Re: [CCWG-ACCT] Who is managing the lawyers and what have they beenasked to do?
Chris, That was tried to some extent, at least in the CWG. There are several substantial problems with that approach. First, lawyers are not fungible. The particular legal skills, background and experience required for the issues before both WGs are fairly specific, and in some cases, very specific. The primary core competency needed here is corporate governance. While a number of lawyers in the community have a reasonable working knowledge of the area, at least in their home jurisdictions, I don't believe there are any who would say that this is their primary focus and expertise -- at least none who identified themselves to either WG. The second core competency required, especially in the CCWG, is non-profit law. Again there are a number of lawyers with a decent working knowledge of this fairly broad field, but not as a primary focus. There may be a couple of lawyers in the community who would claim this fairly broad field as a primary focus and expertise -- but none who became involved with either WG. This then becomes further narrowed by jurisdiction. Since ICANN is a California non-profit corporation, US corporate governance and non-profit experience is more relevant than experience from other jurisdictions, and California law corporate governance and non-profit experience is more relevant than that from other US jurisdictions. In my experience, the more a US lawyer focuses on a particular substantive area, the greater their knowledge of and comfort with state law issues in US state jurisdictions other than their own (e.g., someone who spend a majority of their time working in corporate governance will have a greater knowledge of the law, issues, approaches and trends outside their primary state of practice, while someone who spends a relatively small amount of time in the area will tend to feel less comfortable outside their home jurisdiction). (An exception is that many US lawyers have specific knowledge of certain Delaware corporate law issues, because Delaware often serves as the state of incorporation for entities operating elsewhere.) Second, lawyers in the community will seldom be seen as neutral advisors, no matter how hard they try. They will tend to be seen as working from their point of view or stakeholder group or "special interest" or desired outcome, even if they are trying to be even-handed. Over the course of time, this balancing act would tend to become more untenable. Third, the amount of time it would take to provide truly definitive legal advice (research, careful drafting, discussions with relevant "clients", etc.) would be prohibitive, even compared to the substantial amount of time it takes to provide reasonably well-informed and competent legal-based viewpoints in the course of either WG's work. Fourth, in order to formally counsel the community, the lawyer or lawyers in question would have to enter into a formal attorney-client relationship. Under US law, an attorney-client relationship may inadvertently be created by the attorney's actions, so attorneys try to be careful about not providing formal legal advice without a formal engagement (sometimes providing an explicit "caveat" if they feel they might be getting too close to providing legal advice). If the attorney is employed by a corporation, they would likely be unable to take on such a representation due to the terms of their employment, and that is before getting to an exploration of conflict of interest issues. If the attorney is employed by a firm, the firm would have to sign off on the representation, again dealing with potential conflict issues. Fifth, even if the above issues were all somehow resolved, it would be highly unlikely that any such attorney would provide substantial amounts of advice, written memos, counseling, etc. on a pro bono (unpaid) basis, especially given the time-consuming nature of the work. Pro bono advice and representation is generally accorded to individuals and entities that could not otherwise be able to pay for it. That is clearly not the case here, at least with ICANN taking financial responsibility. It would likely be very difficult to justify this to, e.g., a firm's pro bono committee, as a valid pro bono representation. Sixth, if ICANN were not taking the role they are taking, it would be extremely difficult to identify the "client" in this situation. The "community" is a collection of sectors, mostly represented by various ICANN-created structures, which in turn have members of widely varying types (individuals, corporations, sovereigns, non-profits, IGOs, partnerships, etc.). This would also make it extremely difficult to enter into a formal counseling relationship with the "community." Seventh, this is a sensitive, high-profile, transformative set of actions we are involved in, which is subject to an extraordinary amount of scrutiny, not least that of the NTIA and the US Congress. That eliminates any possibility of providing informal, off-the-cuff, reasonably well-informed but not quite expert, "non-advice" advice -- which might happen in a more obscure exercise. There's simply too much at stake. Finally, I would say that a number of attorneys involved in one or both of the WGs are in fact providing a significant amount of legal knowledge and experience to the WGs, helping to frame issues, whether in terms of general leadership (e.g., Thomas, Leon, Becky) or more specifically in a "lawyer-as-client" capacity -- working with outside counsel, tackling the more legalistic issues, providing as much legal background and knowledge as possible without providing the type of formal legal advice that would tend to create an attorney-client relationship, etc. So I do think that many lawyers in the community are giving greatly of themselves in this process, even though they cannot and would not be able to formally be engaged by the community as its "counsel of record." In sum, it might be a nice thought in theory, but it is no way a practical possibility. Greg On Sat, Jul 4, 2015 at 3:08 AM, CW Lists <lists@christopherwilkinson.eu> wrote:
Good morning:
I had decided not to enter this debate. But I am bound to say that the thought had occurred to me at the time, that there were more than enough qualified lawyers in this community that they could perfectly well have counselled … themselves.
CW
On 04 Jul 2015, at 08:41, Greg Shatan <gregshatanipc@gmail.com> wrote:
Wolfgang,
To your first point, the billing rates were clearly stated in the law firms' engagement letters.
To your second point, I'm sure we could all think of other projects and goals where the money could have been "better spent." You've stated yours. But that is not the proper test. This was and continues to be money we need to spend to achieve the goals we have set. Under different circumstances, perhaps it would be a different amount (or maybe none at all). But it was strongly felt at the outset that the group needed to have independent counsel. Clearly that counsel needed to have recognized expertise in the appropriate legal areas. As such, I believe we made excellent choices and have been very well represented.
As to your "better spent" test, I just had to have $4000.00 worth of emergency dental work done. This money definitely could have been "better spent" on a nice vacation, redecorating our living room or on donations to my favored charitable causes. But I had no choice, other than to choose which dentist and endodontist I went to, and I wasn't going to cut corners -- the dental work was a necessity. Similarly, the legal work we are getting is a necessity and whether we would have preferred to spend the money elsewhere is not merely irrelevant, it is an incorrect and inappropriate proposition. Many of us are investing vast quantities of time that could be "better spent" elsewhere as well, but we are willing (grudgingly sometimes) to spend the time it takes to get it right, because we believe it needs to be done. This is the appropriate measure, whether it comes to our time or counsels' time. If we believe in this project, we have to invest in it, and do what it takes to succeed.
Of course, this investment has to be managed wisely and cost-effectively, and by and large, I believe the CCWG has done that reasonably well -- not perfectly, but reasonably well and with "course corrections" along the way intended to improve that management. It's certainly fair to ask, as Robin has done, for a better understanding of that management as we go along. But asserting that the money could have been "better spent" elsewhere sets up a false test that we should not use to evaluate this important aspect of our work. Instead, we need to focus on whether the money was "well spent" on these critical legal services. If you have reason to believe it was not, that could be useful to know. That would at least be the right discussion to have.
Greg
On Sat, Jul 4, 2015 at 1:13 AM, "Kleinwächter, Wolfgang" < wolfgang.kleinwaechter@medienkomm.uni-halle.de> wrote:
HI,
and please if you ask outside lawyers, ask for the price tag in advance. Some of the money spend fo lawyers could have been spend better to suppport and enable Internet user and non-commercial groups in developing countries.
Wolfgang
-----Ursprüngliche Nachricht----- Von: accountability-cross-community-bounces@icann.org im Auftrag von Robin Gross Gesendet: Fr 03.07.2015 14:57 An: accountability-cross-community@icann.org Community Betreff: [CCWG-ACCT] Who is managing the lawyers and what have they beenasked to do?
After the legal sub-team was disbanded, I haven't been able to follow what communications are happening with CCWG and the independent lawyers we retained.
I understand the lawyers are currently "working on the various models" and will present something to us regarding that work soon. However, *what exactly* have the lawyers been asked to do and *who* asked them? If there are written instructions, may the group please see them? Who is now taking on the role of managing the outside attorneys for this group, including providing instructions and certifying legal work?
Sorry, but I'm really trying to understand what is happening, and there doesn't seem to be much information in the public on this (or if there is, I can't find it). Thanks for any information anyone can provide.
Best, Robin
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Thank you Greg! It makes a lot of sense and I guess those are all good reasons as we hired them in the first place. What are the next steps now? What happened in the recent call? Best regards *Carlos Raúl Gutiérrez* +506 8837 7176 Skype carlos.raulg _________ Apartado 1571-1000 *COSTA RICA* On Mon, Jul 6, 2015 at 12:02 AM, Greg Shatan <gregshatanipc@gmail.com> wrote:
Chris,
That was tried to some extent, at least in the CWG.
There are several substantial problems with that approach.
First, lawyers are not fungible. The particular legal skills, background and experience required for the issues before both WGs are fairly specific, and in some cases, very specific. The primary core competency needed here is corporate governance. While a number of lawyers in the community have a reasonable working knowledge of the area, at least in their home jurisdictions, I don't believe there are any who would say that this is their primary focus and expertise -- at least none who identified themselves to either WG. The second core competency required, especially in the CCWG, is non-profit law. Again there are a number of lawyers with a decent working knowledge of this fairly broad field, but not as a primary focus. There may be a couple of lawyers in the community who would claim this fairly broad field as a primary focus and expertise -- but none who became involved with either WG. This then becomes further narrowed by jurisdiction. Since ICANN is a California non-profit corporation, US corporate governance and non-profit experience is more relevant than experience from other jurisdictions, and California law corporate governance and non-profit experience is more relevant than that from other US jurisdictions. In my experience, the more a US lawyer focuses on a particular substantive area, the greater their knowledge of and comfort with state law issues in US state jurisdictions other than their own (e.g., someone who spend a majority of their time working in corporate governance will have a greater knowledge of the law, issues, approaches and trends outside their primary state of practice, while someone who spends a relatively small amount of time in the area will tend to feel less comfortable outside their home jurisdiction). (An exception is that many US lawyers have specific knowledge of certain Delaware corporate law issues, because Delaware often serves as the state of incorporation for entities operating elsewhere.)
Second, lawyers in the community will seldom be seen as neutral advisors, no matter how hard they try. They will tend to be seen as working from their point of view or stakeholder group or "special interest" or desired outcome, even if they are trying to be even-handed. Over the course of time, this balancing act would tend to become more untenable.
Third, the amount of time it would take to provide truly definitive legal advice (research, careful drafting, discussions with relevant "clients", etc.) would be prohibitive, even compared to the substantial amount of time it takes to provide reasonably well-informed and competent legal-based viewpoints in the course of either WG's work.
Fourth, in order to formally counsel the community, the lawyer or lawyers in question would have to enter into a formal attorney-client relationship. Under US law, an attorney-client relationship may inadvertently be created by the attorney's actions, so attorneys try to be careful about not providing formal legal advice without a formal engagement (sometimes providing an explicit "caveat" if they feel they might be getting too close to providing legal advice). If the attorney is employed by a corporation, they would likely be unable to take on such a representation due to the terms of their employment, and that is before getting to an exploration of conflict of interest issues. If the attorney is employed by a firm, the firm would have to sign off on the representation, again dealing with potential conflict issues.
Fifth, even if the above issues were all somehow resolved, it would be highly unlikely that any such attorney would provide substantial amounts of advice, written memos, counseling, etc. on a pro bono (unpaid) basis, especially given the time-consuming nature of the work. Pro bono advice and representation is generally accorded to individuals and entities that could not otherwise be able to pay for it. That is clearly not the case here, at least with ICANN taking financial responsibility. It would likely be very difficult to justify this to, e.g., a firm's pro bono committee, as a valid pro bono representation.
Sixth, if ICANN were not taking the role they are taking, it would be extremely difficult to identify the "client" in this situation. The "community" is a collection of sectors, mostly represented by various ICANN-created structures, which in turn have members of widely varying types (individuals, corporations, sovereigns, non-profits, IGOs, partnerships, etc.). This would also make it extremely difficult to enter into a formal counseling relationship with the "community."
Seventh, this is a sensitive, high-profile, transformative set of actions we are involved in, which is subject to an extraordinary amount of scrutiny, not least that of the NTIA and the US Congress. That eliminates any possibility of providing informal, off-the-cuff, reasonably well-informed but not quite expert, "non-advice" advice -- which might happen in a more obscure exercise. There's simply too much at stake.
Finally, I would say that a number of attorneys involved in one or both of the WGs are in fact providing a significant amount of legal knowledge and experience to the WGs, helping to frame issues, whether in terms of general leadership (e.g., Thomas, Leon, Becky) or more specifically in a "lawyer-as-client" capacity -- working with outside counsel, tackling the more legalistic issues, providing as much legal background and knowledge as possible without providing the type of formal legal advice that would tend to create an attorney-client relationship, etc. So I do think that many lawyers in the community are giving greatly of themselves in this process, even though they cannot and would not be able to formally be engaged by the community as its "counsel of record."
In sum, it might be a nice thought in theory, but it is no way a practical possibility.
Greg
On Sat, Jul 4, 2015 at 3:08 AM, CW Lists <lists@christopherwilkinson.eu> wrote:
Good morning:
I had decided not to enter this debate. But I am bound to say that the thought had occurred to me at the time, that there were more than enough qualified lawyers in this community that they could perfectly well have counselled … themselves.
CW
On 04 Jul 2015, at 08:41, Greg Shatan <gregshatanipc@gmail.com> wrote:
Wolfgang,
To your first point, the billing rates were clearly stated in the law firms' engagement letters.
To your second point, I'm sure we could all think of other projects and goals where the money could have been "better spent." You've stated yours. But that is not the proper test. This was and continues to be money we need to spend to achieve the goals we have set. Under different circumstances, perhaps it would be a different amount (or maybe none at all). But it was strongly felt at the outset that the group needed to have independent counsel. Clearly that counsel needed to have recognized expertise in the appropriate legal areas. As such, I believe we made excellent choices and have been very well represented.
As to your "better spent" test, I just had to have $4000.00 worth of emergency dental work done. This money definitely could have been "better spent" on a nice vacation, redecorating our living room or on donations to my favored charitable causes. But I had no choice, other than to choose which dentist and endodontist I went to, and I wasn't going to cut corners -- the dental work was a necessity. Similarly, the legal work we are getting is a necessity and whether we would have preferred to spend the money elsewhere is not merely irrelevant, it is an incorrect and inappropriate proposition. Many of us are investing vast quantities of time that could be "better spent" elsewhere as well, but we are willing (grudgingly sometimes) to spend the time it takes to get it right, because we believe it needs to be done. This is the appropriate measure, whether it comes to our time or counsels' time. If we believe in this project, we have to invest in it, and do what it takes to succeed.
Of course, this investment has to be managed wisely and cost-effectively, and by and large, I believe the CCWG has done that reasonably well -- not perfectly, but reasonably well and with "course corrections" along the way intended to improve that management. It's certainly fair to ask, as Robin has done, for a better understanding of that management as we go along. But asserting that the money could have been "better spent" elsewhere sets up a false test that we should not use to evaluate this important aspect of our work. Instead, we need to focus on whether the money was "well spent" on these critical legal services. If you have reason to believe it was not, that could be useful to know. That would at least be the right discussion to have.
Greg
On Sat, Jul 4, 2015 at 1:13 AM, "Kleinwächter, Wolfgang" < wolfgang.kleinwaechter@medienkomm.uni-halle.de> wrote:
HI,
and please if you ask outside lawyers, ask for the price tag in advance. Some of the money spend fo lawyers could have been spend better to suppport and enable Internet user and non-commercial groups in developing countries.
Wolfgang
-----Ursprüngliche Nachricht----- Von: accountability-cross-community-bounces@icann.org im Auftrag von Robin Gross Gesendet: Fr 03.07.2015 14:57 An: accountability-cross-community@icann.org Community Betreff: [CCWG-ACCT] Who is managing the lawyers and what have they beenasked to do?
After the legal sub-team was disbanded, I haven't been able to follow what communications are happening with CCWG and the independent lawyers we retained.
I understand the lawyers are currently "working on the various models" and will present something to us regarding that work soon. However, *what exactly* have the lawyers been asked to do and *who* asked them? If there are written instructions, may the group please see them? Who is now taking on the role of managing the outside attorneys for this group, including providing instructions and certifying legal work?
Sorry, but I'm really trying to understand what is happening, and there doesn't seem to be much information in the public on this (or if there is, I can't find it). Thanks for any information anyone can provide.
Best, Robin
_______________________________________________ Accountability-Cross-Community mailing list Accountability-Cross-Community@icann.org https://mm.icann.org/mailman/listinfo/accountability-cross-community
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Carlos, As the legal sub-team was disbanded, your guess is as good as mine..... Greg On Mon, Jul 6, 2015 at 12:27 AM, Carlos Raul <carlosraulg@gmail.com> wrote:
Thank you Greg!
It makes a lot of sense and I guess those are all good reasons as we hired them in the first place. What are the next steps now? What happened in the recent call?
Best regards
*Carlos Raúl Gutiérrez* +506 8837 7176 Skype carlos.raulg _________ Apartado 1571-1000 *COSTA RICA*
On Mon, Jul 6, 2015 at 12:02 AM, Greg Shatan <gregshatanipc@gmail.com> wrote:
Chris,
That was tried to some extent, at least in the CWG.
There are several substantial problems with that approach.
