[CCWG-Accountability] On legal advise concerning California non-profits
Colleagues, During the last hour of today's call there was discussion of the subject of experts, and the lack of an expert in international law identified as a deficit. In the chat a concern was expressed, not for the first time, that an expert in California non-profit law was also needed. I share the view that expert advice on issues relating to converting the Corporation from "no members" to "members", and similar questions, is a pressing need, if this, or any similar question, is to be undertaken by this, or a similar Working Group, e.g., the CWG. That I don't think the membership form feasible is another matter, and my experience in the original Membership Implementation Task Force is just that -- we didn't succeed and we didn't try everything and what we got (eventually) was "At Large" as an Advisory Committee. What I don't share is the view that the advice _must_ come from a source other than the Corporation's legal staff. The Corporation's legal staff have the subject matter expertise -- California's incorporation language and case law, and are bound by the ethics and professional responsibilities requirements of the California Bar Association. If the "member" question is worth considering, and if time is pressing, as we lack a basis to know that the Corporation's legal staff does not have subject matter expertise, nor does Corporation legal staff have an identified conflict of interest with ... an activity or activities it has called into existence -- the CCWG and/or CWG, no an ethics violation, why are we deferring the "member" and similar questions at all? It is one thing for scenarios submitted to the WS4 stream to have (many) hypotheticals of incompetence, conflict or malfeasance, it is quite another to conduct ourselves as if the hypothetical is a fact pattern in the present. The Corporation's legal staff are already paid, a defect that apparently makes finding sources of International Law expertise challenging, and from JJ to Dan to Sam to ... known to many of us, and known for many years. Absent very clear statements to the contrary, we should be able to proceed and determin whether the "member" suggestion has sufficient value to be worth implementation consideration. Eric Brunner-Williams Eugene, Oregon
I had understood, perhaps mistakenly, that ICANN legal staff did not have expertise in California non-profit law. That they are lawyers and members of the California bar would not, in my view, be sufficient -- any more than going to a heart surgeon would help cure cancer. Both are doctors .... It is =not= distrust at all, but rather a recognition that specialization is a reality of law. OTOH, if a member of ICANN staff has such knowledge then so much the better ..... Paul **NOTE: OUR NEW ADDRESS -- EFFECTIVE 12/15/14 *** 509 C St. NE Washington, DC 20002 Paul Rosenzweig paul.rosenzweig@redbranchconsulting.com O: +1 (202) 547-0660 M: +1 (202) 329-9650 Skype: +1 (202) 738-1739 or paul.rosenzweig1066 -----Original Message----- From: Eric Brunner-Williams [mailto:ebw@abenaki.wabanaki.net] Sent: Monday, January 19, 2015 1:28 PM To: 'accountability-cross-community@icann.org' Subject: [CCWG-Accountability] On legal advise concerning California non-profits Colleagues, During the last hour of today's call there was discussion of the subject of experts, and the lack of an expert in international law identified as a deficit. In the chat a concern was expressed, not for the first time, that an expert in California non-profit law was also needed. I share the view that expert advice on issues relating to converting the Corporation from "no members" to "members", and similar questions, is a pressing need, if this, or any similar question, is to be undertaken by this, or a similar Working Group, e.g., the CWG. That I don't think the membership form feasible is another matter, and my experience in the original Membership Implementation Task Force is just that -- we didn't succeed and we didn't try everything and what we got (eventually) was "At Large" as an Advisory Committee. What I don't share is the view that the advice _must_ come from a source other than the Corporation's legal staff. The Corporation's legal staff have the subject matter expertise -- California's incorporation language and case law, and are bound by the ethics and professional responsibilities requirements of the California Bar Association. If the "member" question is worth considering, and if time is pressing, as we lack a basis to know that the Corporation's legal staff does not have subject matter expertise, nor does Corporation legal staff have an identified conflict of interest with ... an activity or activities it has called into existence -- the CCWG and/or CWG, no an ethics violation, why are we deferring the "member" and similar questions at all? It is one thing for scenarios submitted to the WS4 stream to have (many) hypotheticals of incompetence, conflict or malfeasance, it is quite another to conduct ourselves as if the hypothetical is a fact pattern in the present. The Corporation's legal staff are already paid, a defect that apparently makes finding sources of International Law expertise challenging, and from JJ to Dan to Sam to ... known to many of us, and known for many years. Absent very clear statements to the contrary, we should be able to proceed and determin whether the "member" suggestion has sufficient value to be worth implementation consideration. Eric Brunner-Williams Eugene, Oregon _______________________________________________ Accountability-Cross-Community mailing list Accountability-Cross-Community@icann.org https://mm.icann.org/mailman/listinfo/accountability-cross-community
Eric, with respect, I disagree. The entire subject of ensuring ICANN's post-transition accountability ought to be informed with independent legal advice. It seems self-evident that staff cannot be independent when it comes to changes affecting ICANN. No one that I heard called into question the competence or ethics of ICANN legal staff - far from it, the ICANN legal staff appear to be at the highest step of professionalism, competence, and dedication to ICANN's mission. But one of the paths suggested for the transition is to invigorate ICANN as a membership organization with members holding the final say in important decisions. We need to know if that is viable. In 2010, a legal difference of opinion surfaced over California law for non-profit corporations that might prohibit ICANN's board from empowering any entity to overturn board decisions or actions. ICANN said it did - another legal opinion said that conclusion was mistaken. http://www.circleid.com/pdf/Memo_on_ATRT_Question_on_California_Corporate_La... Both opinions cannot be correct, and it would be good to sort this out. ICANN may in future decide to incorporate in country X and before that happens it can take advice whether the laws of country X can accommodate ICANN's legal structure. For now, ICANN has always been (and remains) a California corporation and that is likely to continue through the transition process. It makes sense to sort out California law on this point. David McAuley -----Original Message----- From: accountability-cross-community-bounces@icann.org [mailto:accountability-cross-community-bounces@icann.org] On Behalf Of Paul Rosenzweig Sent: Monday, January 19, 2015 3:08 PM To: 'Eric Brunner-Williams'; accountability-cross-community@icann.org Subject: Re: [CCWG-Accountability] On legal advise concerning California non-profits I had understood, perhaps mistakenly, that ICANN legal staff did not have expertise in California non-profit law. That they are lawyers and members of the California bar would not, in my view, be sufficient -- any more than going to a heart surgeon would help cure cancer. Both are doctors .... It is =not= distrust at all, but rather a recognition that specialization is a reality of law. OTOH, if a member of ICANN staff has such knowledge then so much the better ..... Paul **NOTE: OUR NEW ADDRESS -- EFFECTIVE 12/15/14 *** 509 C St. NE Washington, DC 20002 Paul Rosenzweig paul.rosenzweig@redbranchconsulting.com O: +1 (202) 547-0660 M: +1 (202) 329-9650 Skype: +1 (202) 738-1739 or paul.rosenzweig1066 -----Original Message----- From: Eric Brunner-Williams [mailto:ebw@abenaki.wabanaki.net] Sent: Monday, January 19, 2015 1:28 PM To: 'accountability-cross-community@icann.org' Subject: [CCWG-Accountability] On legal advise concerning California non-profits Colleagues, During the last hour of today's call there was discussion of the subject of experts, and the lack of an expert in international law identified as a deficit. In the chat a concern was expressed, not for the first time, that an expert in California non-profit law was also needed. I share the view that expert advice on issues relating to converting the Corporation from "no members" to "members", and similar questions, is a pressing need, if this, or any similar question, is to be undertaken by this, or a similar Working Group, e.g., the CWG. That I don't think the membership form feasible is another matter, and my experience in the original Membership Implementation Task Force is just that -- we didn't succeed and we didn't try everything and what we got (eventually) was "At Large" as an Advisory Committee. What I don't share is the view that the advice _must_ come from a source other than the Corporation's legal staff. The Corporation's legal staff have the subject matter expertise -- California's incorporation language and case law, and are bound by the ethics and professional responsibilities requirements of the California Bar Association. If the "member" question is worth considering, and if time is pressing, as we lack a basis to know that the Corporation's legal staff does not have subject matter expertise, nor does Corporation legal staff have an identified conflict of interest with ... an activity or activities it has called into existence -- the CCWG and/or CWG, no an ethics violation, why are we deferring the "member" and similar questions at all? It is one thing for scenarios submitted to the WS4 stream to have (many) hypotheticals of incompetence, conflict or malfeasance, it is quite another to conduct ourselves as if the hypothetical is a fact pattern in the present. The Corporation's legal staff are already paid, a defect that apparently makes finding sources of International Law expertise challenging, and from JJ to Dan to Sam to ... known to many of us, and known for many years. Absent very clear statements to the contrary, we should be able to proceed and determin whether the "member" suggestion has sufficient value to be worth implementation consideration. Eric Brunner-Williams Eugene, Oregon _______________________________________________ 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
David, The process that was initiated at the most recent Singapore meeting arises from the Corporation's response to the NTIA's expression of intent to " transition its stewardship". This Working Group is chartered by the Bylaws entities of the Corporation, and we, as chartering organization-appointed members and individual participants, are the volunteers who responded to a Call for Volunteers. Were we acting through some distinct organization, say the EFF or the ACM or some other organization, then the position you offer would be closer to being self-evident. An awkwardness -- at least for me -- in deciding which of the claims made in 2010 is the better one simply upon the reading of the Gunnarson memo (which is nice persuasive writing btw, thanks for including the URL in your response) is the absence of cites to cases where the question was decided by a California court. The mere existence of a memo articulating the contrary can not, of it self, lead to the conclusion that the Corporation legal staff's position on a question is in error. Perhaps a case will turn up that is on point. Eric Brunner-Williams Eugene, Oregon On 1/19/15 2:11 PM, McAuley, David wrote:
Eric, with respect, I disagree.
The entire subject of ensuring ICANN's post-transition accountability ought to be informed with independent legal advice. It seems self-evident that staff cannot be independent when it comes to changes affecting ICANN.
No one that I heard called into question the competence or ethics of ICANN legal staff - far from it, the ICANN legal staff appear to be at the highest step of professionalism, competence, and dedication to ICANN's mission.
But one of the paths suggested for the transition is to invigorate ICANN as a membership organization with members holding the final say in important decisions. We need to know if that is viable.
In 2010, a legal difference of opinion surfaced over California law for non-profit corporations that might prohibit ICANN's board from empowering any entity to overturn board decisions or actions. ICANN said it did - another legal opinion said that conclusion was mistaken. http://www.circleid.com/pdf/Memo_on_ATRT_Question_on_California_Corporate_La...
Both opinions cannot be correct, and it would be good to sort this out.
ICANN may in future decide to incorporate in country X and before that happens it can take advice whether the laws of country X can accommodate ICANN's legal structure. For now, ICANN has always been (and remains) a California corporation and that is likely to continue through the transition process. It makes sense to sort out California law on this point.
David McAuley
-----Original Message----- From: accountability-cross-community-bounces@icann.org [mailto:accountability-cross-community-bounces@icann.org] On Behalf Of Paul Rosenzweig Sent: Monday, January 19, 2015 3:08 PM To: 'Eric Brunner-Williams'; accountability-cross-community@icann.org Subject: Re: [CCWG-Accountability] On legal advise concerning California non-profits
I had understood, perhaps mistakenly, that ICANN legal staff did not have expertise in California non-profit law. That they are lawyers and members of the California bar would not, in my view, be sufficient -- any more than going to a heart surgeon would help cure cancer. Both are doctors .... It is =not= distrust at all, but rather a recognition that specialization is a reality of law. OTOH, if a member of ICANN staff has such knowledge then so much the better .....
Paul
**NOTE: OUR NEW ADDRESS -- EFFECTIVE 12/15/14 *** 509 C St. NE Washington, DC 20002
Paul Rosenzweig paul.rosenzweig@redbranchconsulting.com O: +1 (202) 547-0660 M: +1 (202) 329-9650 Skype: +1 (202) 738-1739 or paul.rosenzweig1066
-----Original Message----- From: Eric Brunner-Williams [mailto:ebw@abenaki.wabanaki.net] Sent: Monday, January 19, 2015 1:28 PM To: 'accountability-cross-community@icann.org' Subject: [CCWG-Accountability] On legal advise concerning California non-profits
Colleagues,
During the last hour of today's call there was discussion of the subject of experts, and the lack of an expert in international law identified as a deficit. In the chat a concern was expressed, not for the first time, that an expert in California non-profit law was also needed.
I share the view that expert advice on issues relating to converting the Corporation from "no members" to "members", and similar questions, is a pressing need, if this, or any similar question, is to be undertaken by this, or a similar Working Group, e.g., the CWG. That I don't think the membership form feasible is another matter, and my experience in the original Membership Implementation Task Force is just that -- we didn't succeed and we didn't try everything and what we got (eventually) was "At Large" as an Advisory Committee.
What I don't share is the view that the advice _must_ come from a source other than the Corporation's legal staff.
The Corporation's legal staff have the subject matter expertise -- California's incorporation language and case law, and are bound by the ethics and professional responsibilities requirements of the California Bar Association.
If the "member" question is worth considering, and if time is pressing, as we lack a basis to know that the Corporation's legal staff does not have subject matter expertise, nor does Corporation legal staff have an identified conflict of interest with ... an activity or activities it has called into existence -- the CCWG and/or CWG, no an ethics violation, why are we deferring the "member" and similar questions at all?
It is one thing for scenarios submitted to the WS4 stream to have (many) hypotheticals of incompetence, conflict or malfeasance, it is quite another to conduct ourselves as if the hypothetical is a fact pattern in the present.
The Corporation's legal staff are already paid, a defect that apparently makes finding sources of International Law expertise challenging, and from JJ to Dan to Sam to ... known to many of us, and known for many years. Absent very clear statements to the contrary, we should be able to proceed and determin whether the "member" suggestion has sufficient value to be worth implementation consideration.
