "clients", etc.) would be
    >                                        prohibitive, even compared
to
    >                                 the substantial amount of time
    >                                        it takes to provide
    reasonably
    >                                 well-informed and competent
    >                                        legal-based viewpoints in
the
    >                                 course of either WG's work.
    >
    >
    >
    >                                        Fourth, in order to formally
    >                                 counsel the community, the lawyer
    >                                        or lawyers in question would
    >                                 have to enter into a formal
    >                                        attorney-client
relationship.
    >                                 Under US law, an
    >                                        attorney-client relationship
    >                                 may inadvertently be created by
    >                                        the attorney's actions, so
    >                                 attorneys try to be careful about
    >                                        not providing formal legal
    >                                 advice without a formal engagement
    >                                        (sometimes providing an
    >                                 explicit "caveat" if they feel they
    >                                        might be getting too close
to
    >                                 providing legal advice).  If the
    >                                        attorney is employed by a
    >                                 corporation, they would likely be
    >                                        unable to take on such a
    >                                 representation due to the terms of
    >                                        their employment, and that
is
    >                                 before getting to an exploration
    >                                        of conflict of interest
    >                                 issues.  If the attorney is
employed
    >                                        by a firm, the firm would
    have
    >                                 to sign off on the
    >                                        representation, again
dealing
    >                                 with potential conflict issues.
    >
    >
    >
    >                                        Fifth, even if the above
    issues
    >                                 were all somehow resolved, it
    >                                        would be highly unlikely
that
    >                                 any such attorney would provide
    >                                        substantial amounts of
    advice,
    >                                 written memos, counseling, etc.
    >                                        on a pro bono (unpaid)
basis,
    >                                 especially given the
    >                                        time-consuming nature of the
    >                                 work.  Pro bono advice and
    >                                        representation is generally
    >                                 accorded to individuals and
    >                                        entities that could not
    >                                 otherwise be able to pay for
    it.  That
    >                                        is clearly not the case
here,
    >                                 at least with ICANN taking
    >                                        financial responsibility.
It
    >                                 would likely be very difficult
    >                                        to justify this to, e.g., a
    >                                 firm's pro bono committee, as a
    >                                        valid pro bono
    representation.
    >
    >
    >
    >                                        Sixth, if ICANN were not
    taking
    >                                 the role they are taking, it
    >                                        would be extremely
    difficult to
    >                                 identify the "client" in this
    >                                        situation.  The
    "community"  is
    >                                 a collection of sectors,
    >                                        mostly represented by
various
    >                                 ICANN-created structures, which
    >                                        in turn have members of
    widely
    >                                 varying types (individuals,
    >                                        corporations, sovereigns,
    >                                 non-profits, IGOs, partnerships,
    >                                        etc.).  This would also
    make it
    >                                 extremely difficult to enter
    >                                        into a formal counseling
    >                                 relationship with the "community."
    >
    >
    >
    >                                        Seventh, this is a
sensitive,
    >                                 high-profile, transformative set
    >                                        of actions we are
    involved in,
    >                                 which is subject to an
    >                                        extraordinary amount of
    >                                 scrutiny, not least that of the
NTIA
    >                                        and the US Congress.  That
    >                                 eliminates any possibility of
    >                                        providing informal,
    >                                 off-the-cuff, reasonably
    well-informed but
    >                                        not quite expert,
    "non-advice"
    >                                 advice -- which might happen in
    >                                        a more obscure exercise.
    >                                 There's simply too much at stake.
    >
    >
    >
    >                                        Finally, I would say that a
    >                                 number of attorneys involved in
    >                                        one or both of the WGs are
in
    >                                 fact providing a significant
    >                                        amount of legal knowledge
and
    >                                 experience to the WGs, helping
    >                                        to frame issues, whether in
    >                                 terms of general leadership (e.g.,
    >                                        Thomas, Leon, Becky) or more
    >                                 specifically in a
    >                                        "lawyer-as-client"
    capacity --
    >                                 working with outside counsel,
    >                                        tackling the more legalistic
    >                                 issues, providing as much legal
    >                                        background and knowledge as
    >                                 possible without providing the
    >                                        type of formal legal advice
    >                                 that would tend to create an
    >                                        attorney-client
relationship,
    >                                 etc.  So I do think that many
    >                                        lawyers in the community are
    >                                 giving greatly of themselves in
    >                                        this process, even though
    they
    >                                 cannot and would not be able to
    >                                        formally be engaged by the
    >                                 community as its "counsel of
    record."