First, lawyers are not fungible. The particular legal skills, background and experience required for the issues before both WGs are fairly specific, and in some cases, very specific. The primary core competency needed here is corporate governance. While a number of lawyers in the community have a reasonable working knowledge of the area, at least in their home jurisdictions, I don't believe there are any who would say that this is their primary focus and expertise -- at least none who identified themselves to either WG. The second core competency required, especially in the CCWG, is non-profit law. Again there are a number of lawyers with a decent working knowledge of this fairly broad field, but not as a primary focus. There may be a couple of lawyers in the community who would claim this fairly broad field as a primary focus and expertise -- but none who became involved with either WG. This then becomes further narrowed by jurisdiction. Since ICANN is a California non-profit corporation, US corporate governance and non-profit experience is more relevant than experience from other jurisdictions, and California law corporate governance and non-profit experience is more relevant than that from other US jurisdictions. In my experience, the more a US lawyer focuses on a particular substantive area, the greater their knowledge of and comfort with state law issues in US state jurisdictions other than their own (e.g., someone who spend a majority of their time working in corporate governance will have a greater knowledge of the law, issues, approaches and trends outside their primary state of practice, while someone who spends a relatively small amount of time in the area will tend to feel less comfortable outside their home jurisdiction). (An exception is that many US lawyers have specific knowledge of certain Delaware corporate law issues, because Delaware often serves as the state of incorporation for entities operating elsewhere.)
Second, lawyers in the community will seldom be seen as neutral advisors, no matter how hard they try. They will tend to be seen as working from their point of view or stakeholder group or "special interest" or desired outcome, even if they are trying to be even-handed. Over the course of time, this balancing act would tend to become more untenable.
Third, the amount of time it would take to provide truly definitive legal advice (research, careful drafting, discussions with relevant "clients", etc.) would be prohibitive, even compared to the substantial amount of time it takes to provide reasonably well-informed and competent legal-based viewpoints in the course of either WG's work.
Fourth, in order to formally counsel the community, the lawyer or lawyers in question would have to enter into a formal attorney-client relationship. Under US law, an attorney-client relationship may inadvertently be created by the attorney's actions, so attorneys try to be careful about not providing formal legal advice without a formal engagement (sometimes providing an explicit "caveat" if they feel they might be getting too close to providing legal advice). If the attorney is employed by a corporation, they would likely be unable to take on such a representation due to the terms of their employment, and that is before getting to an exploration of conflict of interest issues. If the attorney is employed by a firm, the firm would have to sign off on the representation, again dealing with potential conflict issues.
Fifth, even if the above issues were all somehow resolved, it would be highly unlikely that any such attorney would provide substantial amounts of advice, written memos, counseling, etc. on a pro bono (unpaid) basis, especially given the time-consuming nature of the work. Pro bono advice and representation is generally accorded to individuals and entities that could not otherwise be able to pay for it. That is clearly not the case here, at least with ICANN taking financial responsibility. It would likely be very difficult to justify this to, e.g., a firm's pro bono committee, as a valid pro bono representation.
Sixth, if ICANN were not taking the role they are taking, it would be extremely difficult to identify the "client" in this situation. The "community" is a collection of sectors, mostly represented by various ICANN-created structures, which in turn have members of widely varying types (individuals, corporations, sovereigns, non-profits, IGOs, partnerships, etc.). This would also make it extremely difficult to enter into a formal counseling relationship with the "community."
Seventh, this is a sensitive, high-profile, transformative set of actions we are involved in, which is subject to an extraordinary amount of scrutiny, not least that of the NTIA and the US Congress. That eliminates any possibility of providing informal, off-the-cuff, reasonably well-informed but not quite expert, "non-advice" advice -- which might happen in a more obscure exercise. There's simply too much at stake.
Finally, I would say that a number of attorneys involved in one or both of the WGs are in fact providing a significant amount of legal knowledge and experience to the WGs, helping to frame issues, whether in terms of general leadership (e.g., Thomas, Leon, Becky) or more specifically in a "lawyer-as-client" capacity -- working with outside counsel, tackling the more legalistic issues, providing as much legal background and knowledge as possible without providing the type of formal legal advice that would tend to create an attorney-client relationship, etc. So I do think that many lawyers in the community are giving greatly of themselves in this process, even though they cannot and would not be able to formally be engaged by the community as its "counsel of record."
In sum, it might be a nice thought in theory, but it is no way a practical possibility.
Greg
On Sat, Jul 4, 2015 at 3:08 AM, CW Lists <lists@christopherwilkinson.eu> wrote:
Good morning:
I had decided not to enter this debate. But I am bound to say that the thought had occurred to me at the time, that there were more than enough qualified lawyers in this community that they could perfectly well have counselled … themselves.
CW
On 04 Jul 2015, at 08:41, Greg Shatan <gregshatanipc@gmail.com> wrote:
Wolfgang,
To your first point, the billing rates were clearly stated in the law firms' engagement letters.
To your second point, I'm sure we could all think of other projects and goals where the money could have been "better spent." You've stated yours. But that is not the proper test. This was and continues to be money we need to spend to achieve the goals we have set. Under different circumstances, perhaps it would be a different amount (or maybe none at all). But it was strongly felt at the outset that the group needed to have independent counsel. Clearly that counsel needed to have recognized expertise in the appropriate legal areas. As such, I believe we made excellent choices and have been very well represented.
As to your "better spent" test, I just had to have $4000.00 worth of emergency dental work done. This money definitely could have been "better spent" on a nice vacation, redecorating our living room or on donations to my favored charitable causes. But I had no choice, other than to choose which dentist and endodontist I went to, and I wasn't going to cut corners -- the dental work was a necessity. Similarly, the legal work we are getting is a necessity and whether we would have preferred to spend the money elsewhere is not merely irrelevant, it is an incorrect and inappropriate proposition. Many of us are investing vast quantities of time that could be "better spent" elsewhere as well, but we are willing (grudgingly sometimes) to spend the time it takes to get it right, because we believe it needs to be done. This is the appropriate measure, whether it comes to our time or counsels' time. If we believe in this project, we have to invest in it, and do what it takes to succeed.
Of course, this investment has to be managed wisely and cost-effectively, and by and large, I believe the CCWG has done that reasonably well -- not perfectly, but reasonably well and with "course corrections" along the way intended to improve that management. It's certainly fair to ask, as Robin has done, for a better understanding of that management as we go along. But asserting that the money could have been "better spent" elsewhere sets up a false test that we should not use to evaluate this important aspect of our work. Instead, we need to focus on whether the money was "well spent" on these critical legal services. If you have reason to believe it was not, that could be useful to know. That would at least be the right discussion to have.
Greg
On Sat, Jul 4, 2015 at 1:13 AM, "Kleinwächter, Wolfgang" < wolfgang.kleinwaechter@medienkomm.uni-halle.de> wrote:
HI,
and please if you ask outside lawyers, ask for the price tag in advance. Some of the money spend fo lawyers could have been spend better to suppport and enable Internet user and non-commercial groups in developing countries.
Wolfgang
-----Ursprüngliche Nachricht----- Von: accountability-cross-community-bounces@icann.org im Auftrag von Robin Gross Gesendet: Fr 03.07.2015 14:57 An: accountability-cross-community@icann.org Community Betreff: [CCWG-ACCT] Who is managing the lawyers and what have they beenasked to do?
After the legal sub-team was disbanded, I haven't been able to follow what communications are happening with CCWG and the independent lawyers we retained.
I understand the lawyers are currently "working on the various models" and will present something to us regarding that work soon. However, *what exactly* have the lawyers been asked to do and *who* asked them? If there are written instructions, may the group please see them? Who is now taking on the role of managing the outside attorneys for this group, including providing instructions and certifying legal work?
Sorry, but I'm really trying to understand what is happening, and there doesn't seem to be much information in the public on this (or if there is, I can't find it). Thanks for any information anyone can provide.
Best, Robin
_______________________________________________ Accountability-Cross-Community mailing list Accountability-Cross-Community@icann.org https://mm.icann.org/mailman/listinfo/accountability-cross-community
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I listened to the last co-chairs lawyers’ call at; https://community.icann.org/pages/viewpage.action?pageId=53782602 (I’m a glutton for punishment) It was a short call and I’ll make a particular note that Leon and Mathieu made a point of not making any decisions on behalf of the whole group and made it clear anything requiring a decision must be made by the overall CCWG, so I was happy with that side of things myself, most of my own fears about not having a sub-group are somewhat assuaged. So my paraphrasing and overview is: · Lawyers working hard on the models for us collaboratively between the two firms since BA · Lawyers are prepping a presentation to give to us ASAP before Paris if possible, that presentation will take the majority of a call, it can’t be done quickly, they need about 45mins uninterrupted to go through the presentation and then would likely need Q&A time after they present. · Some small wording/clarifications to come back to the CCWG to make sure everyone’s on the same page · Everyone feels Paris will be an important time for the models, lawyers will be ready for a grilling on the details of the models from us to flesh out any of our concerns/questions Note that the above is all my very condensed overview of the conversations. It seemed like a productive call to me. -James From: accountability-cross-community-bounces@icann.org [mailto:accountability-cross-community-bounces@icann.org] On Behalf Of Greg Shatan Sent: Monday, July 06, 2015 5:33 AM To: Carlos Raul Cc: accountability-cross-community@icann.org Subject: Re: [CCWG-ACCT] Who is managing the lawyers and what have they beenasked to do? Carlos, As the legal sub-team was disbanded, your guess is as good as mine..... Greg On Mon, Jul 6, 2015 at 12:27 AM, Carlos Raul <carlosraulg@gmail.com<mailto:carlosraulg@gmail.com>> wrote: Thank you Greg! It makes a lot of sense and I guess those are all good reasons as we hired them in the first place. What are the next steps now? What happened in the recent call? Best regards Carlos Raúl Gutiérrez +506 8837 7176<tel:%2B506%208837%207176> Skype carlos.raulg _________ Apartado 1571-1000 COSTA RICA On Mon, Jul 6, 2015 at 12:02 AM, Greg Shatan <gregshatanipc@gmail.com<mailto:gregshatanipc@gmail.com>> wrote: Chris, That was tried to some extent, at least in the CWG. There are several substantial problems with that approach. First, lawyers are not fungible. The particular legal skills, background and experience required for the issues before both WGs are fairly specific, and in some cases, very specific. The primary core competency needed here is corporate governance. While a number of lawyers in the community have a reasonable working knowledge of the area, at least in their home jurisdictions, I don't believe there are any who would say that this is their primary focus and expertise -- at least none who identified themselves to either WG. The second core competency required, especially in the CCWG, is non-profit law. Again there are a number of lawyers with a decent working knowledge of this fairly broad field, but not as a primary focus. There may be a couple of lawyers in the community who would claim this fairly broad field as a primary focus and expertise -- but none who became involved with either WG. This then becomes further narrowed by jurisdiction. Since ICANN is a California non-profit corporation, US corporate governance and non-profit experience is more relevant than experience from other jurisdictions, and California law corporate governance and non-profit experience is more relevant than that from other US jurisdictions. In my experience, the more a US lawyer focuses on a particular substantive area, the greater their knowledge of and comfort with state law issues in US state jurisdictions other than their own (e.g., someone who spend a majority of their time working in corporate governance will have a greater knowledge of the law, issues, approaches and trends outside their primary state of practice, while someone who spends a relatively small amount of time in the area will tend to feel less comfortable outside their home jurisdiction). (An exception is that many US lawyers have specific knowledge of certain Delaware corporate law issues, because Delaware often serves as the state of incorporation for entities operating elsewhere.) Second, lawyers in the community will seldom be seen as neutral advisors, no matter how hard they try. They will tend to be seen as working from their point of view or stakeholder group or "special interest" or desired outcome, even if they are trying to be even-handed. Over the course of time, this balancing act would tend to become more untenable. Third, the amount of time it would take to provide truly definitive legal advice (research, careful drafting, discussions with relevant "clients", etc.) would be prohibitive, even compared to the substantial amount of time it takes to provide reasonably well-informed and competent legal-based viewpoints in the course of either WG's work. Fourth, in order to formally counsel the community, the lawyer or lawyers in question would have to enter into a formal attorney-client relationship. Under US law, an attorney-client relationship may inadvertently be created by the attorney's actions, so attorneys try to be careful about not providing formal legal advice without a formal engagement (sometimes providing an explicit "caveat" if they feel they might be getting too close to providing legal advice). If the attorney is employed by a corporation, they would likely be unable to take on such a representation due to the terms of their employment, and that is before getting to an exploration of conflict of interest issues. If the attorney is employed by a firm, the firm would have to sign off on the representation, again dealing with potential conflict issues. Fifth, even if the above issues were all somehow resolved, it would be highly unlikely that any such attorney would provide substantial amounts of advice, written memos, counseling, etc. on a pro bono (unpaid) basis, especially given the time-consuming nature of the work. Pro bono advice and representation is generally accorded to individuals and entities that could not otherwise be able to pay for it. That is clearly not the case here, at least with ICANN taking financial responsibility. It would likely be very difficult to justify this to, e.g., a firm's pro bono committee, as a valid pro bono representation. Sixth, if ICANN were not taking the role they are taking, it would be extremely difficult to identify the "client" in this situation. The "community" is a collection of sectors, mostly represented by various ICANN-created structures, which in turn have members of widely varying types (individuals, corporations, sovereigns, non-profits, IGOs, partnerships, etc.). This would also make it extremely difficult to enter into a formal counseling relationship with the "community." Seventh, this is a sensitive, high-profile, transformative set of actions we are involved in, which is subject to an extraordinary amount of scrutiny, not least that of the NTIA and the US Congress. That eliminates any possibility of providing informal, off-the-cuff, reasonably well-informed but not quite expert, "non-advice" advice -- which might happen in a more obscure exercise. There's simply too much at stake. Finally, I would say that a number of attorneys involved in one or both of the WGs are in fact providing a significant amount of legal knowledge and experience to the WGs, helping to frame issues, whether in terms of general leadership (e.g., Thomas, Leon, Becky) or more specifically in a "lawyer-as-client" capacity -- working with outside counsel, tackling the more legalistic issues, providing as much legal background and knowledge as possible without providing the type of formal legal advice that would tend to create an attorney-client relationship, etc. So I do think that many lawyers in the community are giving greatly of themselves in this process, even though they cannot and would not be able to formally be engaged by the community as its "counsel of record." In sum, it might be a nice thought in theory, but it is no way a practical possibility. Greg On Sat, Jul 4, 2015 at 3:08 AM, CW Lists <lists@christopherwilkinson.eu<mailto:lists@christopherwilkinson.eu>> wrote: Good morning: I had decided not to enter this debate. But I am bound to say that the thought had occurred to me at the time, that there were more than enough qualified lawyers in this community that they could perfectly well have counselled … themselves. CW On 04 Jul 2015, at 08:41, Greg Shatan <gregshatanipc@gmail.com<mailto:gregshatanipc@gmail.com>> wrote: Wolfgang, To your first point, the billing rates were clearly stated in the law firms' engagement letters. To your second point, I'm sure we could all think of other projects and goals where the money could have been "better spent." You've stated yours. But that is not the proper test. This was and continues to be money we need to spend to achieve the goals we have set. Under different circumstances, perhaps it would be a different amount (or maybe none at all). But it was strongly felt at the outset that the group needed to have independent counsel. Clearly that counsel needed to have recognized expertise in the appropriate legal areas. As such, I believe we made excellent choices and have been very well represented. As to your "better spent" test, I just had to have $4000.00 worth of emergency dental work done. This money definitely could have been "better spent" on a nice vacation, redecorating our living room or on donations to my favored charitable causes. But I had no choice, other than to choose which dentist and endodontist I went to, and I wasn't going to cut corners -- the dental work was a necessity. Similarly, the legal work we are getting is a necessity and whether we would have preferred to spend the money elsewhere is not merely irrelevant, it is an incorrect and inappropriate proposition. Many of us are investing vast quantities of time that could be "better spent" elsewhere as well, but we are willing (grudgingly sometimes) to spend the time it takes to get it right, because we believe it needs to be done. This is the appropriate measure, whether it comes to our time or counsels' time. If we believe in this project, we have to invest in it, and do what it takes to succeed. Of course, this investment has to be managed wisely and cost-effectively, and by and large, I believe the CCWG has done that reasonably well -- not perfectly, but reasonably well and with "course corrections" along the way intended to improve that management. It's certainly fair to ask, as Robin has done, for a better understanding of that management as we go along. But asserting that the money could have been "better spent" elsewhere sets up a false test that we should not use to evaluate this important aspect of our work. Instead, we need to focus on whether the money was "well spent" on these critical legal services. If you have reason to believe it was not, that could be useful to know. That would at least be the right discussion to have. Greg On Sat, Jul 4, 2015 at 1:13 AM, "Kleinwächter, Wolfgang" <wolfgang.kleinwaechter@medienkomm.uni-halle.de<mailto:wolfgang.kleinwaechter@medienkomm.uni-halle.de>> wrote: HI, and please if you ask outside lawyers, ask for the price tag in advance. Some of the money spend fo lawyers could have been spend better to suppport and enable Internet user and non-commercial groups in developing countries. Wolfgang -----Ursprüngliche Nachricht----- Von: accountability-cross-community-bounces@icann.org<mailto:accountability-cross-community-bounces@icann.org> im Auftrag von Robin Gross Gesendet: Fr 03.07.2015 14:57 An: accountability-cross-community@icann.org<mailto:accountability-cross-community@icann.org> Community Betreff: [CCWG-ACCT] Who is managing the lawyers and what have they beenasked to do? After the legal sub-team was disbanded, I haven't been able to follow what communications are happening with CCWG and the independent lawyers we retained. I understand the lawyers are currently "working on the various models" and will present something to us regarding that work soon. However, *what exactly* have the lawyers been asked to do and *who* asked them? If there are written instructions, may the group please see them? Who is now taking on the role of managing the outside attorneys for this group, including providing instructions and certifying legal work? Sorry, but I'm really trying to understand what is happening, and there doesn't seem to be much information in the public on this (or if there is, I can't find it). Thanks for any information anyone can provide. Best, Robin _______________________________________________ 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
Dear Co-Chairs, non withstanding my question about how this came to pass, I think it would be helpful to allow listen-only live access for all who can listen to the recording and read the transcript. I also note that my question has been ignored, as usual, but I still demand an answer. greetings, el -- Sent from Dr Lisse's iPad mini
On Jul 6, 2015, at 10:07, James Gannon <james@cyberinvasion.net> wrote:
I listened to the last co-chairs lawyers’ call at; https://community.icann.org/pages/viewpage.action?pageId=53782602 (I’m a glutton for punishment)
It was a short call and I’ll make a particular note that Leon and Mathieu made a point of not making any decisions on behalf of the whole group and made it clear anything requiring a decision must be made by the overall CCWG, so I was happy with that side of things myself, most of my own fears about not having a sub-group are somewhat assuaged. So my paraphrasing and overview is:
· Lawyers working hard on the models for us collaboratively between the two firms since BA · Lawyers are prepping a presentation to give to us ASAP before Paris if possible, that presentation will take the majority of a call, it can’t be done quickly, they need about 45mins uninterrupted to go through the presentation and then would likely need Q&A time after they present. · Some small wording/clarifications to come back to the CCWG to make sure everyone’s on the same page · Everyone feels Paris will be an important time for the models, lawyers will be ready for a grilling on the details of the models from us to flesh out any of our concerns/questions
Note that the above is all my very condensed overview of the conversations. It seemed like a productive call to me.