Eric Brunner-Williams Eugene, Oregon _______________________________________________ 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
Dear Eric You may be right that the lengthy Gunnarson memo does not cite California case law. But at least it has the virtue of actually dealing with the text of the statute in a non-summary fashion. Though I have not researched the matter beyond a quick scan of the California case law, I would not be surprised if there were no cases on the topic - such internal corporate structural issues are rarely litigated to a definitive adversarial resolution. More to the point, the ICANN staff legal memo to which it responds (a copy of which is attached) really is nothing more than a conclusory assertion of Board supremacy which lacks the analytical rigor of the Gunnarson memo. All this seems to me to reemphasize the need for a detailed outside examination so that we have a definitive, up-to-date answer. Regards Paul **NOTE: OUR NEW ADDRESS -- EFFECTIVE 12/15/14 *** 509 C St. NE Washington, DC 20002 Paul Rosenzweig <mailto:paul.rosenzweigesq@redbranchconsulting.com> paul.rosenzweig@redbranchconsulting.com O: +1 (202) 547-0660 M: +1 (202) 329-9650 Skype: +1 (202) 738-1739 or paul.rosenzweig1066 <http://www.redbranchconsulting.com/index.php?option=com_content&view=articl e&id=19&Itemid=9> Link to my PGP Key From: Eric Brunner-Williams [mailto:ebw@abenaki.wabanaki.net] Sent: Monday, January 19, 2015 7:20 PM To: McAuley, David; Paul Rosenzweig; accountability-cross-community@icann.org Subject: Re: [CCWG-Accountability] On legal advise concerning California non-profits David, The process that was initiated at the most recent Singapore meeting arises from the Corporation's response to the NTIA's expression of intent to " transition its stewardship". This Working Group is chartered by the Bylaws entities of the Corporation, and we, as chartering organization-appointed members and individual participants, are the volunteers who responded to a Call for Volunteers. Were we acting through some distinct organization, say the EFF or the ACM or some other organization, then the position you offer would be closer to being self-evident. An awkwardness -- at least for me -- in deciding which of the claims made in 2010 is the better one simply upon the reading of the Gunnarson memo (which is nice persuasive writing btw, thanks for including the URL in your response) is the absence of cites to cases where the question was decided by a California court. The mere existence of a memo articulating the contrary can not, of it self, lead to the conclusion that the Corporation legal staff's position on a question is in error. Perhaps a case will turn up that is on point. Eric Brunner-Williams Eugene, Oregon On 1/19/15 2:11 PM, McAuley, David wrote: Eric, with respect, I disagree. The entire subject of ensuring ICANN's post-transition accountability ought to be informed with independent legal advice. It seems self-evident that staff cannot be independent when it comes to changes affecting ICANN. No one that I heard called into question the competence or ethics of ICANN legal staff - far from it, the ICANN legal staff appear to be at the highest step of professionalism, competence, and dedication to ICANN's mission. But one of the paths suggested for the transition is to invigorate ICANN as a membership organization with members holding the final say in important decisions. We need to know if that is viable. In 2010, a legal difference of opinion surfaced over California law for non-profit corporations that might prohibit ICANN's board from empowering any entity to overturn board decisions or actions. ICANN said it did - another legal opinion said that conclusion was mistaken. http://www.circleid.com/pdf/Memo_on_ATRT_Question_on_California_Corporate_La w_RSG.pdf Both opinions cannot be correct, and it would be good to sort this out. ICANN may in future decide to incorporate in country X and before that happens it can take advice whether the laws of country X can accommodate ICANN's legal structure. For now, ICANN has always been (and remains) a California corporation and that is likely to continue through the transition process. It makes sense to sort out California law on this point. David McAuley -----Original Message----- From: accountability-cross-community-bounces@icann.org <mailto:accountability-cross-community-bounces@icann.org> [mailto:accountability-cross-community-bounces@icann.org] On Behalf Of Paul Rosenzweig Sent: Monday, January 19, 2015 3:08 PM To: 'Eric Brunner-Williams'; accountability-cross-community@icann.org <mailto:accountability-cross-community@icann.org> Subject: Re: [CCWG-Accountability] On legal advise concerning California non-profits I had understood, perhaps mistakenly, that ICANN legal staff did not have expertise in California non-profit law. That they are lawyers and members of the California bar would not, in my view, be sufficient -- any more than going to a heart surgeon would help cure cancer. Both are doctors .... It is =not= distrust at all, but rather a recognition that specialization is a reality of law. OTOH, if a member of ICANN staff has such knowledge then so much the better ..... Paul **NOTE: OUR NEW ADDRESS -- EFFECTIVE 12/15/14 *** 509 C St. NE Washington, DC 20002 Paul Rosenzweig paul.rosenzweig@redbranchconsulting.com <mailto:paul.rosenzweig@redbranchconsulting.com> O: +1 (202) 547-0660 M: +1 (202) 329-9650 Skype: +1 (202) 738-1739 or paul.rosenzweig1066 -----Original Message----- From: Eric Brunner-Williams [mailto:ebw@abenaki.wabanaki.net] Sent: Monday, January 19, 2015 1:28 PM To: 'accountability-cross-community@icann.org <mailto:accountability-cross-community@icann.org> ' Subject: [CCWG-Accountability] On legal advise concerning California non-profits Colleagues, During the last hour of today's call there was discussion of the subject of experts, and the lack of an expert in international law identified as a deficit. In the chat a concern was expressed, not for the first time, that an expert in California non-profit law was also needed. I share the view that expert advice on issues relating to converting the Corporation from "no members" to "members", and similar questions, is a pressing need, if this, or any similar question, is to be undertaken by this, or a similar Working Group, e.g., the CWG. That I don't think the membership form feasible is another matter, and my experience in the original Membership Implementation Task Force is just that -- we didn't succeed and we didn't try everything and what we got (eventually) was "At Large" as an Advisory Committee. What I don't share is the view that the advice _must_ come from a source other than the Corporation's legal staff. The Corporation's legal staff have the subject matter expertise -- California's incorporation language and case law, and are bound by the ethics and professional responsibilities requirements of the California Bar Association. If the "member" question is worth considering, and if time is pressing, as we lack a basis to know that the Corporation's legal staff does not have subject matter expertise, nor does Corporation legal staff have an identified conflict of interest with ... an activity or activities it has called into existence -- the CCWG and/or CWG, no an ethics violation, why are we deferring the "member" and similar questions at all? It is one thing for scenarios submitted to the WS4 stream to have (many) hypotheticals of incompetence, conflict or malfeasance, it is quite another to conduct ourselves as if the hypothetical is a fact pattern in the present. The Corporation's legal staff are already paid, a defect that apparently makes finding sources of International Law expertise challenging, and from JJ to Dan to Sam to ... known to many of us, and known for many years. Absent very clear statements to the contrary, we should be able to proceed and determin whether the "member" suggestion has sufficient value to be worth implementation consideration. Eric Brunner-Williams Eugene, Oregon _______________________________________________ Accountability-Cross-Community mailing list Accountability-Cross-Community@icann.org <mailto:Accountability-Cross-Community@icann.org> https://mm.icann.org/mailman/listinfo/accountability-cross-community _______________________________________________ Accountability-Cross-Community mailing list Accountability-Cross-Community@icann.org <mailto:Accountability-Cross-Community@icann.org> https://mm.icann.org/mailman/listinfo/accountability-cross-community
+1 in support of Paul's call for a detailed and expert outside examination of this key issue for our work 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: accountability-cross-community-bounces@icann.org [mailto:accountability-cross-community-bounces@icann.org] On Behalf Of Paul Rosenzweig Sent: Tuesday, January 20, 2015 9:35 AM To: 'Eric Brunner-Williams'; 'McAuley, David'; accountability-cross-community@icann.org Subject: Re: [CCWG-ACCT] [CCWG-Accountability] On legal advise concerning California non-profits Dear Eric You may be right that the lengthy Gunnarson memo does not cite California case law. But at least it has the virtue of actually dealing with the text of the statute in a non-summary fashion. Though I have not researched the matter beyond a quick scan of the California case law, I would not be surprised if there were no cases on the topic - such internal corporate structural issues are rarely litigated to a definitive adversarial resolution. More to the point, the ICANN staff legal memo to which it responds (a copy of which is attached) really is nothing more than a conclusory assertion of Board supremacy which lacks the analytical rigor of the Gunnarson memo. All this seems to me to reemphasize the need for a detailed outside examination so that we have a definitive, up-to-date answer. Regards Paul **NOTE: OUR NEW ADDRESS -- EFFECTIVE 12/15/14 *** 509 C St. NE Washington, DC 20002 Paul Rosenzweig paul.rosenzweig@redbranchconsulting.com<mailto:paul.rosenzweigesq@redbranchconsulting.com> O: +1 (202) 547-0660 M: +1 (202) 329-9650 Skype: +1 (202) 738-1739 or paul.rosenzweig1066 Link to my PGP Key<http://www.redbranchconsulting.com/index.php?option=com_content&view=article...> From: Eric Brunner-Williams [mailto:ebw@abenaki.wabanaki.net] Sent: Monday, January 19, 2015 7:20 PM To: McAuley, David; Paul Rosenzweig; accountability-cross-community@icann.org<mailto:accountability-cross-community@icann.org> Subject: Re: [CCWG-Accountability] On legal advise concerning California non-profits David, The process that was initiated at the most recent Singapore meeting arises from the Corporation's response to the NTIA's expression of intent to " transition its stewardship". This Working Group is chartered by the Bylaws entities of the Corporation, and we, as chartering organization-appointed members and individual participants, are the volunteers who responded to a Call for Volunteers. Were we acting through some distinct organization, say the EFF or the ACM or some other organization, then the position you offer would be closer to being self-evident. An awkwardness -- at least for me -- in deciding which of the claims made in 2010 is the better one simply upon the reading of the Gunnarson memo (which is nice persuasive writing btw, thanks for including the URL in your response) is the absence of cites to cases where the question was decided by a California court. The mere existence of a memo articulating the contrary can not, of it self, lead to the conclusion that the Corporation legal staff's position on a question is in error. Perhaps a case will turn up that is on point. Eric Brunner-Williams Eugene, Oregon On 1/19/15 2:11 PM, McAuley, David wrote: Eric, with respect, I disagree. The entire subject of ensuring ICANN's post-transition accountability ought to be informed with independent legal advice. It seems self-evident that staff cannot be independent when it comes to changes affecting ICANN. No one that I heard called into question the competence or ethics of ICANN legal staff - far from it, the ICANN legal staff appear to be at the highest step of professionalism, competence, and dedication to ICANN's mission. But one of the paths suggested for the transition is to invigorate ICANN as a membership organization with members holding the final say in important decisions. We need to know if that is viable. In 2010, a legal difference of opinion surfaced over California law for non-profit corporations that might prohibit ICANN's board from empowering any entity to overturn board decisions or actions. ICANN said it did - another legal opinion said that conclusion was mistaken. http://www.circleid.com/pdf/Memo_on_ATRT_Question_on_California_Corporate_La... Both opinions cannot be correct, and it would be good to sort this out. ICANN may in future decide to incorporate in country X and before that happens it can take advice whether the laws of country X can accommodate ICANN's legal structure. For now, ICANN has always been (and remains) a California corporation and that is likely to continue through the transition process. It makes sense to sort out California law on this point. David McAuley -----Original Message----- From: accountability-cross-community-bounces@icann.org<mailto:accountability-cross-community-bounces@icann.org> [mailto:accountability-cross-community-bounces@icann.org] On Behalf Of Paul Rosenzweig Sent: Monday, January 19, 2015 3:08 PM To: 'Eric Brunner-Williams'; accountability-cross-community@icann.org<mailto:accountability-cross-community@icann.org> Subject: Re: [CCWG-Accountability] On legal advise concerning California non-profits I had understood, perhaps mistakenly, that ICANN legal staff did not have expertise in California non-profit law. That they are lawyers and members of the California bar would not, in my view, be sufficient -- any more than going to a heart surgeon would help cure cancer. Both are doctors .... It is =not= distrust at all, but rather a recognition that specialization is a reality of law. OTOH, if a member of ICANN staff has such knowledge then so much the better ..... Paul **NOTE: OUR NEW ADDRESS -- EFFECTIVE 12/15/14 *** 509 C St. NE Washington, DC 20002 Paul Rosenzweig paul.rosenzweig@redbranchconsulting.com<mailto:paul.rosenzweig@redbranchconsulting.com> O: +1 (202) 547-0660 M: +1 (202) 329-9650 Skype: +1 (202) 738-1739 or paul.rosenzweig1066 -----Original Message----- From: Eric Brunner-Williams [mailto:ebw@abenaki.wabanaki.net] Sent: Monday, January 19, 2015 1:28 PM To: 'accountability-cross-community@icann.org<mailto:accountability-cross-community@icann.org>' Subject: [CCWG-Accountability] On legal advise concerning California non-profits Colleagues, During the last hour of today's call there was discussion of the subject of experts, and the lack of an expert in international law identified as a deficit. In the chat a concern was expressed, not for the first time, that an expert in California non-profit law was also needed. I share the view that expert advice on issues relating to converting the Corporation from "no members" to "members", and similar questions, is a pressing need, if this, or any similar question, is to be undertaken by this, or a similar Working Group, e.g., the CWG. That I don't think the membership form feasible is another matter, and my experience in the original Membership Implementation Task Force is just that -- we didn't succeed and we didn't try everything and what we got (eventually) was "At Large" as an Advisory Committee. What I don't share is the view that the advice _must_ come from a source other than the Corporation's legal staff. The Corporation's legal staff have the subject matter expertise -- California's incorporation language and case law, and are bound by the ethics and professional responsibilities requirements of the California Bar Association. If the "member" question is worth considering, and if time is pressing, as we lack a basis to know that the Corporation's legal staff does not have subject matter expertise, nor does Corporation legal staff have an identified conflict of interest with ... an activity or activities it has called into existence -- the CCWG and/or CWG, no an ethics violation, why are we deferring the "member" and similar questions at all? It is one thing for scenarios submitted to the WS4 stream to have (many) hypotheticals of incompetence, conflict or malfeasance, it is quite another to conduct ourselves as if the hypothetical is a fact pattern in the present. The Corporation's legal staff are already paid, a defect that apparently makes finding sources of International Law expertise challenging, and from JJ to Dan to Sam to ... known to many of us, and known for many years. Absent very clear statements to the contrary, we should be able to proceed and determin whether the "member" suggestion has sufficient value to be worth implementation consideration. Eric Brunner-Williams Eugene, Oregon _______________________________________________ Accountability-Cross-Community mailing list Accountability-Cross-Community@icann.org<mailto:Accountability-Cross-Community@icann.org> https://mm.icann.org/mailman/listinfo/accountability-cross-community _______________________________________________ Accountability-Cross-Community mailing list Accountability-Cross-Community@icann.org<mailto:Accountability-Cross-Community@icann.org> https://mm.icann.org/mailman/listinfo/accountability-cross-community ________________________________ No virus found in this message. Checked by AVG - www.avg.com<http://www.avg.com> Version: 2015.0.5645 / Virus Database: 4260/8932 - Release Date: 01/14/15
Paul, Lets assume you, Robin, Keith, ... are correct -- just to see where this goes. The hope is to obtain definitive legal advice on one or more permutations of "membership" forms of California non-profits on the question of corporate oversight, and soon, and, because it is important and time is short, for free. I'm not optimistic that this hope will be realized. Eric Brunner-Williams Eugene, Oregon On 1/20/15 6:34 AM, Paul Rosenzweig wrote:
Dear Eric
You may be right that the lengthy Gunnarson memo does not cite California case law. But at least it has the virtue of actually dealing with the text of the statute in a non-summary fashion. Though I have not researched the matter beyond a quick scan of the California case law, I would not be surprised if there were no cases on the topic – such internal corporate structural issues are rarely litigated to a definitive adversarial resolution.