    >
    >
    >
    >                                        In sum, it might be a nice
    >                                 thought in theory, but it is no way
    >                                        a practical possibility.
    >
    >
    >
    >                                        Greg
    >
    >
    >
    >                                        On Sat, Jul 4, 2015 at
    3:08 AM,
    >                                 CW Lists
    >
    <lists@christopherwilkinson.eu <mailto:lists@christopherwilkinson.eu
>
     <mailto:lists@christopherwilkinson.eu
    <mailto:lists@christopherwilkinson.eu>>
    >
    <mailto:lists@christopherwilkinson.eu
    <mailto:lists@christopherwilkinson.eu>>>
    >                                 wrote:
    >
    >                                            Good morning:
    >
    >
    >
    >                                            I had decided not to
    enter
    >                                 this debate. But I am bound to
    >                                            say that the thought had
    >                                 occurred to me at the time, that
    >                                            there were more than
    enough
    >                                 qualified lawyers in this
    >                                            community that they
could
    >                                 perfectly well have counselled …
    >                                            themselves.
    >
    >
    >
    >                                            CW
    >
    >
    >
    >                                            On 04 Jul 2015, at
08:41,
    >                                 Greg Shatan
    >
    <gregshatanipc@gmail.com <mailto:gregshatanipc@gmail.com>
    >                                 <mailto:gregshatanipc@gmail.com
    <mailto:gregshatanipc@gmail.com>> <mailto:gregshatanipc@gmail.com
    <mailto:gregshatanipc@gmail.com>>>
    >                                            wrote:
    >
    >
    >
    >                                                Wolfgang,
    >
    >
    >
    >                                                To your first point,
    >                                 the billing rates were clearly
    >                                                stated in the law
    >                                 firms' engagement letters.
    >
    >
    >
    >                                                To your second
point,
    >                                 I'm sure we could all think of
    >                                                other projects and
    >                                 goals where the money could have
    >                                                been "better spent."
    >                                  You've stated yours.  But that
    >                                                is not the proper
    >                                 test.  This was and continues to be
    >                                                money we need to
    spend
    >                                 to achieve the goals we have
    >                                                set.  Under
different
    >                                 circumstances, perhaps it would
    >                                                be a different
amount
    >                                 (or maybe none at all).  But it
    >                                                was strongly felt at
    >                                 the outset that the group needed
    >                                                to have independent
    >                                 counsel.  Clearly that counsel
    >                                                needed to have
    >                                 recognized expertise in the
    appropriate
    >                                                legal areas.  As
    such,
    >                                 I believe we made excellent
    >                                                choices and have
been
    >                                 very well represented.
    >
    >
    >
    >                                                As to your "better
    >                                 spent" test, I just had to have
    >                                                $4000.00 worth of
    >                                 emergency dental work done.  This
    >                                                money definitely
    could
    >                                 have been "better spent" on a
    >                                                nice vacation,
    >                                 redecorating our living room or on
    >                                                donations to my
    favored
    >                                 charitable causes.  But I had
    >                                                no choice, other
than
    >                                 to choose which dentist and
    >                                                endodontist I
    went to,
    >                                 and I wasn't going to cut
    >                                                corners -- the
dental
    >                                 work was a necessity.
    >                                                Similarly, the legal
    >                                 work we are getting is a
    >                                                necessity and
whether
    >                                 we would have preferred to spend
    >                                                the money
    elsewhere is
    >                                 not merely irrelevant, it is an
    >                                                incorrect and
    >                                 inappropriate proposition.  Many
    of us
    >                                                are investing vast
    >                                 quantities of time that could be
    >                                                "better spent"
    >                                 elsewhere as well, but we are
    willing
    >                                                (grudgingly
    sometimes)
    >                                 to spend the time it takes to
    >                                                get it right,
because
    >                                 we believe it needs to be done.
    >                                                This is the
    appropriate
    >                                 measure, whether it comes to
    >                                                our time or
counsels'
    >                                 time.  If we believe in this
    >                                                project, we have to
    >                                 invest in it, and do what it takes
    >                                                to succeed.
    >
    >
    >
    >                                                Of course, this
    >                                 investment has to be managed wisely
    >                                                and
cost-effectively,
    >                                 and by and large, I believe the
    >                                                CCWG has done that
    >                                 reasonably well -- not perfectly,
    >                                                but reasonably
    well and
    >                                 with "course corrections"
    >                                                along the way
    intended
    >                                 to improve that management.
