Feb. 9, 2015
5:49 p.m.
In total agreement with Chris comments below; we started by complaining about internal legal advice (which by the way makes sense), now we are having concerns about internal payments. I am sure ICANN would be glad to be relieved of having to pay for the cost anyway. ;-) Cheers! sent from Google nexus 4 kindly excuse brevity and typos. On 10 Feb 2015 09:42, "Chris Disspain" <ceo@auda.org.au> wrote: > All, > > I can feel a slippery slope ahead. Whoever pays ‘influences’? Surely not. > Lawyers are perfectly capable of providing independent advice on law. Where > there are several possibilities they are perfectly capable of laying them > out. What you don’t want is rhetoric or too much advice. In other words you > don’t want the lawyers to say you can do a) or b) but WE prefer a). A law > firm will respond to the specific instructions they receive. They have an > obligation to do so. > > The danger is that anyone who doesn’t like the advice will claim it is > skewed in favour of X or Y. If that's then case I suggest each group goes > and gets its own advice and then we share notes. > > > Cheers, > > > Chris (a lawyer) > > On 10 Feb 2015, at 12:27 , Roelof Meijer <Roelof.Meijer@sidn.nl> wrote: > > I am not a suspicious guy and could live with ICANN paying the bill. > However, due to the fact that we need the whole community to have trust in > the expert (legal) advice we use as a working group, I am in favor of > another solution than ICANN paying the bill. > > Cheers, > > Roelof > > From: Jordan Carter <jordan@internetnz.net.nz> > Date: dinsdag 10 februari 2015 09:20 > To: Kieren McCarthy <kieren@kierenmccarthy.com> > Cc: Lisse Eberhard <directors@omadhina.net>, CCWG Accountability < > accountability-cross-community@icann.org> > Subject: Re: [CCWG-ACCT] Responses to questions from Jones Day > > Kieran, all: > > Do you think the payment issue outranks the fact that this CCWG's team > doing legal will be the effective client? That is, do you think the CCWG > can rely on advice that it briefs out and manages the relationships for, > regardless of who ends up paying the bill? > > I am not a lawyer but your last point seems important to me. > > best, > Jordan > > On 10 February 2015 at 02:25, Kieren McCarthy <kieren@kierenmccarthy.com> > wrote: > >> I can't for the life of me understand why this group is prepared to >> accept ICANN paying for external legal advice on a topic of the highest >> possible interest to ICANN. >> >> Considering the importance of this topic, I am pretty sure that the >> various internet organizations who depend so heavily on ICANN would be >> willing to pay into a fund to cover independent legal advice. >> >> I also think it would be advisable for whoever is contracted to provide >> this advice to be obligated to report any and all approaches and >> conversations with third parties in order to limit the opportunity for >> behind-the-scenes influencing. >> >> >> >> Kieren >> >> >> On Sun, Feb 8, 2015 at 1:14 AM, Phil Corwin <psc@vlaw-dc.com> wrote: >> >>> +1. ICANN has tripled its staff in 2.5 years. Surely it can provide the >>> resources that this CCWG needs to retain independent legal advice. Until >>> it does this CCWG should be in a holding pattern and if that delays the >>> transition so be it. >>> >>> 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 >>> >>> Sent from my iPad >>> >>> > On Feb 8, 2015, at 5:08 PM, Matthew Shears <mshears@cdt.org> wrote: >>> > >>> > >>> > Completely agree: >>> > >>> > I'd really like to see ICANN demonstrate it is as concerned with >>> helping the CCWG secure our independent legal resources "in the most >>> efficient and cost-effective manner" as it was in sharing its own views and >>> positions. >>> > >>> > >>> > Matthew >>> > >>> > >>> >> On 2/8/2015 9:03 AM, Drazek, Keith wrote: >>> >> Hi all, >>> >> >>> >> If everyone recognizes the Jones Day submission as input/advocacy >>> from an interested party and not legal advice to the CCWG, and that it >>> carries no greater weight than our yet-to-be-received independent advice, I >>> have no idea what with ICANN putting its cards on the table. >>> >> I'm >>> >> Despite the appearance of an attempt to influence the discussion >>> through first-mover advantage, this could help us identify early conflicts >>> of opinion and identify where we need to focus our energies. >>> >> >>> >> That said, I'd really like to see ICANN demonstrate it is as >>> concerned with helping the CCWG secure our independent legal resources "in >>> the most efficient and cost-effective manner" as it was in sharing its own >>> views and positions. >>> >> I'm at a >>> >> It appears there was more urgency for the latter. >>> >> I'm >>> >> Regards, >>> >> Keith >>> >> >>> >> Sent from my iPhone >>> >> >>> >>> On Feb 8, 2015, at 4:25 PM, Edward Morris <egmorris1@toast.net> >>> wrote: >>> >>> >>> >>> One of the reasons many of us opposed inclusion of ICANN staff >>> members as participants in the accountability and transition working >>> groups, is that disagreement with staff positions could prove problematic >>> for those opposing ICANN positions. As a sitting member of the GNSO >>> Council, elected by my community, I would suggest Samantha that you, as an >>> ICANN staff member, are not tasked with determining what is and is not an >>> acceptable opinion or post on this list. >>> >>> >>> >>> For the record, despite your assertion, I have not seen anyone >>> declare the Jones Day opinion "incompetent". I certainly have not. I will, >>> however, repeat my claim: it is a one sided document that uses legal >>> opinion to support the known preferences of a interested party (ICANN). It >>> is not a neutral opinion that we as community members can rely upon in >>> making our decisions. I look forward to receiving one so I can discharge my >>> responsibility in helping your employer, Samantha, meet it's obligations to >>> the both community and to the N.T.I.A. >>> >>> >>> >>> Edward Morris >>> >>> >>> >>> Sent from my iPad >>> >>> >>> >>>> On Feb 8, 2015, at 7:40 AM, Samantha Eisner < >>> Samantha.Eisner@icann.org> wrote: >>> >>>> >>> >>>> Kevin, a skilled attorney in California corporate structures as >>> well as >>> >>>> governance issues, provided these responses to the CCWG questions >>> as a >>> >>>> mode of giving input into the process. Kevin has just arrived here >>> in >>> >>>> Singapore and will be available to discuss these answers; if >>> modifications >>> >>>> or clarifications are needed, they can be provided. These >>> responses, many >>> >>>> of which provide a transparent view on advice or positions that >>> ICANN has >>> >>>> taken in the past on these issues, are being provided to help >>> narrow and >>> >>>> clarify the issues for which external advice may be sought. From >>> the >>> >>>> ICANN side, we are very interested in making sure that the CCWG >>> gets the >>> >>>> input that it needs and in the most efficient and cost-effective >>> manner; >>> >>>> ICANN’s transparency on this issue will allow for other counsel to >>> be able >>> >>>> to provide advice in a quicker, more timely manner. >>> >>>> >>> >>>> As we go down the legal advice path, each of us are likely to see >>> answers >>> >>>> that we may not agree with; while we do not have to accept >>> positions with >>> >>>> which we take issue, we do need to afford the appropriate respect >>> to those >>> >>>> providing responses. Suggestions of “incompetence” are not >>> acceptable. >>> >>>> >>> >>>> >>> >>>>> On 2/8/15, 2:06 PM, "Edward