More to the point, the ICANN staff legal memo to which it responds (a copy of which is attached) really is nothing more than a conclusory assertion of Board supremacy which lacks the analytical rigor of the Gunnarson memo. All this seems to me to reemphasize the need for a detailed outside examination so that we have a definitive, up-to-date answer.
Regards
Paul
***NOTE: OUR NEW ADDRESS -- EFFECTIVE 12/15/14 ****
509 C St. NE
Washington, DC 20002
Paul Rosenzweig
paul.rosenzweig@redbranchconsulting.com <mailto:paul.rosenzweigesq@redbranchconsulting.com>
O: +1 (202) 547-0660
M: +1 (202) 329-9650
Skype: +1 (202) 738-1739 or paul.rosenzweig1066
Link to my PGP Key <http://www.redbranchconsulting.com/index.php?option=com_content&view=article...>
*From:*Eric Brunner-Williams [mailto:ebw@abenaki.wabanaki.net] *Sent:* Monday, January 19, 2015 7:20 PM *To:* McAuley, David; Paul Rosenzweig; accountability-cross-community@icann.org *Subject:* Re: [CCWG-Accountability] On legal advise concerning California non-profits
David,
The process that was initiated at the most recent Singapore meeting arises from the Corporation's response to the NTIA's expression of intent to " transition its stewardship". This Working Group is chartered by the Bylaws entities of the Corporation, and we, as chartering organization-appointed members and individual participants, are the volunteers who responded to a Call for Volunteers.
Were we acting through some distinct organization, say the EFF or the ACM or some other organization, then the position you offer would be closer to being self-evident.
An awkwardness -- at least for me -- in deciding which of the claims made in 2010 is the better one simply upon the reading of the Gunnarson memo (which is nice persuasive writing btw, thanks for including the URL in your response) is the absence of cites to cases where the question was decided by a California court. The mere existence of a memo articulating the contrary can not, of it self, lead to the conclusion that the Corporation legal staff's position on a question is in error.
Perhaps a case will turn up that is on point.
Eric Brunner-Williams Eugene, Oregon
On 1/19/15 2:11 PM, McAuley, David wrote:
Eric, with respect, I disagree.
The entire subject of ensuring ICANN's post-transition accountability ought to be informed with independent legal advice. It seems self-evident that staff cannot be independent when it comes to changes affecting ICANN.
No one that I heard called into question the competence or ethics of ICANN legal staff - far from it, the ICANN legal staff appear to be at the highest step of professionalism, competence, and dedication to ICANN's mission.
But one of the paths suggested for the transition is to invigorate ICANN as a membership organization with members holding the final say in important decisions. We need to know if that is viable.
In 2010, a legal difference of opinion surfaced over California law for non-profit corporations that might prohibit ICANN's board from empowering any entity to overturn board decisions or actions. ICANN said it did - another legal opinion said that conclusion was mistaken.http://www.circleid.com/pdf/Memo_on_ATRT_Question_on_California_Corporate_La...
Both opinions cannot be correct, and it would be good to sort this out.
ICANN may in future decide to incorporate in country X and before that happens it can take advice whether the laws of country X can accommodate ICANN's legal structure. For now, ICANN has always been (and remains) a California corporation and that is likely to continue through the transition process. It makes sense to sort out California law on this point.
David McAuley
-----Original Message-----
From:accountability-cross-community-bounces@icann.org <mailto:accountability-cross-community-bounces@icann.org> [mailto:accountability-cross-community-bounces@icann.org] On Behalf Of Paul Rosenzweig
Sent: Monday, January 19, 2015 3:08 PM
To: 'Eric Brunner-Williams';accountability-cross-community@icann.org <mailto:accountability-cross-community@icann.org>
Subject: Re: [CCWG-Accountability] On legal advise concerning California non-profits
I had understood, perhaps mistakenly, that ICANN legal staff did not have
expertise in California non-profit law. That they are lawyers and members
of the California bar would not, in my view, be sufficient -- any more than
going to a heart surgeon would help cure cancer. Both are doctors .... It
is =not= distrust at all, but rather a recognition that specialization is a reality of law. OTOH, if a member of ICANN staff has such knowledge then so much the better .....
Paul
**NOTE: OUR NEW ADDRESS -- EFFECTIVE 12/15/14 ***
509 C St. NE
Washington, DC 20002
Paul Rosenzweig
paul.rosenzweig@redbranchconsulting.com <mailto:paul.rosenzweig@redbranchconsulting.com>
O: +1 (202) 547-0660
M: +1 (202) 329-9650
Skype: +1 (202) 738-1739 or paul.rosenzweig1066
-----Original Message-----
From: Eric Brunner-Williams [mailto:ebw@abenaki.wabanaki.net]
Sent: Monday, January 19, 2015 1:28 PM
To: 'accountability-cross-community@icann.org <mailto:accountability-cross-community@icann.org>'
Subject: [CCWG-Accountability] On legal advise concerning California non-profits
Colleagues,
During the last hour of today's call there was discussion of the subject of experts, and the lack of an expert in international law identified as a deficit. In the chat a concern was expressed, not for the first time, that an expert in California non-profit law was also needed.
I share the view that expert advice on issues relating to converting the Corporation from "no members" to "members", and similar questions, is a pressing need, if this, or any similar question, is to be undertaken by this, or a similar Working Group, e.g., the CWG. That I don't think the membership form feasible is another matter, and my experience in the original Membership Implementation Task Force is just that -- we didn't succeed and we didn't try everything and what we got (eventually) was "At Large" as an Advisory Committee.
What I don't share is the view that the advice _must_ come from a source other than the Corporation's legal staff.
The Corporation's legal staff have the subject matter expertise -- California's incorporation language and case law, and are bound by the ethics and professional responsibilities requirements of the California Bar Association.
If the "member" question is worth considering, and if time is pressing, as we lack a basis to know that the Corporation's legal staff does not have subject matter expertise, nor does Corporation legal staff have an identified conflict of interest with ... an activity or activities it has called into existence -- the CCWG and/or CWG, no an ethics violation, why are we deferring the "member" and similar questions at all?
It is one thing for scenarios submitted to the WS4 stream to have (many) hypotheticals of incompetence, conflict or malfeasance, it is quite another to conduct ourselves as if the hypothetical is a fact pattern in the present.
The Corporation's legal staff are already paid, a defect that apparently makes finding sources of International Law expertise challenging, and from JJ to Dan to Sam to ... known to many of us, and known for many years.
Absent very clear statements to the contrary, we should be able to proceed and determin whether the "member" suggestion has sufficient value to be worth implementation consideration.
Eric Brunner-Williams
Eugene, Oregon
_______________________________________________
Accountability-Cross-Community mailing listAccountability-Cross-Community@icann.org <mailto:Accountability-Cross-Community@icann.org>
https://mm.icann.org/mailman/listinfo/accountability-cross-community
_______________________________________________
Accountability-Cross-Community mailing listAccountability-Cross-Community@icann.org <mailto:Accountability-Cross-Community@icann.org>
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On the contrary, I personally know of at least three attorneys who would gladly do the work and have the capability - it isn't my role to choose though, but I am happy to share a referral if the Chair's request. In any event I am 100% confident that if CCWG authorized the effort that the Chairs could find legal advice on a pro bono basis that would be useful, definitive and timely ... Paul **NOTE: OUR NEW ADDRESS -- EFFECTIVE 12/15/14 *** 509 C St. NE Washington, DC 20002 Paul Rosenzweig <mailto:paul.rosenzweigesq@redbranchconsulting.com> paul.rosenzweig@redbranchconsulting.com O: +1 (202) 547-0660 M: +1 (202) 329-9650 Skype: +1 (202) 738-1739 or paul.rosenzweig1066 <http://www.redbranchconsulting.com/index.php?option=com_content&view=articl e&id=19&Itemid=9> Link to my PGP Key From: Eric Brunner-Williams [mailto:ebw@abenaki.wabanaki.net] Sent: Tuesday, January 20, 2015 11:52 AM To: Paul Rosenzweig; 'McAuley, David'; accountability-cross-community@icann.org Subject: Re: [CCWG-Accountability] On legal advice concerning California non-profits Paul, Lets assume you, Robin, Keith, ... are correct -- just to see where this goes. The hope is to obtain definitive legal advice on one or more permutations of "membership" forms of California non-profits on the question of corporate oversight, and soon, and, because it is important and time is short, for free. I'm not optimistic that this hope will be realized. Eric Brunner-Williams Eugene, Oregon On 1/20/15 6:34 AM, Paul Rosenzweig wrote: Dear Eric You may be right that the lengthy Gunnarson memo does not cite California case law. But at least it has the virtue of actually dealing with the text of the statute in a non-summary fashion. Though I have not researched the matter beyond a quick scan of the California case law, I would not be surprised if there were no cases on the topic - such internal corporate structural issues are rarely litigated to a definitive adversarial resolution. More to the point, the ICANN staff legal memo to which it responds (a copy of which is attached) really is nothing more than a conclusory assertion of Board supremacy which lacks the analytical rigor of the Gunnarson memo. All this seems to me to reemphasize the need for a detailed outside examination so that we have a definitive, up-to-date answer. Regards Paul **NOTE: OUR NEW ADDRESS -- EFFECTIVE 12/15/14 *** 509 C St. NE Washington, DC 20002 Paul Rosenzweig <mailto:paul.rosenzweigesq@redbranchconsulting.com> paul.rosenzweig@redbranchconsulting.com O: +1 (202) 547-0660 M: +1 (202) 329-9650 Skype: +1 (202) 738-1739 or paul.rosenzweig1066 <http://www.redbranchconsulting.com/index.php?option=com_content&view=articl e&id=19&Itemid=9> Link to my PGP Key From: Eric Brunner-Williams [mailto:ebw@abenaki.wabanaki.net] Sent: Monday, January 19, 2015 7:20 PM To: McAuley, David; Paul Rosenzweig; accountability-cross-community@icann.org <mailto:accountability-cross-community@icann.org> Subject: Re: [CCWG-Accountability] On legal advise concerning California non-profits David, The process that was initiated at the most recent Singapore meeting arises from the Corporation's response to the NTIA's expression of intent to " transition its stewardship". This Working Group is chartered by the Bylaws entities of the Corporation, and we, as chartering organization-appointed members and individual participants, are the volunteers who responded to a Call for Volunteers. Were we acting through some distinct organization, say the EFF or the ACM or some other organization, then the position you offer would be closer to being self-evident. An awkwardness -- at least for me -- in deciding which of the claims made in 2010 is the better one simply upon the reading of the Gunnarson memo (which is nice persuasive writing btw, thanks for including the URL in your response) is the absence of cites to cases where the question was decided by a California court. The mere existence of a memo articulating the contrary can not, of it self, lead to the conclusion that the Corporation legal staff's position on a question is in error. Perhaps a case will turn up that is on point. Eric Brunner-Williams Eugene, Oregon On 1/19/15 2:11 PM, McAuley, David wrote: Eric, with respect, I disagree. The entire subject of ensuring ICANN's post-transition accountability ought to be informed with independent legal advice. It seems self-evident that staff cannot be independent when it comes to changes affecting ICANN. No one that I heard called into question the competence or ethics of ICANN legal staff - far from it, the ICANN legal staff appear to be at the highest step of professionalism, competence, and dedication to ICANN's mission. But one of the paths suggested for the transition is to invigorate ICANN as a membership organization with members holding the final say in important decisions. We need to know if that is viable. In 2010, a legal difference of opinion surfaced over California law for non-profit corporations that might prohibit ICANN's board from empowering any entity to overturn board decisions or actions. ICANN said it did - another legal opinion said that conclusion was mistaken. http://www.circleid.com/pdf/Memo_on_ATRT_Question_on_California_Corporate_La w_RSG.pdf Both opinions cannot be correct, and it would be good to sort this out. ICANN may in future decide to incorporate in country X and before that happens it can take advice whether the laws of country X can accommodate ICANN's legal structure. For now, ICANN has always been (and remains) a California corporation and that is likely to continue through the transition process. It makes sense to sort out California law on this point. David McAuley -----Original Message----- From: accountability-cross-community-bounces@icann.org <mailto:accountability-cross-community-bounces@icann.org> [mailto:accountability-cross-community-bounces@icann.org] On Behalf Of Paul Rosenzweig Sent: Monday, January 19, 2015 3:08 PM To: 'Eric Brunner-Williams'; accountability-cross-community@icann.org <mailto:accountability-cross-community@icann.org> Subject: Re: [CCWG-Accountability] On legal advise concerning California non-profits I had understood, perhaps mistakenly, that ICANN legal staff did not have expertise in California non-profit law. That they are lawyers and members of the California bar would not, in my view, be sufficient -- any more than going to a heart surgeon would help cure cancer. Both are doctors .... It is =not= distrust at all, but rather a recognition that specialization is a reality of law. OTOH, if a member of ICANN staff has such knowledge then so much the better ..... Paul **NOTE: OUR NEW ADDRESS -- EFFECTIVE 12/15/14 *** 509 C St. NE Washington, DC 20002 Paul Rosenzweig paul.rosenzweig@redbranchconsulting.com <mailto:paul.rosenzweig@redbranchconsulting.com> O: +1 (202) 547-0660 M: +1 (202) 329-9650 Skype: +1 (202) 738-1739 or paul.rosenzweig1066 -----Original Message----- From: Eric Brunner-Williams [mailto:ebw@abenaki.wabanaki.net] Sent: Monday, January 19, 2015 1:28 PM To: 'accountability-cross-community@icann.org <mailto:accountability-cross-community@icann.org> ' Subject: [CCWG-Accountability] On legal advise concerning California non-profits Colleagues, During the last hour of today's call there was discussion of the subject of