I am not really sure why this should be relevant, as I would say that it is up to the board or individual board members from whom they seek there advice since they themselves are accountable for the decisions they base on such advice.
However, Greg, if all is well, board members are (s)elected primarily on their expertise, experience and personal competences. 
It would be a disservice to the board and the community if the professional opinion of a board member, based on personal expertise on a matter, could not be used as advice to the (rest of the) board. It’s the whole idea of having a diverse board with different fields of (extensive) expertise. Law and otherwise.

Best,

Roelof Meijer

From: <accountability-cross-community-bounces@icann.org> on behalf of Greg Shatan <gregshatanipc@gmail.com>
Date: dinsdag 6 oktober 2015 05:48
To: Bruce Tonkin <Bruce.Tonkin@melbourneit.com.au>
Cc: "accountability-cross-community@icann.org" <accountability-cross-community@icann.org>
Subject: Re: [CCWG-ACCT] question on fiduciary duties and their objectivity

Bruce, 

I would like to clarify a few things for purposes of this discussion about a Board engaging independent counsel.  First  there is  a very significant difference between individual directors engaging independent counsel and a Board engaging independent counsel.  Typically, in the first instance, the director is seeking counsel with some distance and independence from the Board.  In the second instance, the Board as a body is seeking advice independent of the corporation's counsel.   The question of whether individual directors have retained independent counsel is not really relevant to this discussion about the Board seeking independent legal advice.  

It's also important to note that legal advice arises in an attorney-client relationship, which can be created by a lawyer giving legal advice as well as by an intentional act of engaging counsel.  While there may be lawyers on the ICANN Board, they are not acting in that capacity, they are acting as directors.  As such, they should not be providing legal advice, and their thoughts about legal matters should not be considered legal advice. If  board members are trying to wear both hats, that creates confusion (at best) because it is unclear when they are acting as directors and when they are acting as lawyers in an attorney-client relationship.  Being a lawyer who has sat on some non-profit boards, it's my understanding that the usual advice is to be extra careful NOT to provide legal advice.  The situation is also treacherous when directors consult with the lawyers their employer retains in their "day job" context.  For instance, directors should not be sharing confidential information about board matters outside the board room.  This scenario also raises questions about who the "client" is and if or when an attorney-client relationship arises.  At best, these situations should be considered legal "kibitizing"* and not legal advice, and the recipient of the kibitzing should not rely on it as legal advice.  In other words, none of this is a substitute for actual legal advice from an attorney engaged for that purpose.  At worst, these situations can cause quite a bit of mess.

Greg
[CAVEAT:  This email (and all other emails I have sent or will send) do not constitute legal advice, should not be relied on as such, and do not create an attorney-client relationship.]

* Kibitzing: Giving casual (and sometimes unrequested) advice as a bystander.

On Mon, Oct 5, 2015 at 2:27 PM, Bruce Tonkin <Bruce.Tonkin@melbourneit.com.au> wrote:
Hello Avri.


>>  Maybe someone mentioned it and I missed it, but how many directors have retained counsel in our history.

>>  More than 1 or 2?

From my recollection that sounds about right.

I will check with the General Counsel's office to see if they have some data.

Regards,
Bruce Tonkin



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