Morris" <egmorris1@toast.net> wrote: >>> >>>>> >>> >>>>> I agree Becky. This work product is pure advocacy that ignores >>> >>>>> substantial portions of the statutes it claims to explain. It's >>> actually >>> >>>>> quite remarkable in that way. >>> >>>>> >>> >>>>> I only hope we are able to retain competent independent legal >>> consultant >>> >>>>> to guide us in this work. I would classify the Jones Day document >>> as no >>> >>>>> more than the representation of a policy position of an >>> interested party >>> >>>>> drafted by an attorney , not as anything I'd consider valid legal >>> advice. >>> >>>>> >>> >>>>> Sent from my iPad >>> >>>>> >>> >>>>>> On Feb 8, 2015, at 5:03 AM, Burr, Becky <Becky.Burr@neustar.biz> >>> wrote: >>> >>>>>> >>> >>>>>> The questions and answers are interesting as advocacy but cannot >>> be >>> >>>>>> considered legal advice for our work >>> >>>>>> >>> >>>>>> Sent from my iPad >>> >>>>>> >>> >>>>>>> On Feb 8, 2015, at 12:19 PM, León Felipe Sánchez Ambía >>> >>>>>>> <leonfelipe@sanchez.mx> wrote: >>> >>>>>>> >>> >>>>>>> Dear all, >>> >>>>>>> >>> >>>>>>> Answering your questions: >>> >>>>>>> >>> >>>>>>> Keith.- The questions were presented by the Co-Chairs at our >>> Frankfut >>> >>>>>>> meeting as a high-level first approach to what we should be >>> focusing on >>> >>>>>>> achieving. They were also discussed at the CCWG call of January >>> 27. We >>> >>>>>>> then asked Staff to pass the questions through ICANN legal so >>> they >>> >>>>>>> referred this questions to Jones Day. The document are the >>> responses >>> >>>>>>> prepared by Kevin Espinola of Jones Day. The goal was to get a >>> very >>> >>>>>>> rapid >>> >>>>>>> response on some basic questions the group wanted answers on. >>> >>>>>>> >>> >>>>>>> Jordan.- I believe Adam has clarified where the questions came >>> from and >>> >>>>>>> how they got into Jones Day for response which is in line with >>> what I >>> >>>>>>> have >>> >>>>>>> replied to Keith. >>> >>>>>>> >>> >>>>>>> Phil.- Nobody said this was the advice we are taking. Please see >>> this >>> >>>>>>> document as one more input document tat will feed our work, just >>> as the >>> >>>>>>> CWG legal document has fed it. This is NOT intended to be taken >>> as the >>> >>>>>>> legal advice we¹re looking for although in the end it might (or >>> might >>> >>>>>>> not) >>> >>>>>>> be compatible with what we need. >>> >>>>>>> >>> >>>>>>> I hope this clarifies the doubts and concerns raised so far. >>> >>>>>>> >>> >>>>>>> Best regards, >>> >>>>>>> >>> >>>>>>> >>> >>>>>>> >>> >>>>>>> León >>> >>>>>>> >>> >>>>>>>> El 08/02/2015, a las 12:05, Dr Eberhard W Lisse <el@lisse.NA> >>> >>>>>>>> escribió: >>> >>>>>>>> >>> >>>>>>>> Phil, >>> >>>>>>>> >>> >>>>>>>> opinions of dependent lawyers are as interesting as the ones of >>> >>>>>>>> independent ones :-)-O >>> >>>>>>>> >>> >>>>>>>> el >>> >>>>>>>> >>> >>>>>>>>> On 2015-02-08 11:48 , Jordan Carter wrote: >>> >>>>>>>>> Phil, yes - the CCWG agreed with that in Frankfurt. It was >>> felt it >>> >>>>>>>>> might >>> >>>>>>>>> be helpful to understand the view of the company and its >>> >>>>>>>>> representatives >>> >>>>>>>>> as well as an independent view, if I recall correctly. >>> >>>>>>>>> Jordan >>> >>>>>>>>> >>> >>>>>>>>> On 8 February 2015 at 11:36, Phil Corwin <psc@vlaw-dc.com >>> >>>>>>>>> <mailto:psc@vlaw-dc.com>> wrote: >>> >>>>>>>>> >>> >>>>>>>>> Jones Day cannot be regarded as an objective and neutral >>> source of >>> >>>>>>>>> legal advice or opinions on anything related to ICANN. Indeed, >>> any >>> >>>>>>>>> statement made by Jones Day must be regarded as the views of >>> ICANN, >>> >>>>>>>>> its long-standing client. >>> >>>>>>>>> >>> >>>>>>>>> Sent from my BlackBerry 10 smartphone. >>> >>>>>>>>> >>> >>>>>>>>> 