experts, and the lack of an expert in international law identified as a deficit. In the chat a concern was expressed, not for the first time, that an expert in California non-profit law was also needed. I share the view that expert advice on issues relating to converting the Corporation from "no members" to "members", and similar questions, is a pressing need, if this, or any similar question, is to be undertaken by this, or a similar Working Group, e.g., the CWG. That I don't think the membership form feasible is another matter, and my experience in the original Membership Implementation Task Force is just that -- we didn't succeed and we didn't try everything and what we got (eventually) was "At Large" as an Advisory Committee. What I don't share is the view that the advice _must_ come from a source other than the Corporation's legal staff. The Corporation's legal staff have the subject matter expertise -- California's incorporation language and case law, and are bound by the ethics and professional responsibilities requirements of the California Bar Association. If the "member" question is worth considering, and if time is pressing, as we lack a basis to know that the Corporation's legal staff does not have subject matter expertise, nor does Corporation legal staff have an identified conflict of interest with ... an activity or activities it has called into existence -- the CCWG and/or CWG, no an ethics violation, why are we deferring the "member" and similar questions at all? It is one thing for scenarios submitted to the WS4 stream to have (many) hypotheticals of incompetence, conflict or malfeasance, it is quite another to conduct ourselves as if the hypothetical is a fact pattern in the present. The Corporation's legal staff are already paid, a defect that apparently makes finding sources of International Law expertise challenging, and from JJ to Dan to Sam to ... known to many of us, and known for many years. Absent very clear statements to the contrary, we should be able to proceed and determin whether the "member" suggestion has sufficient value to be worth implementation consideration. Eric Brunner-Williams Eugene, Oregon _______________________________________________ Accountability-Cross-Community mailing list Accountability-Cross-Community@icann.org <mailto:Accountability-Cross-Community@icann.org> https://mm.icann.org/mailman/listinfo/accountability-cross-community _______________________________________________ Accountability-Cross-Community mailing list Accountability-Cross-Community@icann.org <mailto:Accountability-Cross-Community@icann.org> https://mm.icann.org/mailman/listinfo/accountability-cross-community
Thanks Paul. I would fully support compiling a list of potential candidates and request that the chairs consider this. Best, Keith On Jan 20, 2015, at 12:47 PM, "Paul Rosenzweig" <paul.rosenzweig@redbranchconsulting.com<mailto:paul.rosenzweig@redbranchconsulting.com>> wrote: On the contrary, I personally know of at least three attorneys who would gladly do the work and have the capability – it isn’t my role to choose though, but I am happy to share a referral if the Chair’s request. In any event I am 100% confident that if CCWG authorized the effort that the Chairs could find legal advice on a pro bono basis that would be useful, definitive and timely ….. Paul **NOTE: OUR NEW ADDRESS -- EFFECTIVE 12/15/14 *** 509 C St. NE Washington, DC 20002 Paul Rosenzweig paul.rosenzweig@redbranchconsulting.com<mailto:paul.rosenzweigesq@redbranchconsulting.com> O: +1 (202) 547-0660 M: +1 (202) 329-9650 Skype: +1 (202) 738-1739 or paul.rosenzweig1066 Link to my PGP Key<http://www.redbranchconsulting.com/index.php?option=com_content&view=article...> From: Eric Brunner-Williams [mailto:ebw@abenaki.wabanaki.net] Sent: Tuesday, January 20, 2015 11:52 AM To: Paul Rosenzweig; 'McAuley, David'; accountability-cross-community@icann.org<mailto:accountability-cross-community@icann.org> Subject: Re: [CCWG-Accountability] On legal advice concerning California non-profits Paul, Lets assume you, Robin, Keith, ... are correct -- just to see where this goes. The hope is to obtain definitive legal advice on one or more permutations of "membership" forms of California non-profits on the question of corporate oversight, and soon, and, because it is important and time is short, for free. I'm not optimistic that this hope will be realized. Eric Brunner-Williams Eugene, Oregon On 1/20/15 6:34 AM, Paul Rosenzweig wrote: Dear Eric You may be right that the lengthy Gunnarson memo does not cite California case law. But at least it has the virtue of actually dealing with the text of the statute in a non-summary fashion. Though I have not researched the matter beyond a quick scan of the California case law, I would not be surprised if there were no cases on the topic – such internal corporate structural issues are rarely litigated to a definitive adversarial resolution. More to the point, the ICANN staff legal memo to which it responds (a copy of which is attached) really is nothing more than a conclusory assertion of Board supremacy which lacks the analytical rigor of the Gunnarson memo. All this seems to me to reemphasize the need for a detailed outside examination so that we have a definitive, up-to-date answer. Regards Paul **NOTE: OUR NEW ADDRESS -- EFFECTIVE 12/15/14 *** 509 C St. NE Washington, DC 20002 Paul Rosenzweig paul.rosenzweig@redbranchconsulting.com<mailto:paul.rosenzweigesq@redbranchconsulting.com> O: +1 (202) 547-0660 M: +1 (202) 329-9650 Skype: +1 (202) 738-1739 or paul.rosenzweig1066 Link to my PGP Key<http://www.redbranchconsulting.com/index.php?option=com_content&view=article...> From: Eric Brunner-Williams [mailto:ebw@abenaki.wabanaki.net] Sent: Monday, January 19, 2015 7:20 PM To: McAuley, David; Paul Rosenzweig; accountability-cross-community@icann.org<mailto:accountability-cross-community@icann.org> Subject: Re: [CCWG-Accountability] On legal advise concerning California non-profits David, The process that was initiated at the most recent Singapore meeting arises from the Corporation's response to the NTIA's expression of intent to " transition its stewardship". This Working Group is chartered by the Bylaws entities of the Corporation, and we, as chartering organization-appointed members and individual participants, are the volunteers who responded to a Call for Volunteers. Were we acting through some distinct organization, say the EFF or the ACM or some other organization, then the position you offer would be closer to being self-evident. An awkwardness -- at least for me -- in deciding which of the claims made in 2010 is the better one simply upon the reading of the Gunnarson memo (which is nice persuasive writing btw, thanks for including the URL in your response) is the absence of cites to cases where the question was decided by a California court. The mere existence of a memo articulating the contrary can not, of it self, lead to the conclusion that the Corporation legal staff's position on a question is in error. Perhaps a case will turn up that is on point. Eric Brunner-Williams Eugene, Oregon On 1/19/15 2:11 PM, McAuley, David wrote: Eric, with respect, I disagree. The entire subject of ensuring ICANN's post-transition accountability ought to be informed with independent legal advice. It seems self-evident that staff cannot be independent when it comes to changes affecting ICANN. No one that I heard called into question the competence or ethics of ICANN legal staff - far from it, the ICANN legal staff appear to be at the highest step of professionalism, competence, and dedication to ICANN's mission. But one of the paths suggested for the transition is to invigorate ICANN as a membership organization with members holding the final say in important decisions. We need to know if that is viable. In 2010, a legal difference of opinion surfaced over California law for non-profit corporations that might prohibit ICANN's board from empowering any entity to overturn board decisions or actions. ICANN said it did - another legal opinion said that conclusion was mistaken. http://www.circleid.com/pdf/Memo_on_ATRT_Question_on_California_Corporate_La... Both opinions cannot be correct, and it would be good to sort this out. ICANN may in future decide to incorporate in country X and before that happens it can take advice whether the laws of country X can accommodate ICANN's legal structure. For now, ICANN has always been (and remains) a California corporation and that is likely to continue through the transition process. It makes sense to sort out California law on this point. David McAuley -----Original Message----- From: accountability-cross-community-bounces@icann.org<mailto:accountability-cross-community-bounces@icann.org> [mailto:accountability-cross-community-bounces@icann.org] On Behalf Of Paul Rosenzweig Sent: Monday, January 19, 2015 3:08 PM To: 'Eric Brunner-Williams'; accountability-cross-community@icann.org<mailto:accountability-cross-community@icann.org> Subject: Re: [CCWG-Accountability] On legal advise concerning California non-profits I had understood, perhaps mistakenly, that ICANN legal staff did not have expertise in California non-profit law. That they are lawyers and members of the California bar would not, in my view, be sufficient -- any more than going to a heart surgeon would help cure cancer. Both are doctors .... It is =not= distrust at all, but rather a recognition that specialization is a reality of law. OTOH, if a member of ICANN staff has such knowledge then so much the better ..... Paul **NOTE: OUR NEW ADDRESS -- EFFECTIVE 12/15/14 *** 509 C St. NE Washington, DC 20002 Paul Rosenzweig paul.rosenzweig@redbranchconsulting.com<mailto:paul.rosenzweig@redbranchconsulting.com> O: +1 (202) 547-0660 M: +1 (202) 329-9650 Skype: +1 (202) 738-1739 or paul.rosenzweig1066 -----Original Message----- From: Eric Brunner-Williams [mailto:ebw@abenaki.wabanaki.net] Sent: Monday, January 19, 2015 1:28 PM To: 'accountability-cross-community@icann.org<mailto:accountability-cross-community@icann.org>' Subject: [CCWG-Accountability] On legal advise concerning California non-profits Colleagues, During the last hour of today's call there was discussion of the subject of experts, and the lack of an expert in international law identified as a deficit. In the chat a concern was expressed, not for the first time, that an expert in California non-profit law was also needed. I share the view that expert advice on issues relating to converting the Corporation from "no members" to "members", and similar questions, is a pressing need, if this, or any similar question, is to be undertaken by this, or a similar Working Group, e.g., the CWG. That I don't think the membership form feasible is another matter, and my experience in the original Membership Implementation Task Force is just that -- we didn't succeed and we didn't try everything and what we got (eventually) was "At Large" as an Advisory Committee. What I don't share is the view that the advice _must_ come from a source other than the Corporation's legal staff. The Corporation's legal staff have the subject matter expertise -- California's incorporation language and case law, and are bound by the ethics and professional responsibilities requirements of the California Bar Association. If the "member" question is worth considering, and if time is pressing, as we lack a basis to know that the Corporation's legal staff does not have subject matter expertise, nor does Corporation legal staff have an identified conflict of interest with ... an activity or activities it has called into existence -- the CCWG and/or CWG, no an ethics violation, why are we deferring the "member" and similar questions at all? It is one thing for scenarios submitted to the WS4 stream to have (many) hypotheticals of incompetence, conflict or malfeasance, it is quite another to conduct ourselves as if the hypothetical is a fact pattern in the present. The Corporation's legal staff are already paid, a defect that apparently makes finding sources of International Law expertise challenging, and from JJ to Dan to Sam to ... known to many of us, and known for many years. Absent very clear statements to the contrary, we should be able to proceed and determin whether the "member" suggestion has sufficient value to be worth implementation consideration. Eric Brunner-Williams Eugene, Oregon _______________________________________________ Accountability-Cross-Community mailing list Accountability-Cross-Community@icann.org<mailto:Accountability-Cross-Community@icann.org> https://mm.icann.org/mailman/listinfo/accountability-cross-community _______________________________________________ Accountability-Cross-Community mailing list Accountability-Cross-Community@icann.org<mailto:Accountability-Cross-Community@icann.org> https://mm.icann.org/mailman/listinfo/accountability-cross-community _______________________________________________ Accountability-Cross-Community mailing list Accountability-Cross-Community@icann.org<mailto:Accountability-Cross-Community@icann.org> https://mm.icann.org/mailman/listinfo/accountability-cross-community
Eric, I have great respect for the ICANN legal staff, but I¹m not aware that anyone on staff possesses legal expertise on international law and/or California not-for-profit law. More that that, we know that ICANN has asserted various limitations on some of the accountability mechanisms based on the ³fiduciary duty² of Board members to the corporation. Whether the ideas in question are good or bad, there is some skepticism - and a conclusion by the Berkman Center during the first ATRT review that additional legal research was needed, about the legal positions asserted by ICANN¹s legal staff and its outside counsel. Given the above, and ethical obligation of counsel to defend the views of its client vigorously, I disagree with your view that ICANN¹s counsel is well situated to provide the legal analysis we need. J. Beckwith Burr Neustar, Inc. / Deputy General Counsel and Chief Privacy Officer 1775 Pennsylvania Avenue NW, Washington, DC 20006 Office: + 1.202.533.2932 Mobile: +1.202.352.6367 / becky.burr@neustar.biz / www.neustar.biz On 1/19/15, 7:28 PM, "Eric Brunner-Williams" <ebw@abenaki.wabanaki.net> wrote:
Colleagues,
During the last hour of today's call there was discussion of the subject of experts, and the lack of an expert in international law identified as a deficit. In the chat a concern was expressed, not for the first time, that an expert in California non-profit law was also needed.
I share the view that expert advice on issues relating to converting the Corporation from "no members" to "members", and similar questions, is a pressing need, if this, or any similar question, is to be undertaken by this, or a similar Working Group, e.g., the CWG. That I don't think the membership form feasible is another matter, and my experience in the original Membership Implementation Task Force is just that -- we didn't succeed and we didn't try everything and what we got (eventually) was "At Large" as an Advisory Committee.
What I don't share is the view that the advice _must_ come from a source other than the Corporation's legal staff.