-James
[...]
Hi, I have not had a chance to get back to the recording of the call. Not sure I will, that time was the time I had for that call and that is why i was listening then. In any case, the lawyers were talking about a new model they had come up with, but not knowing what to do about it since they had not been asked for a new model. I was told to leave before I got to hear the end of that story. Or about the model itself. Anyone who has had a chance to listen, whatever happened? avri ps. sometimes i think the lawyers are getting interested in what we are doing, almost like stakeholders. not that i expect them to give up their hourly rates because they are stakeholders. On 06-Jul-15 05:07, James Gannon wrote:
I listened to the last co-chairs lawyers’ call at; https://community.icann.org/pages/viewpage.action?pageId=53782602 (I’m a glutton for punishment)
It was a short call and I’ll make a particular note that Leon and Mathieu made a point of not making any decisions on behalf of the whole group and made it clear anything requiring a decision must be made by the overall CCWG, so I was happy with that side of things myself, most of my own fears about not having a sub-group are somewhat assuaged.
So my paraphrasing and overview is:
· Lawyers working hard on the models for us collaboratively between the two firms since BA
· Lawyers are prepping a presentation to give to us ASAP before Paris if possible, that presentation will take the majority of a call, it can’t be done quickly, they need about 45mins uninterrupted to go through the presentation and then would likely need Q&A time after they present.
· Some small wording/clarifications to come back to the CCWG to make sure everyone’s on the same page
· Everyone feels Paris will be an important time for the models, lawyers will be ready for a grilling on the details of the models from us to flesh out any of our concerns/questions
Note that the above is all my very condensed overview of the conversations.
It seemed like a productive call to me.
-James
*From:*accountability-cross-community-bounces@icann.org [mailto:accountability-cross-community-bounces@icann.org] *On Behalf Of *Greg Shatan *Sent:* Monday, July 06, 2015 5:33 AM *To:* Carlos Raul *Cc:* accountability-cross-community@icann.org *Subject:* Re: [CCWG-ACCT] Who is managing the lawyers and what have they beenasked to do?
Carlos,
As the legal sub-team was disbanded, your guess is as good as mine.....
Greg
On Mon, Jul 6, 2015 at 12:27 AM, Carlos Raul <carlosraulg@gmail.com <mailto:carlosraulg@gmail.com>> wrote:
Thank you Greg!
It makes a lot of sense and I guess those are all good reasons as we hired them in the first place. What are the next steps now? What happened in the recent call?
Best regards
Carlos Raúl Gutiérrez
+506 8837 7176 <tel:%2B506%208837%207176>
Skype carlos.raulg
_________
Apartado 1571-1000
*COSTA RICA*
On Mon, Jul 6, 2015 at 12:02 AM, Greg Shatan <gregshatanipc@gmail.com <mailto:gregshatanipc@gmail.com>> wrote:
Chris,
That was tried to some extent, at least in the CWG.
There are several substantial problems with that approach.
First, lawyers are not fungible. The particular legal skills, background and experience required for the issues before both WGs are fairly specific, and in some cases, very specific. The primary core competency needed here is corporate governance. While a number of lawyers in the community have a reasonable working knowledge of the area, at least in their home jurisdictions, I don't believe there are any who would say that this is their primary focus and expertise -- at least none who identified themselves to either WG. The second core competency required, especially in the CCWG, is non-profit law. Again there are a number of lawyers with a decent working knowledge of this fairly broad field, but not as a primary focus. There may be a couple of lawyers in the community who would claim this fairly broad field as a primary focus and expertise -- but none who became involved with either WG. This then becomes further narrowed by jurisdiction. Since ICANN is a California non-profit corporation, US corporate governance and non-profit experience is more relevant than experience from other jurisdictions, and California law corporate governance and non-profit experience is more relevant than that from other US jurisdictions. In my experience, the more a US lawyer focuses on a particular substantive area, the greater their knowledge of and comfort with state law issues in US state jurisdictions other than their own (e.g., someone who spend a majority of their time working in corporate governance will have a greater knowledge of the law, issues, approaches and trends outside their primary state of practice, while someone who spends a relatively small amount of time in the area will tend to feel less comfortable outside their home jurisdiction). (An exception is that many US lawyers have specific knowledge of certain Delaware corporate law issues, because Delaware often serves as the state of incorporation for entities operating elsewhere.)
Second, lawyers in the community will seldom be seen as neutral advisors, no matter how hard they try. They will tend to be seen as working from their point of view or stakeholder group or "special interest" or desired outcome, even if they are trying to be even-handed. Over the course of time, this balancing act would tend to become more untenable.
Third, the amount of time it would take to provide truly definitive legal advice (research, careful drafting, discussions with relevant "clients", etc.) would be prohibitive, even compared to the substantial amount of time it takes to provide reasonably well-informed and competent legal-based viewpoints in the course of either WG's work.
Fourth, in order to formally counsel the community, the lawyer or lawyers in question would have to enter into a formal attorney-client relationship. Under US law, an attorney-client relationship may inadvertently be created by the attorney's actions, so attorneys try to be careful about not providing formal legal advice without a formal engagement (sometimes providing an explicit "caveat" if they feel they might be getting too close to providing legal advice). If the attorney is employed by a corporation, they would likely be unable to take on such a representation due to the terms of their employment, and that is before getting to an exploration of conflict of interest issues. If the attorney is employed by a firm, the firm would have to sign off on the representation, again dealing with potential conflict issues.
Fifth, even if the above issues were all somehow resolved, it would be highly unlikely that any such attorney would provide substantial amounts of advice, written memos, counseling, etc. on a pro bono (unpaid) basis, especially given the time-consuming nature of the work. Pro bono advice and representation is generally accorded to individuals and entities that could not otherwise be able to pay for it. That is clearly not the case here, at least with ICANN taking financial responsibility. It would likely be very difficult to justify this to, e.g., a firm's pro bono committee, as a valid pro bono representation.
Sixth, if ICANN were not taking the role they are taking, it would be extremely difficult to identify the "client" in this situation. The "community" is a collection of sectors, mostly represented by various ICANN-created structures, which in turn have members of widely varying types (individuals, corporations, sovereigns, non-profits, IGOs, partnerships, etc.). This would also make it extremely difficult to enter into a formal counseling relationship with the "community."
Seventh, this is a sensitive, high-profile, transformative set of actions we are involved in, which is subject to an extraordinary amount of scrutiny, not least that of the NTIA and the US Congress. That eliminates any possibility of providing informal, off-the-cuff, reasonably well-informed but not quite expert, "non-advice" advice -- which might happen in a more obscure exercise. There's simply too much at stake.
Finally, I would say that a number of attorneys involved in one or both of the WGs are in fact providing a significant amount of legal knowledge and experience to the WGs, helping to frame issues, whether in terms of general leadership (e.g., Thomas, Leon, Becky) or more specifically in a "lawyer-as-client" capacity -- working with outside counsel, tackling the more legalistic issues, providing as much legal background and knowledge as possible without providing the type of formal legal advice that would tend to create an attorney-client relationship, etc. So I do think that many lawyers in the community are giving greatly of themselves in this process, even though they cannot and would not be able to formally be engaged by the community as its "counsel of record."
In sum, it might be a nice thought in theory, but it is no way a practical possibility.
Greg
On Sat, Jul 4, 2015 at 3:08 AM, CW Lists <lists@christopherwilkinson.eu <mailto:lists@christopherwilkinson.eu>> wrote:
Good morning:
I had decided not to enter this debate. But I am bound to say that the thought had occurred to me at the time, that there were more than enough qualified lawyers in this community that they could perfectly well have counselled … themselves.
CW
On 04 Jul 2015, at 08:41, Greg Shatan <gregshatanipc@gmail.com <mailto:gregshatanipc@gmail.com>> wrote:
Wolfgang,
To your first point, the billing rates were clearly stated in the law firms' engagement letters.
To your second point, I'm sure we could all think of other projects and goals where the money could have been "better spent." You've stated yours. But that is not the proper test. This was and continues to be money we need to spend to achieve the goals we have set. Under different circumstances, perhaps it would be a different amount (or maybe none at all). But it was strongly felt at the outset that the group needed to have independent counsel. Clearly that counsel needed to have recognized expertise in the appropriate legal areas. As such, I believe we made excellent choices and have been very well represented.
As to your "better spent" test, I just had to have $4000.00 worth of emergency dental work done. This money definitely could have been "better spent" on a nice vacation, redecorating our living room or on donations to my favored charitable causes. But I had no choice, other than to choose which dentist and endodontist I went to, and I wasn't going to cut corners -- the dental work was a necessity. Similarly, the legal work we are getting is a necessity and whether we would have preferred to spend the money elsewhere is not merely irrelevant, it is an incorrect and inappropriate proposition. Many of us are investing vast quantities of time that could be "better spent" elsewhere as well, but we are willing (grudgingly sometimes) to spend the time it takes to get it right, because we believe it needs to be done. This is the appropriate measure, whether it comes to our time or counsels' time. If we believe in this project, we have to invest in it, and do what it takes to succeed.
Of course, this investment has to be managed wisely and cost-effectively, and by and large, I believe the CCWG has done that reasonably well -- not perfectly, but reasonably well and with "course corrections" along the way intended to improve that management. It's certainly fair to ask, as Robin has done, for a better understanding of that management as we go along. But asserting that the money could have been "better spent" elsewhere sets up a false test that we should not use to evaluate this important aspect of our work. Instead, we need to focus on whether the money was "well spent" on these critical legal services. If you have reason to believe it was not, that could be useful to know. That would at least be the right discussion to have.
Greg
On Sat, Jul 4, 2015 at 1:13 AM, "Kleinwächter, Wolfgang" <wolfgang.kleinwaechter@medienkomm.uni-halle.de <mailto:wolfgang.kleinwaechter@medienkomm.uni-halle.de>> wrote:
HI,
and please if you ask outside lawyers, ask for the price tag in advance. Some of the money spend fo lawyers could have been spend better to suppport and enable Internet user and non-commercial groups in developing countries.
Wolfgang
-----Ursprüngliche Nachricht----- Von: accountability-cross-community-bounces@icann.org <mailto:accountability-cross-community-bounces@icann.org> im Auftrag von Robin Gross Gesendet: Fr 03.07.2015 14:57 An: accountability-cross-community@icann.org <mailto:accountability-cross-community@icann.org> Community Betreff: [CCWG-ACCT] Who is managing the lawyers and what have they beenasked to do?
After the legal sub-team was disbanded, I haven't been able to follow what communications are happening with CCWG and the independent lawyers we retained.
I understand the lawyers are currently "working on the various models" and will present something to us regarding that work soon. However, *what exactly* have the lawyers been asked to do and *who* asked them? If there are written instructions, may the group please see them? Who is now taking on the role of managing the outside attorneys for this group, including providing instructions and certifying legal work?
Sorry, but I'm really trying to understand what is happening, and there doesn't seem to be much information in the public on this (or if there is, I can't find it). Thanks for any information anyone can provide.