    >                                                It's certainly
    fair to
    >                                 ask, as Robin has done, for a
    >                                                better
    understanding of
    >                                 that management as we go
    >                                                along.  But
asserting
    >                                 that the money could have been
    >                                                "better spent"
    >                                 elsewhere sets up a false test
    that we
    >                                                should not use to
    >                                 evaluate this important aspect of
    >                                                our work.
    Instead, we
    >                                 need to focus on whether the
    >                                                money was "well
    spent"
    >                                 on these critical legal
    >                                                services. If you
have
    >                                 reason to believe it was not,
    >                                                that could be
    useful to
    >                                 know.  That would at least be
    >                                                the right
    discussion to
    >                                 have.
    >
    >
    >
    >                                                Greg
    >
    >
    >
    >                                                On Sat, Jul 4,
    2015 at
    >                                 1:13 AM, "Kleinwächter,
    >                                                Wolfgang"
    >
    <wolfgang.kleinwaechter@medienkomm.uni-halle.de
    <mailto:wolfgang.kleinwaechter@medienkomm.uni-halle.de>
    >
     <mailto:wolfgang.kleinwaechter@medienkomm.uni-halle.de
    <mailto:wolfgang.kleinwaechter@medienkomm.uni-halle.de>>
    >
    <mailto:wolfgang.kleinwaechter@medienkomm.uni-halle.de
    <mailto:wolfgang.kleinwaechter@medienkomm.uni-halle.de>>>
    >                                                wrote:
    >
    >                                                    HI,
    >
    >                                                    and please if
you
    >                                 ask outside lawyers, ask for the
    >                                                    price tag in
    >                                 advance. Some of the money spend fo
    >                                                    lawyers could
    have
    >                                 been spend better to suppport
    >                                                    and enable
    Internet
    >                                 user and non-commercial groups
    >                                                    in developing
    >                                 countries.
    >
    >
    >                                                    Wolfgang
    >
    >
    >
    >
    >
    >
    -----Ursprüngliche
    >                                 Nachricht-----
    >                                                    Von:
    >
    accountability-cross-community-bounces@icann.org
    <mailto:accountability-cross-community-bounces@icann.org>
    >
     <mailto:accountability-cross-community-bounces@icann.org
    <mailto:accountability-cross-community-bounces@icann.org>>
    >
    <mailto:accountability-cross-community-bounces@icann.org
    <mailto:accountability-cross-community-bounces@icann.org>>
    >                                                    im Auftrag von
    >                                 Robin Gross
    >                                                    Gesendet: Fr
    >                                 03.07.2015 14:57
    >                                                    An:
    accountability-cross-community@icann.org
    <mailto:accountability-cross-community@icann.org>
    >
     <mailto:accountability-cross-community@icann.org
    <mailto:accountability-cross-community@icann.org>>
    >
    <mailto:accountability-cross-community@icann.org
    <mailto:accountability-cross-community@icann.org>>
    >                                                    Community
    >                                                    Betreff:
    >                                 [CCWG-ACCT] Who is managing the
    lawyers
    >                                                    and what have
    they
    >                                 beenasked to do?
    >
    >
    >                                                    After the legal
    >                                 sub-team was disbanded, I haven't
    >                                                    been able to
    follow
    >                                 what communications are
    >                                                    happening
    with CCWG
    >                                 and the independent lawyers we
    >                                                    retained.
    >
    >                                                    I understand the
    >                                 lawyers are currently "working on
    >                                                    the various
    models"
    >                                 and will present something to
    >                                                    us regarding
that
    >                                 work soon.  However, *what
    >                                                    exactly* have
the
    >                                 lawyers been asked to do and
    >                                                    *who* asked
them?
    >                                   If there are written
    >                                                    instructions,
may
    >                                 the group please see them?  Who
    >                                                    is now taking on
    >                                 the role of managing the outside
    >                                                    attorneys for
    this
    >                                 group, including providing
    >                                                    instructions and
    >                                 certifying legal work?
    >
    >                                                    Sorry, but I'm
    >                                 really trying to understand what is
    >                                                    happening, and
    >                                 there doesn't seem to be much
    >                                                    information
    in the
    >                                 public on this (or if there is,
    >                                                    I can't find
it).
    >                                 Thanks for any information
    >                                                    anyone can
    provide.
    >
    >                                                    Best,
    >                                                    Robin
    >
    >
    _______________________________________________
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