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: *Drazek, Keith >>> >>>>>>>>> *Sent: *Sunday, February 8, 2015 11:14 AM >>> >>>>>>>>> *To: *León Felipe Sánchez Ambía >>> >>>>>>>>> *Cc: *CCWG Accountability >>> >>>>>>>>> *Subject: *Re: [CCWG-ACCT] Responses to questions from Jones >>> Day >>> >>>>>>>>> >>> >>>>>>>>> >>> >>>>>>>>> Leon, >>> >>>>>>>>> >>> >>>>>>>>> Do I understand you correctly that Jones Day developed both the >>> >>>>>>>>> questions and the answers? Did the CCWG request this? >>> >>>>>>>>> >>> >>>>>>>>> Thanks, >>> >>>>>>>>> Keith >>> >>>>>>>>> >>> >>>>>>>>> Sent from my iPhone >>> >>>>>>>>> >>> >>>>>>>>> On Feb 8, 2015, at 10:18 AM, León Felipe Sánchez Ambía >>> >>>>>>>>> <leonfelipe@sanchez.mx <mailto:leonfelipe@sanchez.mx>> wrote: >>> >>>>>>>>> >>> >>>>>>>>>> Dear all, >>> >>>>>>>>>> >>> >>>>>>>>>> Please find attached the responses from Jones Day for >>> questions >>> >>>>>>>>>> prepared by Kevin Espinola. I would like to ask you to please >>> >>>>>>>>>> review the document so we can further discuss it in our >>> session >>> >>>>>>>>>> tomorrow. >>> >>>>>>>>>> >>> >>>>>>>>>> I would also like to remind the group that this is a first >>> step >>> >>>>>>>>>> which runs parallel to what the legal sub-team is doing in >>> >>>>>>>>>> coordination with the CWG “legal client”. The aim is to have >>> this >>> >>>>>>>>>> responses reviewed by the legal sub-team as well as by the >>> larger >>> >>>>>>>>>> CCWG so we can determine how to better validate this responses >>> >>>>>>>>>> with the external legal advisors when we engage with said >>> external >>> >>>>>>>>>> advice. >>> >>>>>>>>>> >>> >>>>>>>>>> I look forward to a fruitful session with all of you. >>> >>>>>>>>>> >>> >>>>>>>>>> Best regards, >>> >>>>>>>>>> >>> >>>>>>>>>> >>> >>>>>>>>>> >>> >>>>>>>>>> León >>> >>>>>>>>>> >>> >>>>>>>>>> >>> >>>>>>>>>> <Accountability Questions for CCWG - from Jones Day.pdf> >>> >>>>>>>>> _______________________________________________ >>> >>>>>>>>> Accountability-Cross-Community mailing list >>> >>>>>>>>> Accountability-Cross-Community@icann.org >>> >>>>>>>>> <mailto:Accountability-Cross-Community@icann.org> >>> >>>>>>>>> >>> >>>>>>>>> >>> https://urldefense.proofpoint.com/v2/url?u=https-3A__mm.icann.org_mail >>> >>>>>>>>> >>> man_listinfo_accountability-2Dcross-2Dcommunity&d=AwIF-g&c=MOptNlVtIET >>> >>>>>>>>> >>> eDALC_lULrw&r=62cJFOifzm6X_GRlaq8Mo8TjDmrxdYahOP8WDDkMr4k&m=qwBRSEcol5 >>> >>>>>>>>> >>> r4bZKf-_y9unJDayHfowmd9pjeG40pqTY&s=WWqaMuLlBAG_Gr0RU6ekSk08rpZDmHGFN6 >>> >>>>>>>>> WV735dTxo&e= >>> >>>>>>>>> >>> >>>>>>>>> >>> >>>>>>>>> >>> >>>>>>>>> >>> >>>>>>>>> -- >>> >>>>>>>>> Jordan Carter >>> >>>>>>>>> >>> >>>>>>>>> Chief Executive >>> >>>>>>>>> *InternetNZ* >>> >>>>>>>>> >>> >>>>>>>>> 04 495 2118 (office) | +64 21 442 649 (mob) >>> >>>>>>>>> jordan@internetnz.net.nz <mailto:jordan@internetnz.net.nz> >>> >>>>>>>>> Skype: jordancarter >>> >>>>>>>>> >>> >>>>>>>>> /To promote the Internet's benefits and uses, and protect its >>> >>>>>>>>> potential./ >>> >>>>>>>>> >>> >>>>>>>>> >>> >>>>>>>>> >>> >>>>>>>>> _______________________________________________ >>> >>>>>>>>> Accountability-Cross-Community mailing list >>> >>>>>>>>> Accountability-Cross-Community@icann.org >>> >>>>>>>>> >>> >>>>>>>>> >>> 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mailing list >> Accountability-Cross-Community@icann.org >> https://mm.icann.org/mailman/listinfo/accountability-cross-community >> >> > > > -- > Jordan Carter > > Chief Executive > *InternetNZ* > > 04 495 2118 (office) | +64 21 442 649 (mob) > jordan@internetnz.net.nz > Skype: jordancarter > > *To promote the Internet's benefits and uses, and protect its potential.* > > _______________________________________________ > 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 > >