Best, Robin
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Hey Avri, Yes the 3rd model was brought up, and the lawyers feel that it might be a cleaner way for us to get the powers that we need. But without a call from the CCWG to present it they feel that its not their position to propose a model on their own initiative. Personally i would like to see what they have come up with but the CCWG would need to ask as an overall group for the chairs to direct them to give some more information on the model if we wanted it. I think if after we hear from them on Tuesdays call we still feel we might have some shortcomings that it might be the time to ask them about the 3rd option. Also +1 I think they are really enjoying the work and are finding themselves getting more and more involved as we go on, which is great for the CCWG as the more background and details they know the better that are able to give us solid well reasoned advice in my opinion. -James On 6 Jul 2015, at 13:19, Avri Doria <avri@acm.org<mailto:avri@acm.org>> wrote: Hi, I have not had a chance to get back to the recording of the call. Not sure I will, that time was the time I had for that call and that is why i was listening then. In any case, the lawyers were talking about a new model they had come up with, but not knowing what to do about it since they had not been asked for a new model. I was told to leave before I got to hear the end of that story. Or about the model itself. Anyone who has had a chance to listen, whatever happened? avri ps. sometimes i think the lawyers are getting interested in what we are doing, almost like stakeholders. not that i expect them to give up their hourly rates because they are stakeholders. On 06-Jul-15 05:07, James Gannon wrote: I listened to the last co-chairs lawyers’ call at; https://community.icann.org/pages/viewpage.action?pageId=53782602 (I’m a glutton for punishment) It was a short call and I’ll make a particular note that Leon and Mathieu made a point of not making any decisions on behalf of the whole group and made it clear anything requiring a decision must be made by the overall CCWG, so I was happy with that side of things myself, most of my own fears about not having a sub-group are somewhat assuaged. So my paraphrasing and overview is: · Lawyers working hard on the models for us collaboratively between the two firms since BA · Lawyers are prepping a presentation to give to us ASAP before Paris if possible, that presentation will take the majority of a call, it can’t be done quickly, they need about 45mins uninterrupted to go through the presentation and then would likely need Q&A time after they present. · Some small wording/clarifications to come back to the CCWG to make sure everyone’s on the same page · Everyone feels Paris will be an important time for the models, lawyers will be ready for a grilling on the details of the models from us to flesh out any of our concerns/questions Note that the above is all my very condensed overview of the conversations. It seemed like a productive call to me. -James *From:*accountability-cross-community-bounces@icann.org [mailto:accountability-cross-community-bounces@icann.org] *On Behalf Of *Greg Shatan *Sent:* Monday, July 06, 2015 5:33 AM *To:* Carlos Raul *Cc:* accountability-cross-community@icann.org *Subject:* Re: [CCWG-ACCT] Who is managing the lawyers and what have they beenasked to do? Carlos, As the legal sub-team was disbanded, your guess is as good as mine..... Greg On Mon, Jul 6, 2015 at 12:27 AM, Carlos Raul <carlosraulg@gmail.com <mailto:carlosraulg@gmail.com>> wrote: Thank you Greg! It makes a lot of sense and I guess those are all good reasons as we hired them in the first place. What are the next steps now? What happened in the recent call? Best regards Carlos Raúl Gutiérrez +506 8837 7176 <tel:%2B506%208837%207176> Skype carlos.raulg _________ Apartado 1571-1000 *COSTA RICA* On Mon, Jul 6, 2015 at 12:02 AM, Greg Shatan <gregshatanipc@gmail.com<mailto:gregshatanipc@gmail.com> <mailto:gregshatanipc@gmail.com>> wrote: Chris, That was tried to some extent, at least in the CWG. There are several substantial problems with that approach. First, lawyers are not fungible. The particular legal skills, background and experience required for the issues before both WGs are fairly specific, and in some cases, very specific. The primary core competency needed here is corporate governance. While a number of lawyers in the community have a reasonable working knowledge of the area, at least in their home jurisdictions, I don't believe there are any who would say that this is their primary focus and expertise -- at least none who identified themselves to either WG. The second core competency required, especially in the CCWG, is non-profit law. Again there are a number of lawyers with a decent working knowledge of this fairly broad field, but not as a primary focus. There may be a couple of lawyers in the community who would claim this fairly broad field as a primary focus and expertise -- but none who became involved with either WG. This then becomes further narrowed by jurisdiction. Since ICANN is a California non-profit corporation, US corporate governance and non-profit experience is more relevant than experience from other jurisdictions, and California law corporate governance and non-profit experience is more relevant than that from other US jurisdictions. In my experience, the more a US lawyer focuses on a particular substantive area, the greater their knowledge of and comfort with state law issues in US state jurisdictions other than their own (e.g., someone who spend a majority of their time working in corporate governance will have a greater knowledge of the law, issues, approaches and trends outside their primary state of practice, while someone who spends a relatively small amount of time in the area will tend to feel less comfortable outside their home jurisdiction). (An exception is that many US lawyers have specific knowledge of certain Delaware corporate law issues, because Delaware often serves as the state of incorporation for entities operating elsewhere.) Second, lawyers in the community will seldom be seen as neutral advisors, no matter how hard they try. They will tend to be seen as working from their point of view or stakeholder group or "special interest" or desired outcome, even if they are trying to be even-handed. Over the course of time, this balancing act would tend to become more untenable. Third, the amount of time it would take to provide truly definitive legal advice (research, careful drafting, discussions with relevant "clients", etc.) would be prohibitive, even compared to the substantial amount of time it takes to provide reasonably well-informed and competent legal-based viewpoints in the course of either WG's work. Fourth, in order to formally counsel the community, the lawyer or lawyers in question would have to enter into a formal attorney-client relationship. Under US law, an attorney-client relationship may inadvertently be created by the attorney's actions, so attorneys try to be careful about not providing formal legal advice without a formal engagement (sometimes providing an explicit "caveat" if they feel they might be getting too close to providing legal advice). If the attorney is employed by a corporation, they would likely be unable to take on such a representation due to the terms of their employment, and that is before getting to an exploration of conflict of interest issues. If the attorney is employed by a firm, the firm would have to sign off on the representation, again dealing with potential conflict issues. Fifth, even if the above issues were all somehow resolved, it would be highly unlikely that any such attorney would provide substantial amounts of advice, written memos, counseling, etc. on a pro bono (unpaid) basis, especially given the time-consuming nature of the work. Pro bono advice and representation is generally accorded to individuals and entities that could not otherwise be able to pay for it. That is clearly not the case here, at least with ICANN taking financial responsibility. It would likely be very difficult to justify this to, e.g., a firm's pro bono committee, as a valid pro bono representation. Sixth, if ICANN were not taking the role they are taking, it would be extremely difficult to identify the "client" in this situation. The "community" is a collection of sectors, mostly represented by various ICANN-created structures, which in turn have members of widely varying types (individuals, corporations, sovereigns, non-profits, IGOs, partnerships, etc.). This would also make it extremely difficult to enter into a formal counseling relationship with the "community." Seventh, this is a sensitive, high-profile, transformative set of actions we are involved in, which is subject to an extraordinary amount of scrutiny, not least that of the NTIA and the US Congress. That eliminates any possibility of providing informal, off-the-cuff, reasonably well-informed but not quite expert, "non-advice" advice -- which might happen in a more obscure exercise. There's simply too much at stake. Finally, I would say that a number of attorneys involved in one or both of the WGs are in fact providing a significant amount of legal knowledge and experience to the WGs, helping to frame issues, whether in terms of general leadership (e.g., Thomas, Leon, Becky) or more specifically in a "lawyer-as-client" capacity -- working with outside counsel, tackling the more legalistic issues, providing as much legal background and knowledge as possible without providing the type of formal legal advice that would tend to create an attorney-client relationship, etc. So I do think that many lawyers in the community are giving greatly of themselves in this process, even though they cannot and would not be able to formally be engaged by the community as its "counsel of record." In sum, it might be a nice thought in theory, but it is no way a practical possibility. Greg On Sat, Jul 4, 2015 at 3:08 AM, CW Lists <lists@christopherwilkinson.eu<mailto:lists@christopherwilkinson.eu> <mailto:lists@christopherwilkinson.eu>> wrote: Good morning: I had decided not to enter this debate. But I am bound to say that the thought had occurred to me at the time, that there were more than enough qualified lawyers in this community that they could perfectly well have counselled … themselves. CW On 04 Jul 2015, at 08:41, Greg Shatan <gregshatanipc@gmail.com<mailto:gregshatanipc@gmail.com> <mailto:gregshatanipc@gmail.com>> wrote: Wolfgang, To your first point, the billing rates were clearly stated in the law firms' engagement letters. To your second point, I'm sure we could all think of other projects and goals where the money could have been "better spent." You've stated yours. But that is not the proper test. This was and continues to be money we need to spend to achieve the goals we have set. Under different circumstances, perhaps it would be a different amount (or maybe none at all). But it was strongly felt at the outset that the group needed to have independent counsel. Clearly that counsel needed to have recognized expertise in the appropriate legal areas. As such, I believe we made excellent choices and have been very well represented. As to your "better spent" test, I just had to have $4000.00 worth of emergency dental work done. This money definitely could have been "better spent" on a nice vacation, redecorating our living room or on donations to my favored charitable causes. But I had no choice, other than to choose which dentist and endodontist I went to, and I wasn't going to cut corners -- the dental work was a necessity. Similarly, the legal work we are getting is a necessity and whether we would have preferred to spend the money elsewhere is not merely irrelevant, it is an incorrect and inappropriate proposition. Many of us are investing vast quantities of time that could be "better spent" elsewhere as well, but we are willing (grudgingly sometimes) to spend the time it takes to get it right, because we believe it needs to be done. This is the appropriate measure, whether it comes to our time or counsels' time. If we believe in this project, we have to invest in it, and do what it takes to succeed. Of course, this investment has to be managed wisely and cost-effectively, and by and large, I believe the CCWG has done that reasonably well -- not perfectly, but reasonably well and with "course corrections" along the way intended to improve that management. It's certainly fair to ask, as Robin has done, for a better understanding of that management as we go along. But asserting that the money could have been "better spent" elsewhere sets up a false test that we should not use to evaluate this important aspect of our work. Instead, we need to focus on whether the money was "well spent" on these critical legal services. If you have reason to believe it was not, that could be useful to know. That would at least be the right discussion to have. Greg On Sat, Jul 4, 2015 at 1:13 AM, "Kleinwächter, Wolfgang" <wolfgang.kleinwaechter@medienkomm.uni-halle.de<mailto:wolfgang.kleinwaechter@medienkomm.uni-halle.de> <mailto:wolfgang.kleinwaechter@medienkomm.uni-halle.de>> wrote: HI, and please if you ask outside lawyers, ask for the price tag in advance. Some of the money spend fo lawyers could have been spend better to suppport and enable Internet user and non-commercial groups in developing countries. Wolfgang -----Ursprüngliche Nachricht----- Von: accountability-cross-community-bounces@icann.org<mailto:accountability-cross-community-bounces@icann.org> <mailto:accountability-cross-community-bounces@icann.org> im Auftrag von Robin Gross Gesendet: Fr 03.07.2015 14:57 An: accountability-cross-community@icann.org<mailto:accountability-cross-community@icann.org> <mailto:accountability-cross-community@icann.org> Community Betreff: [CCWG-ACCT] Who is managing the lawyers and what have they beenasked to do? After the legal sub-team was disbanded, I haven't been able to follow what communications are happening with CCWG and the independent lawyers we retained. I understand the lawyers are currently "working on the various models" and will present something to us regarding that work soon. However, *what exactly* have the lawyers been asked to do and *who* asked them? If there are written instructions, may the group please see them? Who is now taking on the role of managing the outside attorneys for this group, including providing instructions and certifying legal work? Sorry, but I'm really trying to understand what is happening, and there doesn't seem to be much information in the public on this (or if there is, I can't find it). Thanks for any information anyone can provide. Best, Robin _______________________________________________ Accountability-Cross-Community mailing list Accountability-Cross-Community@icann.org<mailto: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> <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> <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 --- This email has been checked for viruses by Avast antivirus software. https://www.avast.com/antivirus _______________________________________________ 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
Well, I would really really like to see what the creative thinking they have done has suggested. I trust our ability as a group to make decisions, and do not believe we should cut off input from any direction... Jordan On 7 July 2015 at 01:13, James Gannon <james@cyberinvasion.net> wrote:
Hey Avri,
Yes the 3rd model was brought up, and the lawyers feel that it might be a cleaner way for us to get the powers that we need. But without a call from the CCWG to present it they feel that its not their position to propose a model on their own initiative.
Personally i would like to see what they have come up with but the CCWG would need to ask as an overall group for the chairs to direct them to give some more information on the model if we wanted it. I think if after we hear from them on Tuesdays call we still feel we might have some shortcomings that it might be the time to ask them about the 3rd option.
Also +1 I think they are really enjoying the work and are finding themselves getting more and more involved as we go on, which is great for the CCWG as the more background and details they know the better that are able to give us solid well reasoned advice in my opinion.
-James
On 6 Jul 2015, at 13:19, Avri Doria <avri@acm.org> wrote:
Hi,
I have not had a chance to get back to the recording of the call. Not sure I will, that time was the time I had for that call and that is why i was listening then.
In any case, the lawyers were talking about a new model they had come up with, but not knowing what to do about it since they had not been asked for a new model.
I was told to leave before I got to hear the end of that story. Or about the model itself. Anyone who has had a chance to listen, whatever happened?
avri
ps. sometimes i think the lawyers are getting interested in what we are doing, almost like stakeholders. not that i expect them to give up their hourly rates because they are stakeholders.
On 06-Jul-15 05:07, James Gannon wrote:
I listened to the last co-chairs lawyers’ call at; https://community.icann.org/pages/viewpage.action?pageId=53782602 (I’m a glutton for punishment)
It was a short call and I’ll make a particular note that Leon and Mathieu made a point of not making any decisions on behalf of the whole group and made it clear anything requiring a decision must be made by the overall CCWG, so I was happy with that side of things myself, most of my own fears about not having a sub-group are somewhat assuaged.
So my paraphrasing and overview is:
· Lawyers working hard on the models for us collaboratively between the two firms since BA
· Lawyers are prepping a presentation to give to us ASAP before Paris if possible, that presentation will take the majority of a call, it can’t be done quickly, they need about 45mins uninterrupted to go through the presentation and then would likely need Q&A time after they present.
· Some small wording/clarifications to come back to the CCWG to make sure everyone’s on the same page
· Everyone feels Paris will be an important time for the models, lawyers will be ready for a grilling on the details of the models from us to flesh out any of our concerns/questions
Note that the above is all my very condensed overview of the conversations.
It seemed like a productive call to me.
-James
*From:*accountability-cross-community-bounces@icann.org [mailto:accountability-cross-community-bounces@icann.org] *On Behalf Of *Greg Shatan *Sent:* Monday, July 06, 2015 5:33 AM *To:* Carlos Raul *Cc:* accountability-cross-community@icann.org *Subject:* Re: [CCWG-ACCT] Who is managing the lawyers and what have they beenasked to do?
Carlos,
As the legal sub-team was disbanded, your guess is as good as mine.....
Greg
On Mon, Jul 6, 2015 at 12:27 AM, Carlos Raul <carlosraulg@gmail.com <mailto:carlosraulg@gmail.com <carlosraulg@gmail.com>>> wrote:
Thank you Greg!
It makes a lot of sense and I guess those are all good reasons as we hired them in the first place. What are the next steps now? What happened in the recent call?
Best regards
Carlos Raúl Gutiérrez
+506 8837 7176 <tel:%2B506%208837%207176>
Skype carlos.raulg
_________
Apartado 1571-1000
*COSTA RICA*
On Mon, Jul 6, 2015 at 12:02 AM, Greg Shatan <gregshatanipc@gmail.com <mailto:gregshatanipc@gmail.com <gregshatanipc@gmail.com>>> wrote:
Chris,
That was tried to some extent, at least in the CWG.
There are several substantial problems with that approach.
First, lawyers are not fungible. The particular legal skills, background and experience required for the issues before both WGs are fairly specific, and in some cases, very specific. The primary core competency needed here is corporate governance. While a number of lawyers in the community have a reasonable working knowledge of the area, at least in their home jurisdictions, I don't believe there are any who would say that this is their primary focus and expertise -- at least none who identified themselves to either WG. The second core competency required, especially in the CCWG, is non-profit law. Again there are a number of lawyers with a decent working knowledge of this fairly broad field, but not as a primary focus. There may be a couple of lawyers in the community who would claim this fairly broad field as a primary focus and expertise -- but none who became involved with either WG. This then becomes further narrowed by jurisdiction. Since ICANN is a California non-profit corporation, US corporate governance and non-profit experience is more relevant than experience from other jurisdictions, and California law corporate governance and non-profit experience is more relevant than that from other US jurisdictions. In my experience, the more a US lawyer focuses on a particular substantive area, the greater their knowledge of and comfort with state law issues in US state jurisdictions other than their own (e.g., someone who spend a majority of their time working in corporate governance will have a greater knowledge of the law, issues, approaches and trends outside their primary state of practice, while someone who spends a relatively small amount of time in the area will tend to feel less comfortable outside their home jurisdiction). (An exception is that many US lawyers have specific knowledge of certain Delaware corporate law issues, because Delaware often serves as the state of incorporation for entities operating elsewhere.)
Second, lawyers in the community will seldom be seen as neutral advisors, no matter how hard they try. They will tend to be seen as working from their point of view or stakeholder group or "special interest" or desired outcome, even if they are trying to be even-handed. Over the course of time, this balancing act would tend to become more untenable.
Third, the amount of time it would take to provide truly definitive legal advice (research, careful drafting, discussions with relevant "clients", etc.) would be prohibitive, even compared to the substantial amount of time it takes to provide reasonably well-informed and competent legal-based viewpoints in the course of either WG's work.
Fourth, in order to formally counsel the community, the lawyer or lawyers in question would have to enter into a formal attorney-client relationship. Under US law, an attorney-client relationship may inadvertently be created by the attorney's actions, so attorneys try to be careful about not providing formal legal advice without a formal engagement (sometimes providing an explicit "caveat" if they feel they might be getting too close to providing legal advice). If the attorney is employed by a corporation, they would likely be unable to take on such a representation due to the terms of their employment, and that is before getting to an exploration of conflict of interest issues. If the attorney is employed by a firm, the firm would have to sign off on the representation, again dealing with potential conflict issues.
Fifth, even if the above issues were all somehow resolved, it would be highly unlikely that any such attorney would provide substantial amounts of advice, written memos, counseling, etc. on a pro bono (unpaid) basis, especially given the time-consuming nature of the work. Pro bono advice and representation is generally accorded to individuals and entities that could not otherwise be able to pay for it. That is clearly not the case here, at least with ICANN taking financial responsibility. It would likely be very difficult to justify this to, e.g., a firm's pro bono committee, as a valid pro bono representation.
Sixth, if ICANN were not taking the role they are taking, it would be extremely difficult to identify the "client" in this situation. The "community" is a collection of sectors, mostly represented by various ICANN-created structures, which in turn have members of widely varying types (individuals, corporations, sovereigns, non-profits, IGOs, partnerships, etc.). This would also make it extremely difficult to enter into a formal counseling relationship with the "community."
Seventh, this is a sensitive, high-profile, transformative set of actions we are involved in, which is subject to an extraordinary amount of scrutiny, not least that of the NTIA and the US Congress. That eliminates any possibility of providing informal, off-the-cuff, reasonably well-informed but not quite expert, "non-advice" advice -- which might happen in a more obscure exercise. There's simply too much at stake.
Finally, I would say that a number of attorneys involved in one or both of the WGs are in fact providing a significant amount of legal knowledge and experience to the WGs, helping to frame issues, whether in terms of general leadership (e.g., Thomas, Leon, Becky) or more specifically in a "lawyer-as-client" capacity -- working with outside counsel, tackling the more legalistic issues, providing as much legal background and knowledge as possible without providing the type of formal legal advice that would tend to create an attorney-client relationship, etc. So I do think that many lawyers in the community are giving greatly of themselves in this process, even though they cannot and would not be able to formally be engaged by the community as its "counsel of record."
In sum, it might be a nice thought in theory, but it is no way a practical possibility.
Greg
On Sat, Jul 4, 2015 at 3:08 AM, CW Lists <lists@christopherwilkinson.eu <mailto:lists@christopherwilkinson.eu <lists@christopherwilkinson.eu>>> wrote:
Good morning:
I had decided not to enter this debate. But I am bound to say that the thought had occurred to me at the time, that there were more than enough qualified lawyers in this community that they could perfectly well have counselled … themselves.
CW
On 04 Jul 2015, at 08:41, Greg Shatan <gregshatanipc@gmail.com <mailto:gregshatanipc@gmail.com <gregshatanipc@gmail.com>>> wrote:
Wolfgang,
To your first point, the billing rates were clearly stated in the law firms' engagement letters.
To your second point, I'm sure we could all think of other projects and goals where the money could have been "better spent." You've stated yours. But that is not the proper test. This was and continues to be money we need to spend to achieve the goals we have set. Under different circumstances, perhaps it would be a different amount (or maybe none at all). But it was strongly felt at the outset that the group needed to have independent counsel. Clearly that counsel needed to have recognized expertise in the appropriate legal areas. As such, I believe we made excellent choices and have been very well represented.
As to your "better spent" test, I just had to have $4000.00 worth of emergency dental work done. This money definitely could have been "better spent" on a nice vacation, redecorating our living room or on donations to my favored charitable causes. But I had no choice, other than to choose which dentist and endodontist I went to, and I wasn't going to cut corners -- the dental work was a necessity. Similarly, the legal work we are getting is a necessity and whether we would have preferred to spend the money elsewhere is not merely irrelevant, it is an incorrect and inappropriate proposition. Many of us are investing vast quantities of time that could be "better spent" elsewhere as well, but we are willing (grudgingly sometimes) to spend the time it takes to get it right, because we believe it needs to be done. This is the appropriate measure, whether it comes to our time or counsels' time. If we believe in this project, we have to invest in it, and do what it takes to succeed.