The Corporation's legal staff have the subject matter expertise -- California's incorporation language and case law, and are bound by the ethics and professional responsibilities requirements of the California Bar Association.
If the "member" question is worth considering, and if time is pressing, as we lack a basis to know that the Corporation's legal staff does not have subject matter expertise, nor does Corporation legal staff have an identified conflict of interest with ... an activity or activities it has called into existence -- the CCWG and/or CWG, no an ethics violation, why are we deferring the "member" and similar questions at all?
It is one thing for scenarios submitted to the WS4 stream to have (many) hypotheticals of incompetence, conflict or malfeasance, it is quite another to conduct ourselves as if the hypothetical is a fact pattern in the present.
The Corporation's legal staff are already paid, a defect that apparently makes finding sources of International Law expertise challenging, and from JJ to Dan to Sam to ... known to many of us, and known for many years. Absent very clear statements to the contrary, we should be able to proceed and determin whether the "member" suggestion has sufficient value to be worth implementation consideration.
Eric Brunner-Williams Eugene, Oregon _______________________________________________ Accountability-Cross-Community mailing list Accountability-Cross-Community@icann.org https://urldefense.proofpoint.com/v2/url?u=https-3A__mm.icann.org_mailman_ listinfo_accountability-2Dcross-2Dcommunity&d=AwICAg&c=MOptNlVtIETeDALC_lU Lrw&r=62cJFOifzm6X_GRlaq8Mo8TjDmrxdYahOP8WDDkMr4k&m=dzielj0xe9EF0XMD0pTpND bhg29LAC49U9BMgHK2omQ&s=XKgrbBjSe02TMtfCVIzFXBMByA9Ol1pcuNS_i_grYWM&e=
+1. We need wholly independent and expert legal advice. 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 Jan 22, 2015, at 9:50 AM, Burr, Becky <Becky.Burr@neustar.biz> wrote:
Eric, I have great respect for the ICANN legal staff, but I¹m not aware that anyone on staff possesses legal expertise on international law and/or California not-for-profit law. More that that, we know that ICANN has asserted various limitations on some of the accountability mechanisms based on the ³fiduciary duty² of Board members to the corporation. Whether the ideas in question are good or bad, there is some skepticism - and a conclusion by the Berkman Center during the first ATRT review that additional legal research was needed, about the legal positions asserted by ICANN¹s legal staff and its outside counsel. Given the above, and ethical obligation of counsel to defend the views of its client vigorously, I disagree with your view that ICANN¹s counsel is well situated to provide the legal analysis we need.
J. Beckwith Burr Neustar, Inc. / Deputy General Counsel and Chief Privacy Officer 1775 Pennsylvania Avenue NW, Washington, DC 20006 Office: + 1.202.533.2932 Mobile: +1.202.352.6367 / becky.burr@neustar.biz / www.neustar.biz
On 1/19/15, 7:28 PM, "Eric Brunner-Williams" <ebw@abenaki.wabanaki.net> wrote:
Colleagues,
During the last hour of today's call there was discussion of the subject of experts, and the lack of an expert in international law identified as a deficit. In the chat a concern was expressed, not for the first time, that an expert in California non-profit law was also needed.
I share the view that expert advice on issues relating to converting the Corporation from "no members" to "members", and similar questions, is a pressing need, if this, or any similar question, is to be undertaken by this, or a similar Working Group, e.g., the CWG. That I don't think the membership form feasible is another matter, and my experience in the original Membership Implementation Task Force is just that -- we didn't succeed and we didn't try everything and what we got (eventually) was "At Large" as an Advisory Committee.
What I don't share is the view that the advice _must_ come from a source other than the Corporation's legal staff.
The Corporation's legal staff have the subject matter expertise -- California's incorporation language and case law, and are bound by the ethics and professional responsibilities requirements of the California Bar Association.
If the "member" question is worth considering, and if time is pressing, as we lack a basis to know that the Corporation's legal staff does not have subject matter expertise, nor does Corporation legal staff have an identified conflict of interest with ... an activity or activities it has called into existence -- the CCWG and/or CWG, no an ethics violation, why are we deferring the "member" and similar questions at all?
It is one thing for scenarios submitted to the WS4 stream to have (many) hypotheticals of incompetence, conflict or malfeasance, it is quite another to conduct ourselves as if the hypothetical is a fact pattern in the present.
The Corporation's legal staff are already paid, a defect that apparently makes finding sources of International Law expertise challenging, and from JJ to Dan to Sam to ... known to many of us, and known for many years. Absent very clear statements to the contrary, we should be able to proceed and determin whether the "member" suggestion has sufficient value to be worth implementation consideration.
Eric Brunner-Williams Eugene, Oregon _______________________________________________ Accountability-Cross-Community mailing list Accountability-Cross-Community@icann.org https://urldefense.proofpoint.com/v2/url?u=https-3A__mm.icann.org_mailman_ listinfo_accountability-2Dcross-2Dcommunity&d=AwICAg&c=MOptNlVtIETeDALC_lU Lrw&r=62cJFOifzm6X_GRlaq8Mo8TjDmrxdYahOP8WDDkMr4k&m=dzielj0xe9EF0XMD0pTpND bhg29LAC49U9BMgHK2omQ&s=XKgrbBjSe02TMtfCVIzFXBMByA9Ol1pcuNS_i_grYWM&e=
_______________________________________________ Accountability-Cross-Community mailing list Accountability-Cross-Community@icann.org https://mm.icann.org/mailman/listinfo/accountability-cross-community
Eric, I was not looking at it from that perspective, but Becky make sense, ie if we get an opinion that is contrary to what ICANN has previously asserted in court it would put ICANN in a difficult position. Almost as much as their Counsel estopping ICANN on anything not yet litigated. So, we need "unconflicted" Counsel. el On 2015-01-22 16:49, Burr, Becky wrote:
Eric, I have great respect for the ICANN legal staff, but I¹m not aware that anyone on staff possesses legal expertise on international law and/or California not-for-profit law. More that that, we know that ICANN has asserted various limitations on some of the accountability mechanisms based on the ³fiduciary duty² of Board members to the corporation. Whether the ideas in question are good or bad, there is some skepticism - and a conclusion by the Berkman Center during the first ATRT review that additional legal research was needed, about the legal positions asserted by ICANN¹s legal staff and its outside counsel. Given the above, and ethical obligation of counsel to defend the views of its client vigorously, I disagree with your view that ICANN¹s counsel is well situated to provide the legal analysis we need.
J. Beckwith Burr
[...]
I agree with Becky, Eberhard, Phil, Paul and David, for all their reasons and more. If ICANN legal had all the expertise necessary, it would be a bad idea, due to lack of independence, ethical obligations to their client, etc. And even if they are reasonably well-informed on California non-profit law, that is necessary but not sufficient for the task at hand. Someone with considerable expertise and experience in corporate governance (especially non-profit) and corporate structuring in a variety of contexts (a "big brain," so to speak) is also necessary. (Notably, when ICANN has needed significant advice in this area in the past, it is my impression that they have turned to the international mega firm of Jones Day (the biggest thing to come out of Cleveland, Ohio since Greg Shatan *Gregory S. Shatan * Partner | *Abelman Frayne & Schwab* *666 Third Avenue **|** New York, NY 10017-5621* *Direct* 212-885-9253 *| **Main* 212-949-9022 *Fax* 212-949-9190 *|* *Cell *917-816-6428 *gsshatan@lawabel.com <gsshatan@lawabel.com>* *ICANN-related: gregshatanipc@gmail.com <gregshatanipc@gmail.com> * *www.lawabel.com <http://www.lawabel.com/>* On Thu, Jan 22, 2015 at 9:59 AM, Dr Eberhard Lisse <el@lisse.na> wrote:
Eric,
I was not looking at it from that perspective, but Becky make sense, ie if we get an opinion that is contrary to what ICANN has previously asserted in court it would put ICANN in a difficult position.
Almost as much as their Counsel estopping ICANN on anything not yet litigated.
So, we need "unconflicted" Counsel.
el
On 2015-01-22 16:49, Burr, Becky wrote:
Eric, I have great respect for the ICANN legal staff, but I¹m not aware that anyone on staff possesses legal expertise on international law and/or California not-for-profit law. More that that, we know that ICANN has asserted various limitations on some of the accountability mechanisms based on the ³fiduciary duty² of Board members to the corporation. Whether the ideas in question are good or bad, there is some skepticism - and a conclusion by the Berkman Center during the first ATRT review that additional legal research was needed, about the legal positions asserted by ICANN¹s legal staff and its outside counsel. Given the above, and ethical obligation of counsel to defend the views of its client vigorously, I disagree with your view that ICANN¹s counsel is well situated to provide the legal analysis we need.
J. Beckwith Burr
[...] _______________________________________________ Accountability-Cross-Community mailing list Accountability-Cross-Community@icann.org https://mm.icann.org/mailman/listinfo/accountability-cross-community
Hi, Additionally, borrowing from a another professional field: whenever contemplating surgery, get a second opinion. avri On 22-Jan-15 12:00, Greg Shatan wrote:
I agree with Becky, Eberhard, Phil, Paul and David, for all their reasons and more. If ICANN legal had all the expertise necessary, it would be a bad idea, due to lack of independence, ethical obligations to their client, etc. And even if they are reasonably well-informed on California non-profit law, that is necessary but not sufficient for the task at hand. Someone with considerable expertise and experience in corporate governance (especially non-profit) and corporate structuring in a variety of contexts (a "big brain," so to speak) is also necessary.
(Notably, when ICANN has needed significant advice in this area in the past, it is my impression that they have turned to the international mega firm of Jones Day (the biggest thing to come out of Cleveland, Ohio since
Greg Shatan
*Gregory S. Shatan *
Partner|* **Abelman Frayne & Schwab*
*666 Third Avenue **|**New York, NY 10017-5621*
*Direct* 212-885-9253 *| **Main* 212-949-9022
*Fax* 212-949-9190 *|* *Cell *917-816-6428
*/gsshatan@lawabel.com <mailto:gsshatan@lawabel.com>/*
*ICANN-related: gregshatanipc@gmail.com <mailto:gregshatanipc@gmail.com> *
*/www.lawabel.com <http://www.lawabel.com/>/*
On Thu, Jan 22, 2015 at 9:59 AM, Dr Eberhard Lisse <el@lisse.na <mailto:el@lisse.na>> wrote:
Eric,
I was not looking at it from that perspective, but Becky make sense, ie if we get an opinion that is contrary to what ICANN has previously asserted in court it would put ICANN in a difficult position.
Almost as much as their Counsel estopping ICANN on anything not yet litigated.
So, we need "unconflicted" Counsel.
el
On 2015-01-22 16:49, Burr, Becky wrote: > Eric, I have great respect for the ICANN legal staff, but I¹m not > aware that anyone on staff possesses legal expertise on > international law and/or California not-for-profit law. More that > that, we know that ICANN has asserted various limitations on some > of the accountability mechanisms based on the ³fiduciary duty² > of Board members to the corporation. Whether the ideas in > question are good or bad, there is some skepticism - and a > conclusion by the Berkman Center during the first ATRT review that > additional legal research was needed, about the legal positions > asserted by ICANN¹s legal staff and its outside counsel. Given > the above, and ethical obligation of counsel to defend the views > of its client vigorously, I disagree with your view that ICANN¹s > counsel is well situated to provide the legal analysis we need. > > > > > J. Beckwith Burr
[...] _______________________________________________ Accountability-Cross-Community mailing list Accountability-Cross-Community@icann.org <mailto: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
As a California attorney who has set up a number of California nonprofit corporations over the last decades and who understands the fiduciary relationship owed by an attorney to the corporation she represents and by a board member to the corporation it oversees, I can say we must have external legal advice to avoid both actual conflict of interest, but also to preclude the dismissal of the advice because of claims of conflict of interest. This matter is so legally complex that we need very specialized legal expertise - not something a general council's office is best suited for as they work on a broad range of issues for one specific client. That is why ICANN legal dept often utilizes the services of outside council to provide specific highly specialized legal expertise to the legal dept. on particular issues. So I agree with Becky, Eberhard, Phil, Paul, David, and Avri for all of these reasons. Thanks, Robin On Jan 22, 2015, at 9:46 AM, Avri Doria wrote:
Hi,
Additionally, borrowing from a another professional field: whenever contemplating surgery, get a second opinion.
avri
On 22-Jan-15 12:00, Greg Shatan wrote:
I agree with Becky, Eberhard, Phil, Paul and David, for all their reasons and more. If ICANN legal had all the expertise necessary, it would be a bad idea, due to lack of independence, ethical obligations to their client, etc. And even if they are reasonably well-informed on California non-profit law, that is necessary but not sufficient for the task at hand. Someone with considerable expertise and experience in corporate governance (especially non-profit) and corporate structuring in a variety of contexts (a "big brain," so to speak) is also necessary.
(Notably, when ICANN has needed significant advice in this area in the past, it is my impression that they have turned to the international mega firm of Jones Day (the biggest thing to come out of Cleveland, Ohio since
Greg Shatan
Gregory S. Shatan
Partner | Abelman Frayne & Schwab
666 Third Avenue | New York, NY 10017-5621
Direct 212-885-9253 | Main 212-949-9022
Fax 212-949-9190 | Cell 917-816-6428
gsshatan@lawabel.com
ICANN-related: gregshatanipc@gmail.com
www.lawabel.com
On Thu, Jan 22, 2015 at 9:59 AM, Dr Eberhard Lisse <el@lisse.na> wrote: Eric,
I was not looking at it from that perspective, but Becky make sense, ie if we get an opinion that is contrary to what ICANN has previously asserted in court it would put ICANN in a difficult position.
Almost as much as their Counsel estopping ICANN on anything not yet litigated.
So, we need "unconflicted" Counsel.
el
On 2015-01-22 16:49, Burr, Becky wrote:
Eric, I have great respect for the ICANN legal staff, but I¹m not aware that anyone on staff possesses legal expertise on international law and/or California not-for-profit law. More that that, we know that ICANN has asserted various limitations on some of the accountability mechanisms based on the ³fiduciary duty² of Board members to the corporation. Whether the ideas in question are good or bad, there is some skepticism - and a conclusion by the Berkman Center during the first ATRT review that additional legal research was needed, about the legal positions asserted by ICANN¹s legal staff and its outside counsel. Given the above, and ethical obligation of counsel to defend the views of its client vigorously, I disagree with your view that ICANN¹s counsel is well situated to provide the legal analysis we need.