Of course, this investment has to be managed wisely and cost-effectively, and by and large, I believe the CCWG has done that reasonably well -- not perfectly, but reasonably well and with "course corrections" along the way intended to improve that management. It's certainly fair to ask, as Robin has done, for a better understanding of that management as we go along. But asserting that the money could have been "better spent" elsewhere sets up a false test that we should not use to evaluate this important aspect of our work. Instead, we need to focus on whether the money was "well spent" on these critical legal services. If you have reason to believe it was not, that could be useful to know. That would at least be the right discussion to have.
Greg
On Sat, Jul 4, 2015 at 1:13 AM, "Kleinwächter, Wolfgang" <wolfgang.kleinwaechter@medienkomm.uni-halle.de <mailto:wolfgang.kleinwaechter@medienkomm.uni-halle.de <wolfgang.kleinwaechter@medienkomm.uni-halle.de>>> wrote:
HI,
and please if you ask outside lawyers, ask for the price tag in advance. Some of the money spend fo lawyers could have been spend better to suppport and enable Internet user and non-commercial groups in developing countries.
Wolfgang
-----Ursprüngliche Nachricht----- Von: accountability-cross-community-bounces@icann.org < mailto:accountability-cross-community-bounces@icann.org <accountability-cross-community-bounces@icann.org>> im Auftrag von Robin Gross Gesendet: Fr 03.07.2015 14:57 An: accountability-cross-community@icann.org <mailto:accountability-cross-community@icann.org <accountability-cross-community@icann.org>> Community Betreff: [CCWG-ACCT] Who is managing the lawyers and what have they beenasked to do?
After the legal sub-team was disbanded, I haven't been able to follow what communications are happening with CCWG and the independent lawyers we retained.
I understand the lawyers are currently "working on the various models" and will present something to us regarding that work soon. However, *what exactly* have the lawyers been asked to do and *who* asked them? If there are written instructions, may the group please see them? Who is now taking on the role of managing the outside attorneys for this group, including providing instructions and certifying legal work?
Sorry, but I'm really trying to understand what is happening, and there doesn't seem to be much information in the public on this (or if there is, I can't find it). Thanks for any information anyone can provide.
Best, Robin
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Hi, I agree. I hate the fact that there may be a better recipe out there and that we don't know what it is. avri On 06-Jul-15 09:38, Jordan Carter wrote:
Well, I would really really like to see what the creative thinking they have done has suggested. I trust our ability as a group to make decisions, and do not believe we should cut off input from any direction...
Jordan
On 7 July 2015 at 01:13, James Gannon <james@cyberinvasion.net <mailto:james@cyberinvasion.net>> wrote:
Hey Avri,
Yes the 3rd model was brought up, and the lawyers feel that it might be a cleaner way for us to get the powers that we need. But without a call from the CCWG to present it they feel that its not their position to propose a model on their own initiative.
Personally i would like to see what they have come up with but the CCWG would need to ask as an overall group for the chairs to direct them to give some more information on the model if we wanted it. I think if after we hear from them on Tuesdays call we still feel we might have some shortcomings that it might be the time to ask them about the 3rd option.
Also +1 I think they are really enjoying the work and are finding themselves getting more and more involved as we go on, which is great for the CCWG as the more background and details they know the better that are able to give us solid well reasoned advice in my opinion.
-James
On 6 Jul 2015, at 13:19, Avri Doria <avri@acm.org <mailto:avri@acm.org>> wrote:
Hi,
I have not had a chance to get back to the recording of the call. Not sure I will, that time was the time I had for that call and that is why i was listening then.
In any case, the lawyers were talking about a new model they had come up with, but not knowing what to do about it since they had not been asked for a new model.
I was told to leave before I got to hear the end of that story. Or about the model itself. Anyone who has had a chance to listen, whatever happened?
avri
ps. sometimes i think the lawyers are getting interested in what we are doing, almost like stakeholders. not that i expect them to give up their hourly rates because they are stakeholders.
On 06-Jul-15 05:07, James Gannon wrote:
I listened to the last co-chairs lawyers’ call at; https://community.icann.org/pages/viewpage.action?pageId=53782602 (I’m a glutton for punishment)
It was a short call and I’ll make a particular note that Leon and Mathieu made a point of not making any decisions on behalf of the whole group and made it clear anything requiring a decision must be made by the overall CCWG, so I was happy with that side of things myself, most of my own fears about not having a sub-group are somewhat assuaged.
So my paraphrasing and overview is:
· Lawyers working hard on the models for us collaboratively between the two firms since BA
· Lawyers are prepping a presentation to give to us ASAP before Paris if possible, that presentation will take the majority of a call, it can’t be done quickly, they need about 45mins uninterrupted to go through the presentation and then would likely need Q&A time after they present.
· Some small wording/clarifications to come back to the CCWG to make sure everyone’s on the same page
· Everyone feels Paris will be an important time for the models, lawyers will be ready for a grilling on the details of the models from us to flesh out any of our concerns/questions
Note that the above is all my very condensed overview of the conversations.
It seemed like a productive call to me.
-James
*From:*accountability-cross-community-bounces@icann.org <mailto:accountability-cross-community-bounces@icann.org> [mailto:accountability-cross-community-bounces@icann.org <mailto:accountability-cross-community-bounces@icann.org>] *On Behalf Of *Greg Shatan *Sent:* Monday, July 06, 2015 5:33 AM *To:* Carlos Raul *Cc:* accountability-cross-community@icann.org <mailto:accountability-cross-community@icann.org> *Subject:* Re: [CCWG-ACCT] Who is managing the lawyers and what have they beenasked to do?
Carlos,
As the legal sub-team was disbanded, your guess is as good as mine.....
Greg
On Mon, Jul 6, 2015 at 12:27 AM, Carlos Raul <carlosraulg@gmail.com <mailto:carlosraulg@gmail.com> <mailto:carlosraulg@gmail.com>> wrote:
Thank you Greg!
It makes a lot of sense and I guess those are all good reasons as we hired them in the first place. What are the next steps now? What happened in the recent call?
Best regards
Carlos Raúl Gutiérrez
+506 8837 7176 <tel:%2B506%208837%207176> <tel:%2B506%208837%207176>
Skype carlos.raulg
_________
Apartado 1571-1000
*COSTA RICA*
On Mon, Jul 6, 2015 at 12:02 AM, Greg Shatan <gregshatanipc@gmail.com <mailto:gregshatanipc@gmail.com> <mailto:gregshatanipc@gmail.com>> wrote:
Chris,
That was tried to some extent, at least in the CWG.
There are several substantial problems with that approach.
First, lawyers are not fungible. The particular legal skills, background and experience required for the issues before both WGs are fairly specific, and in some cases, very specific. The primary core competency needed here is corporate governance. While a number of lawyers in the community have a reasonable working knowledge of the area, at least in their home jurisdictions, I don't believe there are any who would say that this is their primary focus and expertise -- at least none who identified themselves to either WG. The second core competency required, especially in the CCWG, is non-profit law. Again there are a number of lawyers with a decent working knowledge of this fairly broad field, but not as a primary focus. There may be a couple of lawyers in the community who would claim this fairly broad field as a primary focus and expertise -- but none who became involved with either WG. This then becomes further narrowed by jurisdiction. Since ICANN is a California non-profit corporation, US corporate governance and non-profit experience is more relevant than experience from other jurisdictions, and California law corporate governance and non-profit experience is more relevant than that from other US jurisdictions. In my experience, the more a US lawyer focuses on a particular substantive area, the greater their knowledge of and comfort with state law issues in US state jurisdictions other than their own (e.g., someone who spend a majority of their time working in corporate governance will have a greater knowledge of the law, issues, approaches and trends outside their primary state of practice, while someone who spends a relatively small amount of time in the area will tend to feel less comfortable outside their home jurisdiction). (An exception is that many US lawyers have specific knowledge of certain Delaware corporate law issues, because Delaware often serves as the state of incorporation for entities operating elsewhere.)
Second, lawyers in the community will seldom be seen as neutral advisors, no matter how hard they try. They will tend to be seen as working from their point of view or stakeholder group or "special interest" or desired outcome, even if they are trying to be even-handed. Over the course of time, this balancing act would tend to become more untenable.
Third, the amount of time it would take to provide truly definitive legal advice (research, careful drafting, discussions with relevant "clients", etc.) would be prohibitive, even compared to the substantial amount of time it takes to provide reasonably well-informed and competent legal-based viewpoints in the course of either WG's work.
Fourth, in order to formally counsel the community, the lawyer or lawyers in question would have to enter into a formal attorney-client relationship. Under US law, an attorney-client relationship may inadvertently be created by the attorney's actions, so attorneys try to be careful about not providing formal legal advice without a formal engagement (sometimes providing an explicit "caveat" if they feel they might be getting too close to providing legal advice). If the attorney is employed by a corporation, they would likely be unable to take on such a representation due to the terms of their employment, and that is before getting to an exploration of conflict of interest issues. If the attorney is employed by a firm, the firm would have to sign off on the representation, again dealing with potential conflict issues.
Fifth, even if the above issues were all somehow resolved, it would be highly unlikely that any such attorney would provide substantial amounts of advice, written memos, counseling, etc. on a pro bono (unpaid) basis, especially given the time-consuming nature of the work. Pro bono advice and representation is generally accorded to individuals and entities that could not otherwise be able to pay for it. That is clearly not the case here, at least with ICANN taking financial responsibility. It would likely be very difficult to justify this to, e.g., a firm's pro bono committee, as a valid pro bono representation.
Sixth, if ICANN were not taking the role they are taking, it would be extremely difficult to identify the "client" in this situation. The "community" is a collection of sectors, mostly represented by various ICANN-created structures, which in turn have members of widely varying types (individuals, corporations, sovereigns, non-profits, IGOs, partnerships, etc.). This would also make it extremely difficult to enter into a formal counseling relationship with the "community."
Seventh, this is a sensitive, high-profile, transformative set of actions we are involved in, which is subject to an extraordinary amount of scrutiny, not least that of the NTIA and the US Congress. That eliminates any possibility of providing informal, off-the-cuff, reasonably well-informed but not quite expert, "non-advice" advice -- which might happen in a more obscure exercise. There's simply too much at stake.
Finally, I would say that a number of attorneys involved in one or both of the WGs are in fact providing a significant amount of legal knowledge and experience to the WGs, helping to frame issues, whether in terms of general leadership (e.g., Thomas, Leon, Becky) or more specifically in a "lawyer-as-client" capacity -- working with outside counsel, tackling the more legalistic issues, providing as much legal background and knowledge as possible without providing the type of formal legal advice that would tend to create an attorney-client relationship, etc. So I do think that many lawyers in the community are giving greatly of themselves in this process, even though they cannot and would not be able to formally be engaged by the community as its "counsel of record."
In sum, it might be a nice thought in theory, but it is no way a practical possibility.
Greg
On Sat, Jul 4, 2015 at 3:08 AM, CW Lists <lists@christopherwilkinson.eu <mailto:lists@christopherwilkinson.eu> <mailto:lists@christopherwilkinson.eu>> wrote:
Good morning:
I had decided not to enter this debate. But I am bound to say that the thought had occurred to me at the time, that there were more than enough qualified lawyers in this community that they could perfectly well have counselled … themselves.
CW
On 04 Jul 2015, at 08:41, Greg Shatan <gregshatanipc@gmail.com <mailto:gregshatanipc@gmail.com> <mailto:gregshatanipc@gmail.com>> wrote:
Wolfgang,
To your first point, the billing rates were clearly stated in the law firms' engagement letters.
To your second point, I'm sure we could all think of other projects and goals where the money could have been "better spent." You've stated yours. But that is not the proper test. This was and continues to be money we need to spend to achieve the goals we have set. Under different circumstances, perhaps it would be a different amount (or maybe none at all). But it was strongly felt at the outset that the group needed to have independent counsel. Clearly that counsel needed to have recognized expertise in the appropriate legal areas. As such, I believe we made excellent choices and have been very well represented.
As to your "better spent" test, I just had to have $4000.00 worth of emergency dental work done. This money definitely could have been "better spent" on a nice vacation, redecorating our living room or on donations to my favored charitable causes. But I had no choice, other than to choose which dentist and endodontist I went to, and I wasn't going to cut corners -- the dental work was a necessity. Similarly, the legal work we are getting is a necessity and whether we would have preferred to spend the money elsewhere is not merely irrelevant, it is an incorrect and inappropriate proposition. Many of us are investing vast quantities of time that could be "better spent" elsewhere as well, but we are willing (grudgingly sometimes) to spend the time it takes to get it right, because we believe it needs to be done. This is the appropriate measure, whether it comes to our time or counsels' time. If we believe in this project, we have to invest in it, and do what it takes to succeed.
Of course, this investment has to be managed wisely and cost-effectively, and by and large, I believe the CCWG has done that reasonably well -- not perfectly, but reasonably well and with "course corrections" along the way intended to improve that management. It's certainly fair to ask, as Robin has done, for a better understanding of that management as we go along. But asserting that the money could have been "better spent" elsewhere sets up a false test that we should not use to evaluate this important aspect of our work. Instead, we need to focus on whether the money was "well spent" on these critical legal services. If you have reason to believe it was not, that could be useful to know. That would at least be the right discussion to have.
Greg
On Sat, Jul 4, 2015 at 1:13 AM, "Kleinwächter, Wolfgang" <wolfgang.kleinwaechter@medienkomm.uni-halle.de <mailto:wolfgang.kleinwaechter@medienkomm.uni-halle.de> <mailto:wolfgang.kleinwaechter@medienkomm.uni-halle.de>> wrote:
HI,
and please if you ask outside lawyers, ask for the price tag in advance. Some of the money spend fo lawyers could have been spend better to suppport and enable Internet user and non-commercial groups in developing countries.
Wolfgang
-----Ursprüngliche Nachricht----- Von: accountability-cross-community-bounces@icann.org <mailto:accountability-cross-community-bounces@icann.org> <mailto:accountability-cross-community-bounces@icann.org> im Auftrag von Robin Gross Gesendet: Fr 03.07.2015 14:57 An: accountability-cross-community@icann.org <mailto:accountability-cross-community@icann.org> <mailto:accountability-cross-community@icann.org> Community Betreff: [CCWG-ACCT] Who is managing the lawyers and what have they beenasked to do?
After the legal sub-team was disbanded, I haven't been able to follow what communications are happening with CCWG and the independent lawyers we retained.
I understand the lawyers are currently "working on the various models" and will present something to us regarding that work soon. However, *what exactly* have the lawyers been asked to do and *who* asked them? If there are written instructions, may the group please see them? Who is now taking on the role of managing the outside attorneys for this group, including providing instructions and certifying legal work?
Sorry, but I'm really trying to understand what is happening, and there doesn't seem to be much information in the public on this (or if there is, I can't find it). Thanks for any information anyone can provide.
Best, Robin
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Greetings All, Speaking as a recovering lawyer and an experienced client, may I respectfully suggest that we actually ask our lawyers for their opinion rather than simply asking them to answer a series of direct questions. A "what would you do in our circumstances?" question will give them far more licence to be creative than "tell me how I can block the budget". Cheers, Chris Disspain | Chief Executive Officer .au Domain Administration Ltd T: +61 3 8341 4111 | F: +61 3 8341 4112 E: ceo@auda.org.au | W: www.auda.org.au auDA - Australia's Domain Name Administrator
On 7 Jul 2015, at 00:32, Avri Doria <avri@acm.org> wrote:
Hi,
I agree. I hate the fact that there may be a better recipe out there and that we don't know what it is.
avri
On 06-Jul-15 09:38, Jordan Carter wrote: Well, I would really really like to see what the creative thinking they have done has suggested. I trust our ability as a group to make decisions, and do not believe we should cut off input from any direction...
Jordan
On 7 July 2015 at 01:13, James Gannon <james@cyberinvasion.net <mailto:james@cyberinvasion.net>> wrote:
Hey Avri,
Yes the 3rd model was brought up, and the lawyers feel that it might be a cleaner way for us to get the powers that we need. But without a call from the CCWG to present it they feel that its not their position to propose a model on their own initiative.
Personally i would like to see what they have come up with but the CCWG would need to ask as an overall group for the chairs to direct them to give some more information on the model if we wanted it. I think if after we hear from them on Tuesdays call we still feel we might have some shortcomings that it might be the time to ask them about the 3rd option.
Also +1 I think they are really enjoying the work and are finding themselves getting more and more involved as we go on, which is great for the CCWG as the more background and details they know the better that are able to give us solid well reasoned advice in my opinion.
-James
On 6 Jul 2015, at 13:19, Avri Doria <avri@acm.org <mailto:avri@acm.org>> wrote:
Hi,
I have not had a chance to get back to the recording of the call. Not sure I will, that time was the time I had for that call and that is why i was listening then.
In any case, the lawyers were talking about a new model they had come up with, but not knowing what to do about it since they had not been asked for a new model.
I was told to leave before I got to hear the end of that story. Or about the model itself. Anyone who has had a chance to listen, whatever happened?
avri
ps. sometimes i think the lawyers are getting interested in what we are doing, almost like stakeholders. not that i expect them to give up their hourly rates because they are stakeholders.