J. Beckwith Burr
[...] _______________________________________________ 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
_______________________________________________ Accountability-Cross-Community mailing list Accountability-Cross-Community@icann.org https://mm.icann.org/mailman/listinfo/accountability-cross-community
+1 Robin On Jan 22, 2015, at 8:41 PM, "Robin Gross" <robin@ipjustice.org<mailto:robin@ipjustice.org>> wrote: As a California attorney who has set up a number of California nonprofit corporations over the last decades and who understands the fiduciary relationship owed by an attorney to the corporation she represents and by a board member to the corporation it oversees, I can say we must have external legal advice to avoid both actual conflict of interest, but also to preclude the dismissal of the advice because of claims of conflict of interest. This matter is so legally complex that we need very specialized legal expertise - not something a general council's office is best suited for as they work on a broad range of issues for one specific client. That is why ICANN legal dept often utilizes the services of outside council to provide specific highly specialized legal expertise to the legal dept. on particular issues. So I agree with Becky, Eberhard, Phil, Paul, David, and Avri for all of these reasons. Thanks, Robin On Jan 22, 2015, at 9:46 AM, Avri Doria wrote: Hi, Additionally, borrowing from a another professional field: whenever contemplating surgery, get a second opinion. avri On 22-Jan-15 12:00, Greg Shatan wrote: I agree with Becky, Eberhard, Phil, Paul and David, for all their reasons and more. If ICANN legal had all the expertise necessary, it would be a bad idea, due to lack of independence, ethical obligations to their client, etc. And even if they are reasonably well-informed on California non-profit law, that is necessary but not sufficient for the task at hand. Someone with considerable expertise and experience in corporate governance (especially non-profit) and corporate structuring in a variety of contexts (a "big brain," so to speak) is also necessary. (Notably, when ICANN has needed significant advice in this area in the past, it is my impression that they have turned to the international mega firm of Jones Day (the biggest thing to come out of Cleveland, Ohio since Greg Shatan Gregory S. Shatan Partner | Abelman Frayne & Schwab 666 Third Avenue | New York, NY 10017-5621 Direct 212-885-9253 | Main 212-949-9022 Fax 212-949-9190 | Cell 917-816-6428 gsshatan@lawabel.com<mailto:gsshatan@lawabel.com> ICANN-related: gregshatanipc@gmail.com<mailto:gregshatanipc@gmail.com> www.lawabel.com<http://www.lawabel.com/> On Thu, Jan 22, 2015 at 9:59 AM, Dr Eberhard Lisse <el@lisse.na<mailto:el@lisse.na>> wrote: Eric, I was not looking at it from that perspective, but Becky make sense, ie if we get an opinion that is contrary to what ICANN has previously asserted in court it would put ICANN in a difficult position. Almost as much as their Counsel estopping ICANN on anything not yet litigated. So, we need "unconflicted" Counsel. el On 2015-01-22 16:49, Burr, Becky wrote:
Eric, I have great respect for the ICANN legal staff, but I¹m not aware that anyone on staff possesses legal expertise on international law and/or California not-for-profit law. More that that, we know that ICANN has asserted various limitations on some of the accountability mechanisms based on the ³fiduciary duty² of Board members to the corporation. Whether the ideas in question are good or bad, there is some skepticism - and a conclusion by the Berkman Center during the first ATRT review that additional legal research was needed, about the legal positions asserted by ICANN¹s legal staff and its outside counsel. Given the above, and ethical obligation of counsel to defend the views of its client vigorously, I disagree with your view that ICANN¹s counsel is well situated to provide the legal analysis we need.
J. Beckwith Burr
[...] _______________________________________________ Accountability-Cross-Community mailing list Accountability-Cross-Community@icann.org<mailto:Accountability-Cross-Community@icann.org> https://mm.icann.org/mailman/listinfo/accountability-cross-community _______________________________________________ Accountability-Cross-Community mailing list Accountability-Cross-Community@icann.org<mailto:Accountability-Cross-Community@icann.org> https://mm.icann.org/mailman/listinfo/accountability-cross-community _______________________________________________ Accountability-Cross-Community mailing list Accountability-Cross-Community@icann.org<mailto:Accountability-Cross-Community@icann.org> https://mm.icann.org/mailman/listinfo/accountability-cross-community _______________________________________________ Accountability-Cross-Community mailing list Accountability-Cross-Community@icann.org<mailto:Accountability-Cross-Community@icann.org> https://mm.icann.org/mailman/listinfo/accountability-cross-community
I know this is all well intentioned but I do wonder whether endless conversations like this are responsible for me and many others not being able to follow what is happening. Of COURSE there has to be independent legal advice on this. Can we all stop wasting time writing long treatises agreeing with one another and get to the nub of this issue: who will pay for the advice; who is the lawyer or firm to approach; and how do we boil down the excessively long query document to something manageable? Kieren - [sent through phone] On Thu, Jan 22, 2015 at 9:00 PM, Drazek, Keith <kdrazek@verisign.com> wrote:
+1 Robin On Jan 22, 2015, at 8:41 PM, "Robin Gross" <robin@ipjustice.org<mailto:robin@ipjustice.org>> wrote: As a California attorney who has set up a number of California nonprofit corporations over the last decades and who understands the fiduciary relationship owed by an attorney to the corporation she represents and by a board member to the corporation it oversees, I can say we must have external legal advice to avoid both actual conflict of interest, but also to preclude the dismissal of the advice because of claims of conflict of interest. This matter is so legally complex that we need very specialized legal expertise - not something a general council's office is best suited for as they work on a broad range of issues for one specific client. That is why ICANN legal dept often utilizes the services of outside council to provide specific highly specialized legal expertise to the legal dept. on particular issues. So I agree with Becky, Eberhard, Phil, Paul, David, and Avri for all of these reasons. Thanks, Robin On Jan 22, 2015, at 9:46 AM, Avri Doria wrote: Hi, Additionally, borrowing from a another professional field: whenever contemplating surgery, get a second opinion. avri On 22-Jan-15 12:00, Greg Shatan wrote: I agree with Becky, Eberhard, Phil, Paul and David, for all their reasons and more. If ICANN legal had all the expertise necessary, it would be a bad idea, due to lack of independence, ethical obligations to their client, etc. And even if they are reasonably well-informed on California non-profit law, that is necessary but not sufficient for the task at hand. Someone with considerable expertise and experience in corporate governance (especially non-profit) and corporate structuring in a variety of contexts (a "big brain," so to speak) is also necessary. (Notably, when ICANN has needed significant advice in this area in the past, it is my impression that they have turned to the international mega firm of Jones Day (the biggest thing to come out of Cleveland, Ohio since Greg Shatan Gregory S. Shatan Partner | Abelman Frayne & Schwab 666 Third Avenue | New York, NY 10017-5621 Direct 212-885-9253 | Main 212-949-9022 Fax 212-949-9190 | Cell 917-816-6428 gsshatan@lawabel.com<mailto:gsshatan@lawabel.com> ICANN-related: gregshatanipc@gmail.com<mailto:gregshatanipc@gmail.com> www.lawabel.com<http://www.lawabel.com/> On Thu, Jan 22, 2015 at 9:59 AM, Dr Eberhard Lisse <el@lisse.na<mailto:el@lisse.na>> wrote: Eric, I was not looking at it from that perspective, but Becky make sense, ie if we get an opinion that is contrary to what ICANN has previously asserted in court it would put ICANN in a difficult position. Almost as much as their Counsel estopping ICANN on anything not yet litigated. So, we need "unconflicted" Counsel. el On 2015-01-22 16:49, Burr, Becky wrote:
Eric, I have great respect for the ICANN legal staff, but I¹m not aware that anyone on staff possesses legal expertise on international law and/or California not-for-profit law. More that that, we know that ICANN has asserted various limitations on some of the accountability mechanisms based on the ³fiduciary duty² of Board members to the corporation. Whether the ideas in question are good or bad, there is some skepticism - and a conclusion by the Berkman Center during the first ATRT review that additional legal research was needed, about the legal positions asserted by ICANN¹s legal staff and its outside counsel. Given the above, and ethical obligation of counsel to defend the views of its client vigorously, I disagree with your view that ICANN¹s counsel is well situated to provide the legal analysis we need.
J. Beckwith Burr [...]
Accountability-Cross-Community mailing list Accountability-Cross-Community@icann.org<mailto:Accountability-Cross-Community@icann.org> https://mm.icann.org/mailman/listinfo/accountability-cross-community _______________________________________________ Accountability-Cross-Community mailing list Accountability-Cross-Community@icann.org<mailto:Accountability-Cross-Community@icann.org> https://mm.icann.org/mailman/listinfo/accountability-cross-community _______________________________________________ Accountability-Cross-Community mailing list Accountability-Cross-Community@icann.org<mailto:Accountability-Cross-Community@icann.org> https://mm.icann.org/mailman/listinfo/accountability-cross-community _______________________________________________ Accountability-Cross-Community mailing list Accountability-Cross-Community@icann.org<mailto:Accountability-Cross-Community@icann.org> https://mm.icann.org/mailman/listinfo/accountability-cross-community
sent from Google nexus 4 kindly excuse brevity and typos. On 23 Jan 2015 06:28, "Kieren McCarthy" <kierenmccarthy@gmail.com> wrote:
Can we all stop wasting time writing long treatises agreeing with one
another and get to the nub of this issue: who will pay for the advice; who is the lawyer or firm to approach; and how do we boil down the excessively long query document to something manageable?
+1 to the 3 questions above which I will say has asked and answered/acted upon within CWG. Inview of this, I will add a 4th question; can the ccwg have a look at CWG questions to see if theirs is already covered and if not, whether it can be included. We don't need to reinvent the wheel of this legal process delaying the process unnecessarily. However if ccwg still prefers to do it's thing independently then please let's answer the 3 questions raise by Kieren. Regards
Kieren
- [sent through phone]
On Thu, Jan 22, 2015 at 9:00 PM, Drazek, Keith <kdrazek@verisign.com> wrote:
+1 Robin
On Jan 22, 2015, at 8:41 PM, "Robin Gross" <robin@ipjustice.org> wrote:
As a California attorney who has set up a number of California
nonprofit corporations over the last decades and who understands the fiduciary relationship owed by an attorney to the corporation she represents and by a board member to the corporation it oversees, I can say we must have external legal advice to avoid both actual conflict of interest, but also to preclude the dismissal of the advice because of claims of conflict of interest. This matter is so legally complex that we need very specialized legal expertise - not something a general council's office is best suited for as they work on a broad range of issues for one specific client. That is why ICANN legal dept often utilizes the services of outside council to provide specific highly specialized legal expertise to the legal dept. on particular issues. So I agree with Becky, Eberhard, Phil, Paul, David, and Avri for all of these reasons.
Thanks, Robin
On Jan 22, 2015, at 9:46 AM, Avri Doria wrote:
Hi,
Additionally, borrowing from a another professional field: whenever
contemplating surgery, get a second opinion.
avri
On 22-Jan-15 12:00, Greg Shatan wrote:
I agree with Becky, Eberhard, Phil, Paul and David, for all their
reasons and more. If ICANN legal had all the expertise necessary, it would be a bad idea, due to lack of independence, ethical obligations to their client, etc. And even if they are reasonably well-informed on California non-profit law, that is necessary but not sufficient for the task at hand. Someone with considerable expertise and experience in corporate governance (especially non-profit) and corporate structuring in a variety of contexts (a "big brain," so to speak) is also necessary.
(Notably, when ICANN has needed significant advice in this area in
the past, it is my impression that they have turned to the international mega firm of Jones Day (the biggest thing to come out of Cleveland, Ohio since
Greg Shatan
Gregory S. Shatan
Partner | Abelman Frayne & Schwab
666 Third Avenue | New York, NY 10017-5621
Direct 212-885-9253 | Main 212-949-9022
Fax 212-949-9190 | Cell 917-816-6428
gsshatan@lawabel.com
ICANN-related: gregshatanipc@gmail.com
www.lawabel.com
On Thu, Jan 22, 2015 at 9:59 AM, Dr Eberhard Lisse <el@lisse.na>
wrote:
Eric,
I was not looking at it from that perspective, but Becky make sense, ie if we get an opinion that is contrary to what ICANN has previously asserted in court it would put ICANN in a difficult position.
Almost as much as their Counsel estopping ICANN on anything not yet litigated.
So, we need "unconflicted" Counsel.
el
On 2015-01-22 16:49, Burr, Becky wrote: > Eric, I have great respect for the ICANN legal staff, but I¹m not > aware that anyone on staff possesses legal expertise on > international law and/or California not-for-profit law. More that > that, we know that ICANN has asserted various limitations on some > of the accountability mechanisms based on the ³fiduciary duty² > of Board members to the corporation. Whether the ideas in > question are good or bad, there is some skepticism - and a > conclusion by the Berkman Center during the first ATRT review that > additional legal research was needed, about the legal positions > asserted by ICANN¹s legal staff and its outside counsel. Given > the above, and ethical obligation of counsel to defend the views > of its client vigorously, I disagree with your view that ICANN¹s > counsel is well situated to provide the legal analysis we need. > > > > > J. Beckwith Burr
[...] _______________________________________________ Accountability-Cross-Community mailing list Accountability-Cross-Community@icann.org https://mm.icann.org/mailman/listinfo/accountability-cross-community
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Dear Seun, One of the outcomes of our Frankfurt meeting was the creation of the legal advice sub-group which will do exactly what you are suggesting with regards to the document built by the CWG. Our intention is not to reinvent the wheel and see what we can take from that document and what might be missing from this CCWG's perspective in order for us to scope our questions in relation with the requirements identified as another outcome of our F2F meeting. Kind regards, León Enviado desde mi iPhone
El 22/01/2015, a las 23:52, Seun Ojedeji <seun.ojedeji@gmail.com> escribió:
sent from Google nexus 4 kindly excuse brevity and typos. On 23 Jan 2015 06:28, "Kieren McCarthy" <kierenmccarthy@gmail.com> wrote:
Can we all stop wasting time writing long treatises agreeing with one another and get to the nub of this issue: who will pay for the advice; who is the lawyer or firm to approach; and how do we boil down the excessively long query document to something manageable?
+1 to the 3 questions above which I will say has asked and answered/acted upon within CWG. Inview of this, I will add a 4th question; can the ccwg have a look at CWG questions to see if theirs is already covered and if not, whether it can be included.
We don't need to reinvent the wheel of this legal process delaying the process unnecessarily. However if ccwg still prefers to do it's thing independently then please let's answer the 3 questions raise by Kieren.
Regards
Kieren
- [sent through phone]
On Thu, Jan 22, 2015 at 9:00 PM, Drazek, Keith <kdrazek@verisign.com> wrote:
+1 Robin
On Jan 22, 2015, at 8:41 PM, "Robin Gross" <robin@ipjustice.org> wrote:
As a California attorney who has set up a number of California nonprofit corporations over the last decades and who understands the fiduciary relationship owed by an attorney to the corporation she represents and by a board member to the corporation it oversees, I can say we must have external legal advice to avoid both actual conflict of interest, but also to preclude the dismissal of the advice because of claims of conflict of interest. This matter is so legally complex that we need very specialized legal expertise - not something a general council's office is best suited for as they work on a broad range of issues for one specific client. That is why ICANN legal dept often utilizes the services of outside council to provide specific highly specialized legal expertise to the legal dept. on particular issues. So I agree with Becky, Eberhard, Phil, Paul, David, and Avri for all of these reasons.
Thanks, Robin
On Jan 22, 2015, at 9:46 AM, Avri Doria wrote:
Hi,
Additionally, borrowing from a another professional field: whenever contemplating surgery, get a second opinion.
avri
On 22-Jan-15 12:00, Greg Shatan wrote:
I agree with Becky, Eberhard, Phil, Paul and David, for all their reasons and more. If ICANN legal had all the expertise necessary, it would be a bad idea, due to lack of independence, ethical obligations to their client, etc. And even if they are reasonably well-informed on California non-profit law, that is necessary but not sufficient for the task at hand. Someone with considerable expertise and experience in corporate governance (especially non-profit) and corporate structuring in a variety of contexts (a "big brain," so to speak) is also necessary.
(Notably, when ICANN has needed significant advice in this area in the past, it is my impression that they have turned to the international mega firm of Jones Day (the biggest thing to come out of Cleveland, Ohio since
Greg Shatan
Gregory S. Shatan
Partner | Abelman Frayne & Schwab
666 Third Avenue | New York, NY 10017-5621
Direct 212-885-9253 | Main 212-949-9022
Fax 212-949-9190 | Cell 917-816-6428
gsshatan@lawabel.com
ICANN-related: gregshatanipc@gmail.com
www.lawabel.com
On Thu, Jan 22, 2015 at 9:59 AM, Dr Eberhard Lisse <el@lisse.na> wrote: > > Eric, > > I was not looking at it from that perspective, but Becky make sense, > ie if we get an opinion that is contrary to what ICANN has > previously asserted in court it would put ICANN in a difficult > position. > > Almost as much as their Counsel estopping ICANN on anything not yet > litigated. > > > So, we need "unconflicted" Counsel. > > el > > On 2015-01-22 16:49, Burr, Becky wrote: > > Eric, I have great respect for the ICANN legal staff, but I¹m not > > aware that anyone on staff possesses legal expertise on > > international law and/or California not-for-profit law. More that > > that, we know that ICANN has asserted various limitations on some > > of the accountability mechanisms based on the ³fiduciary duty² > > of Board members to the corporation. Whether the ideas in > > question are good or bad, there is some skepticism - and a > > conclusion by the Berkman Center during the first ATRT review that > > additional legal research was needed, about the legal positions > > asserted by ICANN¹s legal staff and its outside counsel. Given > > the above, and ethical obligation of counsel to defend the views > > of its client vigorously, I disagree with your view that ICANN¹s > > counsel is well situated to provide the legal analysis we need. > > > > > > > > > > J. Beckwith Burr > > [...] > _______________________________________________ > 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
_______________________________________________ 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
_______________________________________________ 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
Thanks for the feedback Leon, just to ask, where is the sub-committee discussion taking place... is there a public archive? Regards sent from Google nexus 4 kindly excuse brevity and typos. On 23 Jan 2015 07:12, "León Felipe Sánchez Ambía" <leonfelipe@sanchez.mx> wrote:
Dear Seun,
One of the outcomes of our Frankfurt meeting was the creation of the legal advice sub-group which will do exactly what you are suggesting with regards to the document built by the CWG. Our intention is not to reinvent the wheel and see what we can take from that document and what might be missing from this CCWG's perspective in order for us to scope our questions in relation with the requirements identified as another outcome of our F2F meeting.
Kind regards,
León
Enviado desde mi iPhone
El 22/01/2015, a las 23:52, Seun Ojedeji <seun.ojedeji@gmail.com> escribió:
sent from Google nexus 4 kindly excuse brevity and typos. On 23 Jan 2015 06:28, "Kieren McCarthy" <kierenmccarthy@gmail.com> wrote:
Can we all stop wasting time writing long treatises agreeing with one
another and get to the nub of this issue: who will pay for the advice; who is the lawyer or firm to approach; and how do we boil down the excessively long query document to something manageable?
+1 to the 3 questions above which I will say has asked and answered/acted upon within CWG. Inview of this, I will add a 4th question; can the ccwg have a look at CWG questions to see if theirs is already covered and if not, whether it can be included.
We don't need to reinvent the wheel of this legal process delaying the process unnecessarily. However if ccwg still prefers to do it's thing independently then please let's answer the 3 questions raise by Kieren.
Regards
Kieren
- [sent through phone]
On Thu, Jan 22, 2015 at 9:00 PM, Drazek, Keith <kdrazek@verisign.com> wrote:
+1 Robin
On Jan 22, 2015, at 8:41 PM, "Robin Gross" <robin@ipjustice.org> wrote:
As a California attorney who has set up a number of California
nonprofit corporations over the last decades and who understands the fiduciary relationship owed by an attorney to the corporation she represents and by a board member to the corporation it oversees, I can say we must have external legal advice to avoid both actual conflict of interest, but also to preclude the dismissal of the advice because of claims of conflict of interest. This matter is so legally complex that we need very specialized legal expertise - not something a general council's office is best suited for as they work on a broad range of issues for one specific client. That is why ICANN legal dept often utilizes the services of outside council to provide specific highly specialized legal expertise to the legal dept. on particular issues. So I agree with Becky, Eberhard, Phil, Paul, David, and Avri for all of these reasons.
Thanks, Robin
On Jan 22, 2015, at 9:46 AM, Avri Doria wrote:
Hi,
Additionally, borrowing from a another professional field: whenever
contemplating surgery, get a second opinion.
avri
On 22-Jan-15 12:00, Greg Shatan wrote:
I agree with Becky, Eberhard, Phil, Paul and David, for all their
reasons and more. If ICANN legal had all the expertise necessary, it would be a bad idea, due to lack of independence, ethical obligations to their client, etc. And even if they are reasonably well-informed on California non-profit law, that is necessary but not sufficient for the task at hand. Someone with considerable expertise and experience in corporate governance (especially non-profit) and corporate structuring in a variety of contexts (a "big brain," so to speak) is also necessary.
(Notably, when ICANN has needed significant advice in this area in
the past, it is my impression that they have turned to the international mega firm of Jones Day (the biggest thing to come out of Cleveland, Ohio since
Greg Shatan
Gregory S. Shatan
Partner | Abelman Frayne & Schwab
666 Third Avenue | New York, NY 10017-5621
Direct 212-885-9253 | Main 212-949-9022
Fax 212-949-9190 | Cell 917-816-6428
gsshatan@lawabel.com
ICANN-related: gregshatanipc@gmail.com
www.lawabel.com
On Thu, Jan 22, 2015 at 9:59 AM, Dr Eberhard Lisse <el@lisse.na>
wrote:
> > Eric, > > I was not looking at it from that perspective, but Becky make sense, > ie if we get an opinion that is contrary to what ICANN has > previously asserted in court it would put ICANN in a difficult > position. > > Almost as much as their Counsel estopping ICANN on anything not yet > litigated. > > > So, we need "unconflicted" Counsel. > > el > > On 2015-01-22 16:49, Burr, Becky wrote: > > Eric, I have great respect for the ICANN legal staff, but I¹m not > > aware that anyone on staff possesses legal expertise on > > international law and/or California not-for-profit law. More that > > that, we know that ICANN has asserted various limitations on some > > of the accountability mechanisms based on the ³fiduciary duty² > > of Board members to the corporation. Whether the ideas in > > question are good or bad, there is some skepticism - and a > > conclusion by the Berkman Center during the first ATRT review that > > additional legal research was needed, about the legal positions > > asserted by ICANN¹s legal staff and its outside counsel. Given > > the above, and ethical obligation of counsel to defend the views > > of its client vigorously, I disagree with your view that ICANN¹s > > counsel is well situated to provide the legal analysis we need. > > > > > > > > > > J. Beckwith Burr > > [...] > _______________________________________________ > 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
_______________________________________________ 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
_______________________________________________ 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
Unreadable. el On 2015-01-23 07:52, Seun Ojedeji wrote:
sent from Google nexus 4 kindly excuse brevity and typos. On 23 Jan 2015 06:28, "Kieren McCarthy" <kierenmccarthy@gmail.com <mailto:kierenmccarthy@gmail.com>> wrote:
Can we all stop wasting time writing long treatises agreeing with one
another and get to the nub of this issue: who will pay for the advice; who is the lawyer or firm to approach; and how do we boil down the excessively long query document to something manageable?
+1 to the 3 questions above which I will say has asked and answered/acted upon within CWG. Inview of this, I will add a 4th question; can the ccwg have a look at CWG questions to see if theirs is already covered and if not, whether it can be included.
We don't need to reinvent the wheel of this legal process delaying the process unnecessarily. However if ccwg still prefers to do it's thing independently then please let's answer the 3 questions raise by Kieren.
Regards
Kieren
- [sent through phone]
On Thu, Jan 22, 2015 at 9:00 PM, Drazek, Keith <kdrazek@verisign.com <mailto:kdrazek@verisign.com>> wrote:
+1 Robin
On Jan 22, 2015, at 8:41 PM, "Robin Gross" <robin@ipjustice.org
<mailto:robin@ipjustice.org>> wrote:
As a California attorney who has set up a number of California
nonprofit corporations over the last decades and who understands the fiduciary relationship owed by an attorney to the corporation she represents and by a board member to the corporation it oversees, I can say we must have external legal advice to avoid both actual conflict of interest, but also to preclude the dismissal of the advice because of claims of conflict of interest. This matter is so legally complex that we need very specialized legal expertise - not something a general council's office is best suited for as they work on a broad range of issues for one specific client. That is why ICANN legal dept often utilizes the services of outside council to provide specific highly specialized legal expertise to the legal dept. on particular issues. So I agree with Becky, Eberhard, Phil, Paul, David, and Avri for all of these reasons.
Thanks, Robin
On Jan 22, 2015, at 9:46 AM, Avri Doria wrote:
Hi,
Additionally, borrowing from a another professional field: whenever
contemplating surgery, get a second opinion.
avri
On 22-Jan-15 12:00, Greg Shatan wrote:
I agree with Becky, Eberhard, Phil, Paul and David, for all their
reasons and more. If ICANN legal had all the expertise necessary, it would be a bad idea, due to lack of independence, ethical obligations to their client, etc. And even if they are reasonably well-informed on California non-profit law, that is necessary but not sufficient for the task at hand. Someone with considerable expertise and experience in corporate governance (especially non-profit) and corporate structuring in a variety of contexts (a "big brain," so to speak) is also necessary.
(Notably, when ICANN has needed significant advice in this area in
the past, it is my impression that they have turned to the international mega firm of Jones Day (the biggest thing to come out of Cleveland, Ohio since
Greg Shatan
Gregory S. Shatan
Partner | Abelman Frayne & Schwab
666 Third Avenue | New York, NY 10017-5621
Direct 212-885-9253 | Main 212-949-9022
Fax 212-949-9190 | Cell 917-816-6428
gsshatan@lawabel.com <mailto:gsshatan@lawabel.com>
ICANN-related: gregshatanipc@gmail.com
<mailto:gregshatanipc@gmail.com>
www.lawabel.com <http://www.lawabel.com>
On Thu, Jan 22, 2015 at 9:59 AM, Dr Eberhard Lisse <el@lisse.na
<mailto:el@lisse.na>> wrote:
> > Eric, > > I was not looking at it from that perspective, but Becky make sense, > ie if we get an opinion that is contrary to what ICANN has > previously asserted in court it would put ICANN in a difficult > position. > > Almost as much as their Counsel estopping ICANN on anything not yet > litigated. > > > So, we need "unconflicted" Counsel. > > el > > On 2015-01-22 16:49, Burr, Becky wrote: > > Eric, I have great respect for the ICANN legal staff, but I¹m not > > aware that anyone on staff possesses legal expertise on > > international law and/or California not-for-profit law. More that > > that, we know that ICANN has asserted various limitations on some > > of the accountability mechanisms based on the ³fiduciary duty² > > of Board members to the corporation. Whether the ideas in > > question are good or bad, there is some skepticism - and a > > conclusion by the Berkman Center during the first ATRT review that > > additional legal research was needed, about the legal positions > > asserted by ICANN¹s legal staff and its outside counsel. Given > > the above, and ethical obligation of counsel to defend the views > > of its client vigorously, I disagree with your view that ICANN¹s > > counsel is well situated to provide the legal analysis we need. > > > > > > > > > > J. Beckwith Burr > > [...] > _______________________________________________ > Accountability-Cross-Community mailing list > Accountability-Cross-Community@icann.org <mailto:Accountability-Cross-Community@icann.org> > https://mm.icann.org/mailman/listinfo/accountability-cross-community
_______________________________________________ Accountability-Cross-Community mailing list Accountability-Cross-Community@icann.org <mailto:Accountability-Cross-Community@icann.org> https://mm.icann.org/mailman/listinfo/accountability-cross-community
_______________________________________________ Accountability-Cross-Community mailing list Accountability-Cross-Community@icann.org <mailto:Accountability-Cross-Community@icann.org> https://mm.icann.org/mailman/listinfo/accountability-cross-community
_______________________________________________ Accountability-Cross-Community mailing list Accountability-Cross-Community@icann.org <mailto:Accountability-Cross-Community@icann.org> https://mm.icann.org/mailman/listinfo/accountability-cross-community
_______________________________________________ Accountability-Cross-Community mailing list Accountability-Cross-Community@icann.org <mailto: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
-- Dr. Eberhard W. Lisse \ / Obstetrician & Gynaecologist (Saar) el@lisse.NA / * | Telephone: +264 81 124 6733 (cell) PO Box 8421 \ / Bachbrecht, Namibia ;____/
sent from Google nexus 4 kindly excuse brevity and typos. On 23 Jan 2015 07:58, "Dr Eberhard Lisse" <el@lisse.na> wrote:
Unreadable.