On 06-Jul-15 05:07, James Gannon wrote:
I listened to the last co-chairs lawyers’ call at; https://community.icann.org/pages/viewpage.action?pageId=53782602 (I’m a glutton for punishment)
It was a short call and I’ll make a particular note that Leon and Mathieu made a point of not making any decisions on behalf of the whole group and made it clear anything requiring a decision must be made by the overall CCWG, so I was happy with that side of things myself, most of my own fears about not having a sub-group are somewhat assuaged.
So my paraphrasing and overview is:
· Lawyers working hard on the models for us collaboratively between the two firms since BA
· Lawyers are prepping a presentation to give to us ASAP before Paris if possible, that presentation will take the majority of a call, it can’t be done quickly, they need about 45mins uninterrupted to go through the presentation and then would likely need Q&A time after they present.
· Some small wording/clarifications to come back to the CCWG to make sure everyone’s on the same page
· Everyone feels Paris will be an important time for the models, lawyers will be ready for a grilling on the details of the models from us to flesh out any of our concerns/questions
Note that the above is all my very condensed overview of the conversations.
It seemed like a productive call to me.
-James
*From:*accountability-cross-community-bounces@icann.org <mailto:accountability-cross-community-bounces@icann.org> [mailto:accountability-cross-community-bounces@icann.org <mailto:accountability-cross-community-bounces@icann.org>] *On Behalf Of *Greg Shatan *Sent:* Monday, July 06, 2015 5:33 AM *To:* Carlos Raul *Cc:* accountability-cross-community@icann.org <mailto:accountability-cross-community@icann.org> *Subject:* Re: [CCWG-ACCT] Who is managing the lawyers and what have they beenasked to do?
Carlos,
As the legal sub-team was disbanded, your guess is as good as mine.....
Greg
On Mon, Jul 6, 2015 at 12:27 AM, Carlos Raul <carlosraulg@gmail.com <mailto:carlosraulg@gmail.com> <mailto:carlosraulg@gmail.com>> wrote:
Thank you Greg!
It makes a lot of sense and I guess those are all good reasons as we hired them in the first place. What are the next steps now? What happened in the recent call?
Best regards
Carlos Raúl Gutiérrez
+506 8837 7176 <tel:%2B506%208837%207176> <tel:%2B506%208837%207176>
Skype carlos.raulg
_________
Apartado 1571-1000
*COSTA RICA*
On Mon, Jul 6, 2015 at 12:02 AM, Greg Shatan <gregshatanipc@gmail.com <mailto:gregshatanipc@gmail.com> <mailto:gregshatanipc@gmail.com>> wrote:
Chris,
That was tried to some extent, at least in the CWG.
There are several substantial problems with that approach.
First, lawyers are not fungible. The particular legal skills, background and experience required for the issues before both WGs are fairly specific, and in some cases, very specific. The primary core competency needed here is corporate governance. While a number of lawyers in the community have a reasonable working knowledge of the area, at least in their home jurisdictions, I don't believe there are any who would say that this is their primary focus and expertise -- at least none who identified themselves to either WG. The second core competency required, especially in the CCWG, is non-profit law. Again there are a number of lawyers with a decent working knowledge of this fairly broad field, but not as a primary focus. There may be a couple of lawyers in the community who would claim this fairly broad field as a primary focus and expertise -- but none who became involved with either WG. This then becomes further narrowed by jurisdiction. Since ICANN is a California non-profit corporation, US corporate governance and non-profit experience is more relevant than experience from other jurisdictions, and California law corporate governance and non-profit experience is more relevant than that from other US jurisdictions. In my experience, the more a US lawyer focuses on a particular substantive area, the greater their knowledge of and comfort with state law issues in US state jurisdictions other than their own (e.g., someone who spend a majority of their time working in corporate governance will have a greater knowledge of the law, issues, approaches and trends outside their primary state of practice, while someone who spends a relatively small amount of time in the area will tend to feel less comfortable outside their home jurisdiction). (An exception is that many US lawyers have specific knowledge of certain Delaware corporate law issues, because Delaware often serves as the state of incorporation for entities operating elsewhere.)
Second, lawyers in the community will seldom be seen as neutral advisors, no matter how hard they try. They will tend to be seen as working from their point of view or stakeholder group or "special interest" or desired outcome, even if they are trying to be even-handed. Over the course of time, this balancing act would tend to become more untenable.
Third, the amount of time it would take to provide truly definitive legal advice (research, careful drafting, discussions with relevant "clients", etc.) would be prohibitive, even compared to the substantial amount of time it takes to provide reasonably well-informed and competent legal-based viewpoints in the course of either WG's work.
Fourth, in order to formally counsel the community, the lawyer or lawyers in question would have to enter into a formal attorney-client relationship. Under US law, an attorney-client relationship may inadvertently be created by the attorney's actions, so attorneys try to be careful about not providing formal legal advice without a formal engagement (sometimes providing an explicit "caveat" if they feel they might be getting too close to providing legal advice). If the attorney is employed by a corporation, they would likely be unable to take on such a representation due to the terms of their employment, and that is before getting to an exploration of conflict of interest issues. If the attorney is employed by a firm, the firm would have to sign off on the representation, again dealing with potential conflict issues.
Fifth, even if the above issues were all somehow resolved, it would be highly unlikely that any such attorney would provide substantial amounts of advice, written memos, counseling, etc. on a pro bono (unpaid) basis, especially given the time-consuming nature of the work. Pro bono advice and representation is generally accorded to individuals and entities that could not otherwise be able to pay for it. That is clearly not the case here, at least with ICANN taking financial responsibility. It would likely be very difficult to justify this to, e.g., a firm's pro bono committee, as a valid pro bono representation.
Sixth, if ICANN were not taking the role they are taking, it would be extremely difficult to identify the "client" in this situation. The "community" is a collection of sectors, mostly represented by various ICANN-created structures, which in turn have members of widely varying types (individuals, corporations, sovereigns, non-profits, IGOs, partnerships, etc.). This would also make it extremely difficult to enter into a formal counseling relationship with the "community."
Seventh, this is a sensitive, high-profile, transformative set of actions we are involved in, which is subject to an extraordinary amount of scrutiny, not least that of the NTIA and the US Congress. That eliminates any possibility of providing informal, off-the-cuff, reasonably well-informed but not quite expert, "non-advice" advice -- which might happen in a more obscure exercise. There's simply too much at stake.
Finally, I would say that a number of attorneys involved in one or both of the WGs are in fact providing a significant amount of legal knowledge and experience to the WGs, helping to frame issues, whether in terms of general leadership (e.g., Thomas, Leon, Becky) or more specifically in a "lawyer-as-client" capacity -- working with outside counsel, tackling the more legalistic issues, providing as much legal background and knowledge as possible without providing the type of formal legal advice that would tend to create an attorney-client relationship, etc. So I do think that many lawyers in the community are giving greatly of themselves in this process, even though they cannot and would not be able to formally be engaged by the community as its "counsel of record."
In sum, it might be a nice thought in theory, but it is no way a practical possibility.
Greg
On Sat, Jul 4, 2015 at 3:08 AM, CW Lists <lists@christopherwilkinson.eu <mailto:lists@christopherwilkinson.eu> <mailto:lists@christopherwilkinson.eu>> wrote:
Good morning:
I had decided not to enter this debate. But I am bound to say that the thought had occurred to me at the time, that there were more than enough qualified lawyers in this community that they could perfectly well have counselled … themselves.
CW
On 04 Jul 2015, at 08:41, Greg Shatan <gregshatanipc@gmail.com <mailto:gregshatanipc@gmail.com> <mailto:gregshatanipc@gmail.com>> wrote:
Wolfgang,
To your first point, the billing rates were clearly stated in the law firms' engagement letters.
To your second point, I'm sure we could all think of other projects and goals where the money could have been "better spent." You've stated yours. But that is not the proper test. This was and continues to be money we need to spend to achieve the goals we have set. Under different circumstances, perhaps it would be a different amount (or maybe none at all). But it was strongly felt at the outset that the group needed to have independent counsel. Clearly that counsel needed to have recognized expertise in the appropriate legal areas. As such, I believe we made excellent choices and have been very well represented.
As to your "better spent" test, I just had to have $4000.00 worth of emergency dental work done. This money definitely could have been "better spent" on a nice vacation, redecorating our living room or on donations to my favored charitable causes. But I had no choice, other than to choose which dentist and endodontist I went to, and I wasn't going to cut corners -- the dental work was a necessity. Similarly, the legal work we are getting is a necessity and whether we would have preferred to spend the money elsewhere is not merely irrelevant, it is an incorrect and inappropriate proposition. Many of us are investing vast quantities of time that could be "better spent" elsewhere as well, but we are willing (grudgingly sometimes) to spend the time it takes to get it right, because we believe it needs to be done. This is the appropriate measure, whether it comes to our time or counsels' time. If we believe in this project, we have to invest in it, and do what it takes to succeed.
Of course, this investment has to be managed wisely and cost-effectively, and by and large, I believe the CCWG has done that reasonably well -- not perfectly, but reasonably well and with "course corrections" along the way intended to improve that management. It's certainly fair to ask, as Robin has done, for a better understanding of that management as we go along. But asserting that the money could have been "better spent" elsewhere sets up a false test that we should not use to evaluate this important aspect of our work. Instead, we need to focus on whether the money was "well spent" on these critical legal services. If you have reason to believe it was not, that could be useful to know. That would at least be the right discussion to have.
Greg
On Sat, Jul 4, 2015 at 1:13 AM, "Kleinwächter, Wolfgang" <wolfgang.kleinwaechter@medienkomm.uni-halle.de <mailto:wolfgang.kleinwaechter@medienkomm.uni-halle.de> <mailto:wolfgang.kleinwaechter@medienkomm.uni-halle.de>> wrote:
HI,
and please if you ask outside lawyers, ask for the price tag in advance. Some of the money spend fo lawyers could have been spend better to suppport and enable Internet user and non-commercial groups in developing countries.
Wolfgang
-----Ursprüngliche Nachricht----- Von: accountability-cross-community-bounces@icann.org <mailto:accountability-cross-community-bounces@icann.org> <mailto:accountability-cross-community-bounces@icann.org> im Auftrag von Robin Gross Gesendet: Fr 03.07.2015 14:57 An: accountability-cross-community@icann.org <mailto:accountability-cross-community@icann.org> <mailto:accountability-cross-community@icann.org> Community Betreff: [CCWG-ACCT] Who is managing the lawyers and what have they beenasked to do?
After the legal sub-team was disbanded, I haven't been able to follow what communications are happening with CCWG and the independent lawyers we retained.
I understand the lawyers are currently "working on the various models" and will present something to us regarding that work soon. However, *what exactly* have the lawyers been asked to do and *who* asked them? If there are written instructions, may the group please see them? Who is now taking on the role of managing the outside attorneys for this group, including providing instructions and certifying legal work?
Sorry, but I'm really trying to understand what is happening, and there doesn't seem to be much information in the public on this (or if there is, I can't find it). Thanks for any information anyone can provide.
Best, Robin
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/A better world through a better Internet /
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One of the questions that I often ask people in situations like this is, "what should I have asked you but didn't? In that spirit, I'd like to ask the lawyers the following: "You have been working with us now for several months, and you have a reasonable idea of what our goals are, even though we may differ to some extent on what they are exactly. Given that experience, if you were trying to solve for a structure that met our goals a understand you understand them, and you were able to start with a blank page, what approaches would you take and what questions would you ask? What would be your advice? Then, what would your answers be to the de novo questions that you had formulated using this approach?" Asking the wrong question generally gives you the wrong answer, or an answer that is misleading and not useful. I would like to hear the lawyers views on this approach in an open context, where there could be a back-and-forth discussion between people in the room and the lawyers. George On Jul 6, 2015, at 5:16 PM, Chris Disspain <ceo@auda.org.au> wrote:
Greetings All,
Speaking as a recovering lawyer and an experienced client, may I respectfully suggest that we actually ask our lawyers for their opinion rather than simply asking them to answer a series of direct questions. A "what would you do in our circumstances?" question will give them far more licence to be creative than "tell me how I can block the budget".
Cheers,
Chris Disspain | Chief Executive Officer .au Domain Administration Ltd T: +61 3 8341 4111 | F: +61 3 8341 4112 E: ceo@auda.org.au | W: www.auda.org.au
auDA - Australia's Domain Name Administrator
On 7 Jul 2015, at 00:32, Avri Doria <avri@acm.org> wrote:
Hi,
I agree. I hate the fact that there may be a better recipe out there and that we don't know what it is.
avri
On 06-Jul-15 09:38, Jordan Carter wrote: Well, I would really really like to see what the creative thinking they have done has suggested. I trust our ability as a group to make decisions, and do not believe we should cut off input from any direction...
Jordan
On 7 July 2015 at 01:13, James Gannon <james@cyberinvasion.net <mailto:james@cyberinvasion.net>> wrote:
Hey Avri,
Yes the 3rd model was brought up, and the lawyers feel that it might be a cleaner way for us to get the powers that we need. But without a call from the CCWG to present it they feel that its not their position to propose a model on their own initiative.
Personally i would like to see what they have come up with but the CCWG would need to ask as an overall group for the chairs to direct them to give some more information on the model if we wanted it. I think if after we hear from them on Tuesdays call we still feel we might have some shortcomings that it might be the time to ask them about the 3rd option.
Also +1 I think they are really enjoying the work and are finding themselves getting more and more involved as we go on, which is great for the CCWG as the more background and details they know the better that are able to give us solid well reasoned advice in my opinion.
-James
On 6 Jul 2015, at 13:19, Avri Doria <avri@acm.org <mailto:avri@acm.org>> wrote:
Hi,
I have not had a chance to get back to the recording of the call. Not sure I will, that time was the time I had for that call and that is why i was listening then.
In any case, the lawyers were talking about a new model they had come up with, but not knowing what to do about it since they had not been asked for a new model.
I was told to leave before I got to hear the end of that story. Or about the model itself. Anyone who has had a chance to listen, whatever happened?
avri
ps. sometimes i think the lawyers are getting interested in what we are doing, almost like stakeholders. not that i expect them to give up their hourly rates because they are stakeholders.
On 06-Jul-15 05:07, James Gannon wrote:
I listened to the last co-chairs lawyers’ call at; https://community.icann.org/pages/viewpage.action?pageId=53782602 (I’m a glutton for punishment)
It was a short call and I’ll make a particular note that Leon and Mathieu made a point of not making any decisions on behalf of the whole group and made it clear anything requiring a decision must be made by the overall CCWG, so I was happy with that side of things myself, most of my own fears about not having a sub-group are somewhat assuaged.
So my paraphrasing and overview is:
· Lawyers working hard on the models for us collaboratively between the two firms since BA
· Lawyers are prepping a presentation to give to us ASAP before Paris if possible, that presentation will take the majority of a call, it can’t be done quickly, they need about 45mins uninterrupted to go through the presentation and then would likely need Q&A time after they present.
· Some small wording/clarifications to come back to the CCWG to make sure everyone’s on the same page
· Everyone feels Paris will be an important time for the models, lawyers will be ready for a grilling on the details of the models from us to flesh out any of our concerns/questions
Note that the above is all my very condensed overview of the conversations.
It seemed like a productive call to me.
-James
*From:*accountability-cross-community-bounces@icann.org <mailto:accountability-cross-community-bounces@icann.org> [mailto:accountability-cross-community-bounces@icann.org <mailto:accountability-cross-community-bounces@icann.org>] *On Behalf Of *Greg Shatan *Sent:* Monday, July 06, 2015 5:33 AM *To:* Carlos Raul *Cc:* accountability-cross-community@icann.org <mailto:accountability-cross-community@icann.org> *Subject:* Re: [CCWG-ACCT] Who is managing the lawyers and what have they beenasked to do?
Carlos,
As the legal sub-team was disbanded, your guess is as good as mine.....
Greg
On Mon, Jul 6, 2015 at 12:27 AM, Carlos Raul <carlosraulg@gmail.com <mailto:carlosraulg@gmail.com> <mailto:carlosraulg@gmail.com>> wrote:
Thank you Greg!
It makes a lot of sense and I guess those are all good reasons as we hired them in the first place. What are the next steps now? What happened in the recent call?
Best regards
Carlos Raúl Gutiérrez
+506 8837 7176 <tel:%2B506%208837%207176> <tel:%2B506%208837%207176>
Skype carlos.raulg
_________
Apartado 1571-1000
*COSTA RICA*
On Mon, Jul 6, 2015 at 12:02 AM, Greg Shatan <gregshatanipc@gmail.com <mailto:gregshatanipc@gmail.com> <mailto:gregshatanipc@gmail.com>> wrote:
Chris,
That was tried to some extent, at least in the CWG.
There are several substantial problems with that approach.
First, lawyers are not fungible. The particular legal skills, background and experience required for the issues before both WGs are fairly specific, and in some cases, very specific. The primary core competency needed here is corporate governance. While a number of lawyers in the community have a reasonable working knowledge of the area, at least in their home jurisdictions, I don't believe there are any who would say that this is their primary focus and expertise -- at least none who identified themselves to either WG. The second core competency required, especially in the CCWG, is non-profit law. Again there are a number of lawyers with a decent working knowledge of this fairly broad field, but not as a primary focus. There may be a couple of lawyers in the community who would claim this fairly broad field as a primary focus and expertise -- but none who became involved with either WG. This then becomes further narrowed by jurisdiction. Since ICANN is a California non-profit corporation, US corporate governance and non-profit experience is more relevant than experience from other jurisdictions, and California law corporate governance and non-profit experience is more relevant than that from other US jurisdictions. In my experience, the more a US lawyer focuses on a particular substantive area, the greater their knowledge of and comfort with state law issues in US state jurisdictions other than their own (e.g., someone who spend a majority of their time working in corporate governance will have a greater knowledge of the law, issues, approaches and trends outside their primary state of practice, while someone who spends a relatively small amount of time in the area will tend to feel less comfortable outside their home jurisdiction). (An exception is that many US lawyers have specific knowledge of certain Delaware corporate law issues, because Delaware often serves as the state of incorporation for entities operating elsewhere.)
Second, lawyers in the community will seldom be seen as neutral advisors, no matter how hard they try. They will tend to be seen as working from their point of view or stakeholder group or "special interest" or desired outcome, even if they are trying to be even-handed. Over the course of time, this balancing act would tend to become more untenable.
Third, the amount of time it would take to provide truly definitive legal advice (research, careful drafting, discussions with relevant "clients", etc.) would be prohibitive, even compared to the substantial amount of time it takes to provide reasonably well-informed and competent legal-based viewpoints in the course of either WG's work.
Fourth, in order to formally counsel the community, the lawyer or lawyers in question would have to enter into a formal attorney-client relationship. Under US law, an attorney-client relationship may inadvertently be created by the attorney's actions, so attorneys try to be careful about not providing formal legal advice without a formal engagement (sometimes providing an explicit "caveat" if they feel they might be getting too close to providing legal advice). If the attorney is employed by a corporation, they would likely be unable to take on such a representation due to the terms of their employment, and that is before getting to an exploration of conflict of interest issues. If the attorney is employed by a firm, the firm would have to sign off on the representation, again dealing with potential conflict issues.
Fifth, even if the above issues were all somehow resolved, it would be highly unlikely that any such attorney would provide substantial amounts of advice, written memos, counseling, etc. on a pro bono (unpaid) basis, especially given the time-consuming nature of the work. Pro bono advice and representation is generally accorded to individuals and entities that could not otherwise be able to pay for it. That is clearly not the case here, at least with ICANN taking financial responsibility. It would likely be very difficult to justify this to, e.g., a firm's pro bono committee, as a valid pro bono representation.
Sixth, if ICANN were not taking the role they are taking, it would be extremely difficult to identify the "client" in this situation. The "community" is a collection of sectors, mostly represented by various ICANN-created structures, which in turn have members of widely varying types (individuals, corporations, sovereigns, non-profits, IGOs, partnerships, etc.). This would also make it extremely difficult to enter into a formal counseling relationship with the "community."
Seventh, this is a sensitive, high-profile, transformative set of actions we are involved in, which is subject to an extraordinary amount of scrutiny, not least that of the NTIA and the US Congress. That eliminates any possibility of providing informal, off-the-cuff, reasonably well-informed but not quite expert, "non-advice" advice -- which might happen in a more obscure exercise. There's simply too much at stake.
Finally, I would say that a number of attorneys involved in one or both of the WGs are in fact providing a significant amount of legal knowledge and experience to the WGs, helping to frame issues, whether in terms of general leadership (e.g., Thomas, Leon, Becky) or more specifically in a "lawyer-as-client" capacity -- working with outside counsel, tackling the more legalistic issues, providing as much legal background and knowledge as possible without providing the type of formal legal advice that would tend to create an attorney-client relationship, etc. So I do think that many lawyers in the community are giving greatly of themselves in this process, even though they cannot and would not be able to formally be engaged by the community as its "counsel of record."
In sum, it might be a nice thought in theory, but it is no way a practical possibility.
Greg
On Sat, Jul 4, 2015 at 3:08 AM, CW Lists <lists@christopherwilkinson.eu <mailto:lists@christopherwilkinson.eu> <mailto:lists@christopherwilkinson.eu>> wrote:
Good morning:
I had decided not to enter this debate. But I am bound to say that the thought had occurred to me at the time, that there were more than enough qualified lawyers in this community that they could perfectly well have counselled … themselves.
CW
On 04 Jul 2015, at 08:41, Greg Shatan <gregshatanipc@gmail.com <mailto:gregshatanipc@gmail.com> <mailto:gregshatanipc@gmail.com>> wrote:
Wolfgang,
To your first point, the billing rates were clearly stated in the law firms' engagement letters.
To your second point, I'm sure we could all think of other projects and goals where the money could have been "better spent." You've stated yours. But that is not the proper test. This was and continues to be money we need to spend to achieve the goals we have set. Under different circumstances, perhaps it would be a different amount (or maybe none at all). But it was strongly felt at the outset that the group needed to have independent counsel. Clearly that counsel needed to have recognized expertise in the appropriate legal areas. As such, I believe we made excellent choices and have been very well represented.
As to your "better spent" test, I just had to have $4000.00 worth of emergency dental work done. This money definitely could have been "better spent" on a nice vacation, redecorating our living room or on donations to my favored charitable causes. But I had no choice, other than to choose which dentist and endodontist I went to, and I wasn't going to cut corners -- the dental work was a necessity. Similarly, the legal work we are getting is a necessity and whether we would have preferred to spend the money elsewhere is not merely irrelevant, it is an incorrect and inappropriate proposition. Many of us are investing vast quantities of time that could be "better spent" elsewhere as well, but we are willing (grudgingly sometimes) to spend the time it takes to get it right, because we believe it needs to be done. This is the appropriate measure, whether it comes to our time or counsels' time. If we believe in this project, we have to invest in it, and do what it takes to succeed.
Of course, this investment has to be managed wisely and cost-effectively, and by and large, I believe the CCWG has done that reasonably well -- not perfectly, but reasonably well and with "course corrections" along the way intended to improve that management. It's certainly fair to ask, as Robin has done, for a better understanding of that management as we go along. But asserting that the money could have been "better spent" elsewhere sets up a false test that we should not use to evaluate this important aspect of our work. Instead, we need to focus on whether the money was "well spent" on these critical legal services. If you have reason to believe it was not, that could be useful to know. That would at least be the right discussion to have.
Greg
On Sat, Jul 4, 2015 at 1:13 AM, "Kleinwächter, Wolfgang" <wolfgang.kleinwaechter@medienkomm.uni-halle.de <mailto:wolfgang.kleinwaechter@medienkomm.uni-halle.de> <mailto:wolfgang.kleinwaechter@medienkomm.uni-halle.de>> wrote:
HI,
and please if you ask outside lawyers, ask for the price tag in advance. Some of the money spend fo lawyers could have been spend better to suppport and enable Internet user and non-commercial groups in developing countries.
Wolfgang
-----Ursprüngliche Nachricht----- Von: accountability-cross-community-bounces@icann.org <mailto:accountability-cross-community-bounces@icann.org> <mailto:accountability-cross-community-bounces@icann.org> im Auftrag von Robin Gross Gesendet: Fr 03.07.2015 14:57 An: accountability-cross-community@icann.org <mailto:accountability-cross-community@icann.org> <mailto:accountability-cross-community@icann.org> Community Betreff: [CCWG-ACCT] Who is managing the lawyers and what have they beenasked to do?
After the legal sub-team was disbanded, I haven't been able to follow what communications are happening with CCWG and the independent lawyers we retained.
I understand the lawyers are currently "working on the various models" and will present something to us regarding that work soon. However, *what exactly* have the lawyers been asked to do and *who* asked them? If there are written instructions, may the group please see them? Who is now taking on the role of managing the outside attorneys for this group, including providing instructions and certifying legal work?
Sorry, but I'm really trying to understand what is happening, and there doesn't seem to be much information in the public on this (or if there is, I can't find it). Thanks for any information anyone can provide.
Best, Robin
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I agree. We should have the benefit of their thoughts. Greg On Mon, Jul 6, 2015 at 9:38 AM, Jordan Carter <jordan@internetnz.net.nz> wrote:
Well, I would really really like to see what the creative thinking they have done has suggested. I trust our ability as a group to make decisions, and do not believe we should cut off input from any direction...
Jordan
On 7 July 2015 at 01:13, James Gannon <james@cyberinvasion.net> wrote:
Hey Avri,
Yes the 3rd model was brought up, and the lawyers feel that it might be a cleaner way for us to get the powers that we need. But without a call from the CCWG to present it they feel that its not their position to propose a model on their own initiative.
Personally i would like to see what they have come up with but the CCWG would need to ask as an overall group for the chairs to direct them to give some more information on the model if we wanted it. I think if after we hear from them on Tuesdays call we still feel we might have some shortcomings that it might be the time to ask them about the 3rd option.
Also +1 I think they are really enjoying the work and are finding themselves getting more and more involved as we go on, which is great for the CCWG as the more background and details they know the better that are able to give us solid well reasoned advice in my opinion.
-James
On 6 Jul 2015, at 13:19, Avri Doria <avri@acm.org> wrote:
Hi,
I have not had a chance to get back to the recording of the call. Not sure I will, that time was the time I had for that call and that is why i was listening then.
In any case, the lawyers were talking about a new model they had come up with, but not knowing what to do about it since they had not been asked for a new model.
I was told to leave before I got to hear the end of that story. Or about the model itself. Anyone who has had a chance to listen, whatever happened?
avri
ps. sometimes i think the lawyers are getting interested in what we are doing, almost like stakeholders. not that i expect them to give up their hourly rates because they are stakeholders.
On 06-Jul-15 05:07, James Gannon wrote:
I listened to the last co-chairs lawyers’ call at; https://community.icann.org/pages/viewpage.action?pageId=53782602 (I’m a glutton for punishment)
It was a short call and I’ll make a particular note that Leon and Mathieu made a point of not making any decisions on behalf of the whole group and made it clear anything requiring a decision must be made by the overall CCWG, so I was happy with that side of things myself, most of my own fears about not having a sub-group are somewhat assuaged.
So my paraphrasing and overview is:
· Lawyers working hard on the models for us collaboratively between the two firms since BA
· Lawyers are prepping a presentation to give to us ASAP before Paris if possible, that presentation will take the majority of a call, it can’t be done quickly, they need about 45mins uninterrupted to go through the presentation and then would likely need Q&A time after they present.
· Some small wording/clarifications to come back to the CCWG to make sure everyone’s on the same page
· Everyone feels Paris will be an important time for the models, lawyers will be ready for a grilling on the details of the models from us to flesh out any of our concerns/questions
Note that the above is all my very condensed overview of the conversations.
It seemed like a productive call to me.
-James
*From:*accountability-cross-community-bounces@icann.org [mailto:accountability-cross-community-bounces@icann.org] *On Behalf Of *Greg Shatan *Sent:* Monday, July 06, 2015 5:33 AM *To:* Carlos Raul *Cc:* accountability-cross-community@icann.org *Subject:* Re: [CCWG-ACCT] Who is managing the lawyers and what have they beenasked to do?
Carlos,
As the legal sub-team was disbanded, your guess is as good as mine.....
Greg
On Mon, Jul 6, 2015 at 12:27 AM, Carlos Raul <carlosraulg@gmail.com <mailto:carlosraulg@gmail.com <carlosraulg@gmail.com>>> wrote:
Thank you Greg!
It makes a lot of sense and I guess those are all good reasons as we hired them in the first place. What are the next steps now? What happened in the recent call?
Best regards
Carlos Raúl Gutiérrez
+506 8837 7176 <tel:%2B506%208837%207176>
Skype carlos.raulg
_________
Apartado 1571-1000
*COSTA RICA*
On Mon, Jul 6, 2015 at 12:02 AM, Greg Shatan <gregshatanipc@gmail.com <mailto:gregshatanipc@gmail.com <gregshatanipc@gmail.com>>> wrote:
Chris,
That was tried to some extent, at least in the CWG.
There are several substantial problems with that approach.
First, lawyers are not fungible. The particular legal skills, background and experience required for the issues before both WGs are fairly specific, and in some cases, very specific. The primary core competency needed here is corporate governance. While a number of lawyers in the community have a reasonable working knowledge of the area, at least in their home jurisdictions, I don't believe there are any who would say that this is their primary focus and expertise -- at least none who identified themselves to either WG. The second core competency required, especially in the CCWG, is non-profit law. Again there are a number of lawyers with a decent working knowledge of this fairly broad field, but not as a primary focus. There may be a couple of lawyers in the community who would claim this fairly broad field as a primary focus and expertise -- but none who became involved with either WG. This then becomes further narrowed by jurisdiction. Since ICANN is a California non-profit corporation, US corporate governance and non-profit experience is more relevant than experience from other jurisdictions, and California law corporate governance and non-profit experience is more relevant than that from other US jurisdictions. In my experience, the more a US lawyer focuses on a particular substantive area, the greater their knowledge of and comfort with state law issues in US state jurisdictions other than their own (e.g., someone who spend a majority of their time working in corporate governance will have a greater knowledge of the law, issues, approaches and trends outside their primary state of practice, while someone who spends a relatively small amount of time in the area will tend to feel less comfortable outside their home jurisdiction). (An exception is that many US lawyers have specific knowledge of certain Delaware corporate law issues, because Delaware often serves as the state of incorporation for entities operating elsewhere.)
Second, lawyers in the community will seldom be seen as neutral advisors, no matter how hard they try. They will tend to be seen as working from their point of view or stakeholder group or "special interest" or desired outcome, even if they are trying to be even-handed. Over the course of time, this balancing act would tend to become more untenable.
Third, the amount of time it would take to provide truly definitive legal advice (research, careful drafting, discussions with relevant "clients", etc.) would be prohibitive, even compared to the substantial amount of time it takes to provide reasonably well-informed and competent legal-based viewpoints in the course of either WG's work.
Fourth, in order to formally counsel the community, the lawyer or lawyers in question would have to enter into a formal attorney-client relationship. Under US law, an attorney-client relationship may inadvertently be created by the attorney's actions, so attorneys try to be careful about not providing formal legal advice without a formal engagement (sometimes providing an explicit "caveat" if they feel they might be getting too close to providing legal advice). If the attorney is employed by a corporation, they would likely be unable to take on such a representation due to the terms of their employment, and that is before getting to an exploration of conflict of interest issues. If the attorney is employed by a firm, the firm would have to sign off on the representation, again dealing with potential conflict issues.
Fifth, even if the above issues were all somehow resolved, it would be highly unlikely that any such attorney would provide substantial amounts of advice, written memos, counseling, etc. on a pro bono (unpaid) basis, especially given the time-consuming nature of the work. Pro bono advice and representation is generally accorded to individuals and entities that could not otherwise be able to pay for it. That is clearly not the case here, at least with ICANN taking financial responsibility. It would likely be very difficult to justify this to, e.g., a firm's pro bono committee, as a valid pro bono representation.
Sixth, if ICANN were not taking the role they are taking, it would be extremely difficult to identify the "client" in this situation. The "community" is a collection of sectors, mostly represented by various ICANN-created structures, which in turn have members of widely varying types (individuals, corporations, sovereigns, non-profits, IGOs, partnerships, etc.). This would also make it extremely difficult to enter into a formal counseling relationship with the "community."
Seventh, this is a sensitive, high-profile, transformative set of actions we are involved in, which is subject to an extraordinary amount of scrutiny, not least that of the NTIA and the US Congress. That eliminates any possibility of providing informal, off-the-cuff, reasonably well-informed but not quite expert, "non-advice" advice -- which might happen in a more obscure exercise. There's simply too much at stake.
Finally, I would say that a number of attorneys involved in one or both of the WGs are in fact providing a significant amount of legal knowledge and experience to the WGs, helping to frame issues, whether in terms of general leadership (e.g., Thomas, Leon, Becky) or more specifically in a "lawyer-as-client" capacity -- working with outside counsel, tackling the more legalistic issues, providing as much legal background and knowledge as possible without providing the type of formal legal advice that would tend to create an attorney-client relationship, etc. So I do think that many lawyers in the community are giving greatly of themselves in this process, even though they cannot and would not be able to formally be engaged by the community as its "counsel of record."
In sum, it might be a nice thought in theory, but it is no way a practical possibility.
Greg
On Sat, Jul 4, 2015 at 3:08 AM, CW Lists <lists@christopherwilkinson.eu <mailto:lists@christopherwilkinson.eu <lists@christopherwilkinson.eu>>> wrote:
Good morning:
I had decided not to enter this debate. But I am bound to say that the thought had occurred to me at the time, that there were more than enough qualified lawyers in this community that they could perfectly well have counselled … themselves.
CW
On 04 Jul 2015, at 08:41, Greg Shatan <gregshatanipc@gmail.com <mailto:gregshatanipc@gmail.com <gregshatanipc@gmail.com>>> wrote:
Wolfgang,
To your first point, the billing rates were clearly stated in the law firms' engagement letters.
To your second point, I'm sure we could all think of other projects and goals where the money could have been "better spent." You've stated yours. But that is not the proper test. This was and continues to be money we need to spend to achieve the goals we have set. Under different circumstances, perhaps it would be a different amount (or maybe none at all). But it was strongly felt at the outset that the group needed to have independent counsel. Clearly that counsel needed to have recognized expertise in the appropriate legal areas. As such, I believe we made excellent choices and have been very well represented.