Perhaps not seeing the file initially shared by Chris on all your client devices is related. All the best with fixing your clients. Cheers!
el
On 2015-01-23 07:52, Seun Ojedeji wrote:
sent from Google nexus 4 kindly excuse brevity and typos. On 23 Jan 2015 06:28, "Kieren McCarthy" <kierenmccarthy@gmail.com <mailto:kierenmccarthy@gmail.com>> wrote:
Can we all stop wasting time writing long treatises agreeing with one
another and get to the nub of this issue: who will pay for the advice; who is the lawyer or firm to approach; and how do we boil down the excessively long query document to something manageable?
+1 to the 3 questions above which I will say has asked and answered/acted upon within CWG. Inview of this, I will add a 4th question; can the ccwg have a look at CWG questions to see if theirs is already covered and if not, whether it can be included.
We don't need to reinvent the wheel of this legal process delaying the process unnecessarily. However if ccwg still prefers to do it's thing independently then please let's answer the 3 questions raise by Kieren.
Regards
Kieren
- [sent through phone]
On Thu, Jan 22, 2015 at 9:00 PM, Drazek, Keith <kdrazek@verisign.com <mailto:kdrazek@verisign.com>> wrote:
+1 Robin
On Jan 22, 2015, at 8:41 PM, "Robin Gross" <robin@ipjustice.org
<mailto:robin@ipjustice.org>> wrote:
As a California attorney who has set up a number of California
nonprofit corporations over the last decades and who understands the fiduciary relationship owed by an attorney to the corporation she represents and by a board member to the corporation it oversees, I can say we must have external legal advice to avoid both actual conflict of interest, but also to preclude the dismissal of the advice because of claims of conflict of interest. This matter is so legally complex that we need very specialized legal expertise - not something a general council's office is best suited for as they work on a broad range of issues for one specific client. That is why ICANN legal dept often utilizes the services of outside council to provide specific highly specialized legal expertise to the legal dept. on particular issues. So I agree with Becky, Eberhard, Phil, Paul, David, and Avri for all of these reasons.
Thanks, Robin
On Jan 22, 2015, at 9:46 AM, Avri Doria wrote:
Hi,
Additionally, borrowing from a another professional field: whenever
contemplating surgery, get a second opinion.
avri
On 22-Jan-15 12:00, Greg Shatan wrote: > > I agree with Becky, Eberhard, Phil, Paul and David, for all their
reasons and more. If ICANN legal had all the expertise necessary, it would be a bad idea, due to lack of independence, ethical obligations to their client, etc. And even if they are reasonably well-informed on California non-profit law, that is necessary but not sufficient for the task at hand. Someone with considerable expertise and experience in corporate governance (especially non-profit) and corporate structuring in a variety of contexts (a "big brain," so to speak) is also necessary.
> > (Notably, when ICANN has needed significant advice in this area in the past, it is my impression that they have turned to the international mega firm of Jones Day (the biggest thing to come out of Cleveland, Ohio since > > > Greg Shatan > > Gregory S. Shatan > > Partner | Abelman Frayne & Schwab > > > 666 Third Avenue | New York, NY 10017-5621 > > Direct 212-885-9253 | Main 212-949-9022 > > Fax 212-949-9190 | Cell 917-816-6428 > > gsshatan@lawabel.com <mailto:gsshatan@lawabel.com> > > ICANN-related: gregshatanipc@gmail.com <mailto:gregshatanipc@gmail.com> > > www.lawabel.com <http://www.lawabel.com> > > > On Thu, Jan 22, 2015 at 9:59 AM, Dr Eberhard Lisse <el@lisse.na <mailto:el@lisse.na>> wrote: >> >> Eric, >> >> I was not looking at it from that perspective, but Becky make sense, >> ie if we get an opinion that is contrary to what ICANN has >> previously asserted in court it would put ICANN in a difficult >> position. >> >> Almost as much as their Counsel estopping ICANN on anything not yet >> litigated. >> >> >> So, we need "unconflicted" Counsel. >> >> el >> >> On 2015-01-22 16:49, Burr, Becky wrote: >> > Eric, I have great respect for the ICANN legal staff, but I¹m not >> > aware that anyone on staff possesses legal expertise on >> > international law and/or California not-for-profit law. More that >> > that, we know that ICANN has asserted various limitations on some >> > of the accountability mechanisms based on the ³fiduciary duty² >> > of Board members to the corporation. Whether the ideas in >> > question are good or bad, there is some skepticism - and a >> > conclusion by the Berkman Center during the first ATRT review that >> > additional legal research was needed, about the legal positions >> > asserted by ICANN¹s legal staff and its outside counsel. Given >> > the above, and ethical obligation of counsel to defend the views >> > of its client vigorously, I disagree with your view that ICANN¹s >> > counsel is well situated to provide the legal analysis we need. >> > >> > >> > >> > >> > J. Beckwith Burr >> >> [...] >> _______________________________________________ >> Accountability-Cross-Community mailing list >> Accountability-Cross-Community@icann.org <mailto:Accountability-Cross-Community@icann.org> >> https://mm.icann.org/mailman/listinfo/accountability-cross-community > > > > > _______________________________________________ > Accountability-Cross-Community mailing list > Accountability-Cross-Community@icann.org <mailto:Accountability-Cross-Community@icann.org> > https://mm.icann.org/mailman/listinfo/accountability-cross-community
_______________________________________________ Accountability-Cross-Community mailing list Accountability-Cross-Community@icann.org <mailto:Accountability-Cross-Community@icann.org> https://mm.icann.org/mailman/listinfo/accountability-cross-community
_______________________________________________ Accountability-Cross-Community mailing list Accountability-Cross-Community@icann.org <mailto:Accountability-Cross-Community@icann.org> https://mm.icann.org/mailman/listinfo/accountability-cross-community
_______________________________________________ Accountability-Cross-Community mailing list Accountability-Cross-Community@icann.org <mailto: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
-- Dr. Eberhard W. Lisse \ / Obstetrician & Gynaecologist (Saar) el@lisse.NA / * | Telephone: +264 81 124 6733 (cell) PO Box 8421 \ / Bachbrecht, Namibia ;____/ _______________________________________________ Accountability-Cross-Community mailing list Accountability-Cross-Community@icann.org https://mm.icann.org/mailman/listinfo/accountability-cross-community
Dear co-chairs, could you kindly instruct this poster to restrict his ad-hominem trolling to the AFRICANN list? el On 2015-01-23 09:07, Seun Ojedeji wrote:
sent from Google nexus 4 kindly excuse brevity and typos. On 23 Jan 2015 07:58, "Dr Eberhard Lisse" <el@lisse.na> wrote:
Unreadable.
Perhaps not seeing the file initially shared by Chris on all your client devices is related.
All the best with fixing your clients.
Cheers! [...]
Kieren, I fully agree with you. What also irritates me to no end, is that native English speakers, even lawyers, take no care whatsoever on the drafting of their emails. One huge line which appears as one large paragraph in the email making it extremely difficult to read. Never mind that many of them are content free. And don't get me started on the full quotes where comments are interspersed in a way that they can not be found (again, because of the thoughtless use of proprietary software). Or even worse, full posts prefixed with "+1" which means "me three" and the totally worst cutting everything off, and writing "+1 some name". It is disrespectful, but also shows a significant lack of actual competence about the matters at hand. And I think that our phone calls are one hour and our meeting one day too long. greetings, el On 2015-01-23 07:28, Kieren McCarthy wrote:
I know this is all well intentioned but I do wonder whether endless conversations like this are responsible for me and many others not being able to follow what is happening.
Of COURSE there has to be independent legal advice on this.
Can we all stop wasting time writing long treatises agreeing with one another and get to the nub of this issue: who will pay for the advice; who is the lawyer or firm to approach; and how do we boil down the excessively long query document to something manageable?
Kieren [...]
Becky, If one of the "free, soon, adequate" requirements can be waived, then even I don't have my view, but the legal staff do meet those criteria, and their client is the corporation, which is capable of reorganization, a subject of interest for the purposes of exploring the "member" and "oversight" sets of issues. I'm glad you mention fiduciary duty as there are no shareholders, rather stewards of the public trust exercising reasonable care, inquisitive ... the strictest standard of duty of care in American law. As many members of the community having a material interest in unique endpoint identifiers are employed by for-profit entities with shareholders, the same meaning may not be conveyed when we use the same phrase. Would you do me the kindness (at some point in the proximal future, it isn't urgent) of providing a URL to the conclusion, and perhaps the supporting analysis, of the Berkman Center during the first ATRT review? I'm interested in which legal positions by the Corporation's legal staff they found in need of additional research. Again, were we constituted externally by some other corporate entity, then retaining our legal counsel rather than relying upon the legal counsel of the subject of our inquiry, concerning its reorganization, would be necessary for the reason you mention -- the ethical duty of counsel towards its clients -- but we -- the CCWG-whatever -- are not, and staff -- all of staff, from IT to Legal, as resources allocated by the executive, are available to us. Absent a refusal to allocate or a demonstration of incompetence, why shouldn't we expect an adequate work product from staff counsel? Thank you for your kind note, and on the International Law issue, which to me seems excessively speculative, I share your remark. Eric Brunner-Williams Eugene, Oregon On 1/22/15 6:49 AM, Burr, Becky wrote:
Eric, I have great respect for the ICANN legal staff, but I¹m not aware that anyone on staff possesses legal expertise on international law and/or California not-for-profit law. More that that, we know that ICANN has asserted various limitations on some of the accountability mechanisms based on the ³fiduciary duty² of Board members to the corporation. Whether the ideas in question are good or bad, there is some skepticism - and a conclusion by the Berkman Center during the first ATRT review that additional legal research was needed, about the legal positions asserted by ICANN¹s legal staff and its outside counsel. Given the above, and ethical obligation of counsel to defend the views of its client vigorously, I disagree with your view that ICANN¹s counsel is well situated to provide the legal analysis we need.
J. Beckwith Burr Neustar, Inc. / Deputy General Counsel and Chief Privacy Officer 1775 Pennsylvania Avenue NW, Washington, DC 20006 Office: + 1.202.533.2932 Mobile: +1.202.352.6367 / becky.burr@neustar.biz / www.neustar.biz
On 1/19/15, 7:28 PM, "Eric Brunner-Williams" <ebw@abenaki.wabanaki.net> wrote:
Colleagues,
During the last hour of today's call there was discussion of the subject of experts, and the lack of an expert in international law identified as a deficit. In the chat a concern was expressed, not for the first time, that an expert in California non-profit law was also needed.
I share the view that expert advice on issues relating to converting the Corporation from "no members" to "members", and similar questions, is a pressing need, if this, or any similar question, is to be undertaken by this, or a similar Working Group, e.g., the CWG. That I don't think the membership form feasible is another matter, and my experience in the original Membership Implementation Task Force is just that -- we didn't succeed and we didn't try everything and what we got (eventually) was "At Large" as an Advisory Committee.
What I don't share is the view that the advice _must_ come from a source other than the Corporation's legal staff.
The Corporation's legal staff have the subject matter expertise -- California's incorporation language and case law, and are bound by the ethics and professional responsibilities requirements of the California Bar Association.
If the "member" question is worth considering, and if time is pressing, as we lack a basis to know that the Corporation's legal staff does not have subject matter expertise, nor does Corporation legal staff have an identified conflict of interest with ... an activity or activities it has called into existence -- the CCWG and/or CWG, no an ethics violation, why are we deferring the "member" and similar questions at all?
It is one thing for scenarios submitted to the WS4 stream to have (many) hypotheticals of incompetence, conflict or malfeasance, it is quite another to conduct ourselves as if the hypothetical is a fact pattern in the present.
The Corporation's legal staff are already paid, a defect that apparently makes finding sources of International Law expertise challenging, and from JJ to Dan to Sam to ... known to many of us, and known for many years. Absent very clear statements to the contrary, we should be able to proceed and determin whether the "member" suggestion has sufficient value to be worth implementation consideration.
Eric Brunner-Williams Eugene, Oregon _______________________________________________ Accountability-Cross-Community mailing list Accountability-Cross-Community@icann.org https://urldefense.proofpoint.com/v2/url?u=https-3A__mm.icann.org_mailman_ listinfo_accountability-2Dcross-2Dcommunity&d=AwICAg&c=MOptNlVtIETeDALC_lU Lrw&r=62cJFOifzm6X_GRlaq8Mo8TjDmrxdYahOP8WDDkMr4k&m=dzielj0xe9EF0XMD0pTpND bhg29LAC49U9BMgHK2omQ&s=XKgrbBjSe02TMtfCVIzFXBMByA9Ol1pcuNS_i_grYWM&e=
participants (13)
-
Avri Doria -
Burr, Becky -
Dr Eberhard Lisse -
Drazek, Keith -
Eric Brunner-Williams -
Greg Shatan -
Kieren McCarthy -
León Felipe Sánchez Ambía -
McAuley, David -
Paul Rosenzweig -
Phil Corwin -
Robin Gross -
Seun Ojedeji