As to your "better spent" test, I just had to have $4000.00 worth of emergency dental work done. This money definitely could have been "better spent" on a nice vacation, redecorating our living room or on donations to my favored charitable causes. But I had no choice, other than to choose which dentist and endodontist I went to, and I wasn't going to cut corners -- the dental work was a necessity. Similarly, the legal work we are getting is a necessity and whether we would have preferred to spend the money elsewhere is not merely irrelevant, it is an incorrect and inappropriate proposition. Many of us are investing vast quantities of time that could be "better spent" elsewhere as well, but we are willing (grudgingly sometimes) to spend the time it takes to get it right, because we believe it needs to be done. This is the appropriate measure, whether it comes to our time or counsels' time. If we believe in this project, we have to invest in it, and do what it takes to succeed.
Of course, this investment has to be managed wisely and cost-effectively, and by and large, I believe the CCWG has done that reasonably well -- not perfectly, but reasonably well and with "course corrections" along the way intended to improve that management. It's certainly fair to ask, as Robin has done, for a better understanding of that management as we go along. But asserting that the money could have been "better spent" elsewhere sets up a false test that we should not use to evaluate this important aspect of our work. Instead, we need to focus on whether the money was "well spent" on these critical legal services. If you have reason to believe it was not, that could be useful to know. That would at least be the right discussion to have.
Greg
On Sat, Jul 4, 2015 at 1:13 AM, "Kleinwächter, Wolfgang" <wolfgang.kleinwaechter@medienkomm.uni-halle.de <mailto:wolfgang.kleinwaechter@medienkomm.uni-halle.de <wolfgang.kleinwaechter@medienkomm.uni-halle.de>>> wrote:
HI,
and please if you ask outside lawyers, ask for the price tag in advance. Some of the money spend fo lawyers could have been spend better to suppport and enable Internet user and non-commercial groups in developing countries.
Wolfgang
-----Ursprüngliche Nachricht----- Von: accountability-cross-community-bounces@icann.org < mailto:accountability-cross-community-bounces@icann.org <accountability-cross-community-bounces@icann.org>> im Auftrag von Robin Gross Gesendet: Fr 03.07.2015 14:57 An: accountability-cross-community@icann.org <mailto:accountability-cross-community@icann.org <accountability-cross-community@icann.org>> Community Betreff: [CCWG-ACCT] Who is managing the lawyers and what have they beenasked to do?
After the legal sub-team was disbanded, I haven't been able to follow what communications are happening with CCWG and the independent lawyers we retained.
I understand the lawyers are currently "working on the various models" and will present something to us regarding that work soon. However, *what exactly* have the lawyers been asked to do and *who* asked them? If there are written instructions, may the group please see them? Who is now taking on the role of managing the outside attorneys for this group, including providing instructions and certifying legal work?
Sorry, but I'm really trying to understand what is happening, and there doesn't seem to be much information in the public on this (or if there is, I can't find it). Thanks for any information anyone can provide.
Best, Robin
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-- Jordan Carter
Chief Executive *InternetNZ*
04 495 2118 (office) | +64 21 442 649 (mob) jordan@internetnz.net.nz Skype: jordancarter
*A better world through a better Internet *
_______________________________________________ Accountability-Cross-Community mailing list Accountability-Cross-Community@icann.org https://mm.icann.org/mailman/listinfo/accountability-cross-community
I would also like to hear what they propose at this stage. I really don't see how it could hurt to have another proposal to consider. Larry Strickling did say he wanted us to be sure we examined all the options carefully. Thanks, Robin On Jul 6, 2015, at 7:32 AM, Greg Shatan wrote:
I agree. We should have the benefit of their thoughts.
Greg
On Mon, Jul 6, 2015 at 9:38 AM, Jordan Carter <jordan@internetnz.net.nz> wrote: Well, I would really really like to see what the creative thinking they have done has suggested. I trust our ability as a group to make decisions, and do not believe we should cut off input from any direction...
Jordan
On 7 July 2015 at 01:13, James Gannon <james@cyberinvasion.net> wrote: Hey Avri,
Yes the 3rd model was brought up, and the lawyers feel that it might be a cleaner way for us to get the powers that we need. But without a call from the CCWG to present it they feel that its not their position to propose a model on their own initiative.
Personally i would like to see what they have come up with but the CCWG would need to ask as an overall group for the chairs to direct them to give some more information on the model if we wanted it. I think if after we hear from them on Tuesdays call we still feel we might have some shortcomings that it might be the time to ask them about the 3rd option.
Also +1 I think they are really enjoying the work and are finding themselves getting more and more involved as we go on, which is great for the CCWG as the more background and details they know the better that are able to give us solid well reasoned advice in my opinion.
-James
On 6 Jul 2015, at 13:19, Avri Doria <avri@acm.org> wrote:
Hi,
I have not had a chance to get back to the recording of the call. Not sure I will, that time was the time I had for that call and that is why i was listening then.
In any case, the lawyers were talking about a new model they had come up with, but not knowing what to do about it since they had not been asked for a new model.
I was told to leave before I got to hear the end of that story. Or about the model itself. Anyone who has had a chance to listen, whatever happened?
avri
ps. sometimes i think the lawyers are getting interested in what we are doing, almost like stakeholders. not that i expect them to give up their hourly rates because they are stakeholders.
On 06-Jul-15 05:07, James Gannon wrote:
I listened to the last co-chairs lawyers’ call at; https://community.icann.org/pages/viewpage.action?pageId=53782602 (I’m a glutton for punishment)
It was a short call and I’ll make a particular note that Leon and Mathieu made a point of not making any decisions on behalf of the whole group and made it clear anything requiring a decision must be made by the overall CCWG, so I was happy with that side of things myself, most of my own fears about not having a sub-group are somewhat assuaged.
So my paraphrasing and overview is:
· Lawyers working hard on the models for us collaboratively between the two firms since BA
· Lawyers are prepping a presentation to give to us ASAP before Paris if possible, that presentation will take the majority of a call, it can’t be done quickly, they need about 45mins uninterrupted to go through the presentation and then would likely need Q&A time after they present.
· Some small wording/clarifications to come back to the CCWG to make sure everyone’s on the same page
· Everyone feels Paris will be an important time for the models, lawyers will be ready for a grilling on the details of the models from us to flesh out any of our concerns/questions
Note that the above is all my very condensed overview of the conversations.
It seemed like a productive call to me.
-James
*From:*accountability-cross-community-bounces@icann.org [mailto:accountability-cross-community-bounces@icann.org] *On Behalf Of *Greg Shatan *Sent:* Monday, July 06, 2015 5:33 AM *To:* Carlos Raul *Cc:* accountability-cross-community@icann.org *Subject:* Re: [CCWG-ACCT] Who is managing the lawyers and what have they beenasked to do?
Carlos,
As the legal sub-team was disbanded, your guess is as good as mine.....
Greg
On Mon, Jul 6, 2015 at 12:27 AM, Carlos Raul <carlosraulg@gmail.com <mailto:carlosraulg@gmail.com>> wrote:
Thank you Greg!
It makes a lot of sense and I guess those are all good reasons as we hired them in the first place. What are the next steps now? What happened in the recent call?
Best regards
Carlos Raúl Gutiérrez
+506 8837 7176 <tel:%2B506%208837%207176>
Skype carlos.raulg
_________
Apartado 1571-1000
*COSTA RICA*
On Mon, Jul 6, 2015 at 12:02 AM, Greg Shatan <gregshatanipc@gmail.com <mailto:gregshatanipc@gmail.com>> wrote:
Chris,
That was tried to some extent, at least in the CWG.
There are several substantial problems with that approach.
First, lawyers are not fungible. The particular legal skills, background and experience required for the issues before both WGs are fairly specific, and in some cases, very specific. The primary core competency needed here is corporate governance. While a number of lawyers in the community have a reasonable working knowledge of the area, at least in their home jurisdictions, I don't believe there are any who would say that this is their primary focus and expertise -- at least none who identified themselves to either WG. The second core competency required, especially in the CCWG, is non-profit law. Again there are a number of lawyers with a decent working knowledge of this fairly broad field, but not as a primary focus. There may be a couple of lawyers in the community who would claim this fairly broad field as a primary focus and expertise -- but none who became involved with either WG. This then becomes further narrowed by jurisdiction. Since ICANN is a California non-profit corporation, US corporate governance and non-profit experience is more relevant than experience from other jurisdictions, and California law corporate governance and non-profit experience is more relevant than that from other US jurisdictions. In my experience, the more a US lawyer focuses on a particular substantive area, the greater their knowledge of and comfort with state law issues in US state jurisdictions other than their own (e.g., someone who spend a majority of their time working in corporate governance will have a greater knowledge of the law, issues, approaches and trends outside their primary state of practice, while someone who spends a relatively small amount of time in the area will tend to feel less comfortable outside their home jurisdiction). (An exception is that many US lawyers have specific knowledge of certain Delaware corporate law issues, because Delaware often serves as the state of incorporation for entities operating elsewhere.)
Second, lawyers in the community will seldom be seen as neutral advisors, no matter how hard they try. They will tend to be seen as working from their point of view or stakeholder group or "special interest" or desired outcome, even if they are trying to be even-handed. Over the course of time, this balancing act would tend to become more untenable.
Third, the amount of time it would take to provide truly definitive legal advice (research, careful drafting, discussions with relevant "clients", etc.) would be prohibitive, even compared to the substantial amount of time it takes to provide reasonably well-informed and competent legal-based viewpoints in the course of either WG's work.
Fourth, in order to formally counsel the community, the lawyer or lawyers in question would have to enter into a formal attorney-client relationship. Under US law, an attorney-client relationship may inadvertently be created by the attorney's actions, so attorneys try to be careful about not providing formal legal advice without a formal engagement (sometimes providing an explicit "caveat" if they feel they might be getting too close to providing legal advice). If the attorney is employed by a corporation, they would likely be unable to take on such a representation due to the terms of their employment, and that is before getting to an exploration of conflict of interest issues. If the attorney is employed by a firm, the firm would have to sign off on the representation, again dealing with potential conflict issues.
Fifth, even if the above issues were all somehow resolved, it would be highly unlikely that any such attorney would provide substantial amounts of advice, written memos, counseling, etc. on a pro bono (unpaid) basis, especially given the time-consuming nature of the work. Pro bono advice and representation is generally accorded to individuals and entities that could not otherwise be able to pay for it. That is clearly not the case here, at least with ICANN taking financial responsibility. It would likely be very difficult to justify this to, e.g., a firm's pro bono committee, as a valid pro bono representation.
Sixth, if ICANN were not taking the role they are taking, it would be extremely difficult to identify the "client" in this situation. The "community" is a collection of sectors, mostly represented by various ICANN-created structures, which in turn have members of widely varying types (individuals, corporations, sovereigns, non-profits, IGOs, partnerships, etc.). This would also make it extremely difficult to enter into a formal counseling relationship with the "community."
Seventh, this is a sensitive, high-profile, transformative set of actions we are involved in, which is subject to an extraordinary amount of scrutiny, not least that of the NTIA and the US Congress. That eliminates any possibility of providing informal, off-the-cuff, reasonably well-informed but not quite expert, "non-advice" advice -- which might happen in a more obscure exercise. There's simply too much at stake.
Finally, I would say that a number of attorneys involved in one or both of the WGs are in fact providing a significant amount of legal knowledge and experience to the WGs, helping to frame issues, whether in terms of general leadership (e.g., Thomas, Leon, Becky) or more specifically in a "lawyer-as-client" capacity -- working with outside counsel, tackling the more legalistic issues, providing as much legal background and knowledge as possible without providing the type of formal legal advice that would tend to create an attorney-client relationship, etc. So I do think that many lawyers in the community are giving greatly of themselves in this process, even though they cannot and would not be able to formally be engaged by the community as its "counsel of record."
In sum, it might be a nice thought in theory, but it is no way a practical possibility.
Greg
On Sat, Jul 4, 2015 at 3:08 AM, CW Lists <lists@christopherwilkinson.eu <mailto:lists@christopherwilkinson.eu>> wrote:
Good morning:
I had decided not to enter this debate. But I am bound to say that the thought had occurred to me at the time, that there were more than enough qualified lawyers in this community that they could perfectly well have counselled … themselves.
CW
On 04 Jul 2015, at 08:41, Greg Shatan <gregshatanipc@gmail.com <mailto:gregshatanipc@gmail.com>> wrote:
Wolfgang,
To your first point, the billing rates were clearly stated in the law firms' engagement letters.
To your second point, I'm sure we could all think of other projects and goals where the money could have been "better spent." You've stated yours. But that is not the proper test. This was and continues to be money we need to spend to achieve the goals we have set. Under different circumstances, perhaps it would be a different amount (or maybe none at all). But it was strongly felt at the outset that the group needed to have independent counsel. Clearly that counsel needed to have recognized expertise in the appropriate legal areas. As such, I believe we made excellent choices and have been very well represented.
As to your "better spent" test, I just had to have $4000.00 worth of emergency dental work done. This money definitely could have been "better spent" on a nice vacation, redecorating our living room or on donations to my favored charitable causes. But I had no choice, other than to choose which dentist and endodontist I went to, and I wasn't going to cut corners -- the dental work was a necessity. Similarly, the legal work we are getting is a necessity and whether we would have preferred to spend the money elsewhere is not merely irrelevant, it is an incorrect and inappropriate proposition. Many of us are investing vast quantities of time that could be "better spent" elsewhere as well, but we are willing (grudgingly sometimes) to spend the time it takes to get it right, because we believe it needs to be done. This is the appropriate measure, whether it comes to our time or counsels' time. If we believe in this project, we have to invest in it, and do what it takes to succeed.
Of course, this investment has to be managed wisely and cost-effectively, and by and large, I believe the CCWG has done that reasonably well -- not perfectly, but reasonably well and with "course corrections" along the way intended to improve that management. It's certainly fair to ask, as Robin has done, for a better understanding of that management as we go along. But asserting that the money could have been "better spent" elsewhere sets up a false test that we should not use to evaluate this important aspect of our work. Instead, we need to focus on whether the money was "well spent" on these critical legal services. If you have reason to believe it was not, that could be useful to know. That would at least be the right discussion to have.
Greg
On Sat, Jul 4, 2015 at 1:13 AM, "Kleinwächter, Wolfgang" <wolfgang.kleinwaechter@medienkomm.uni-halle.de <mailto:wolfgang.kleinwaechter@medienkomm.uni-halle.de>> wrote:
HI,
and please if you ask outside lawyers, ask for the price tag in advance. Some of the money spend fo lawyers could have been spend better to suppport and enable Internet user and non-commercial groups in developing countries.
Wolfgang
-----Ursprüngliche Nachricht----- Von: accountability-cross-community-bounces@icann.org <mailto:accountability-cross-community-bounces@icann.org> im Auftrag von Robin Gross Gesendet: Fr 03.07.2015 14:57 An: accountability-cross-community@icann.org <mailto:accountability-cross-community@icann.org> Community Betreff: [CCWG-ACCT] Who is managing the lawyers and what have they beenasked to do?
After the legal sub-team was disbanded, I haven't been able to follow what communications are happening with CCWG and the independent lawyers we retained.
I understand the lawyers are currently "working on the various models" and will present something to us regarding that work soon. However, *what exactly* have the lawyers been asked to do and *who* asked them? If there are written instructions, may the group please see them? Who is now taking on the role of managing the outside attorneys for this group, including providing instructions and certifying legal work?
Sorry, but I'm really trying to understand what is happening, and there doesn't seem to be much information in the public on this (or if there is, I can't find it). Thanks for any information anyone can provide.
Best, Robin
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-- Jordan Carter
Chief Executive InternetNZ
04 495 2118 (office) | +64 21 442 649 (mob) jordan@internetnz.net.nz Skype: jordancarter
A better world through a better Internet
_______________________________________________ Accountability-Cross-Community mailing list Accountability-Cross-Community@icann.org https://mm.icann.org/mailman/listinfo/accountability-cross-community
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Hi, I have no problem with having a new proposal presented. However it is important that there some adherence to basic principles on proposals that the ccwg would not want to explore. Three areas comes to mind: - Its my understanding that anything that will turn some/all of the SO/AC to members and thereby exposing them to legal challenge is not acceptable - Its my understanding that anything that allows removal of individual board member without the approval of the entire(or larger part) of the community is not acceptable - Its my understanding that a solution that allows direct community veto on certain elements like budget, strategic plan et all is not acceptable but an indirect enforcement could be considered (i.e using a power to get another power executed indirectly) Some/none of the above may be acceptable by us, but my point is that there should be some focus going forward, especially if the target of ICANN54 is to be meet Regards On Mon, Jul 6, 2015 at 3:37 PM, Robin Gross <robin@ipjustice.org> wrote:
I would also like to hear what they propose at this stage. I really don't see how it could hurt to have another proposal to consider. Larry Strickling did say he wanted us to be sure we examined all the options carefully.
Thanks, Robin
On Jul 6, 2015, at 7:32 AM, Greg Shatan wrote:
I agree. We should have the benefit of their thoughts.
Greg
On Mon, Jul 6, 2015 at 9:38 AM, Jordan Carter <jordan@internetnz.net.nz> wrote:
Well, I would really really like to see what the creative thinking they have done has suggested. I trust our ability as a group to make decisions, and do not believe we should cut off input from any direction...
Jordan
On 7 July 2015 at 01:13, James Gannon <james@cyberinvasion.net> wrote:
Hey Avri,
Yes the 3rd model was brought up, and the lawyers feel that it might be a cleaner way for us to get the powers that we need. But without a call from the CCWG to present it they feel that its not their position to propose a model on their own initiative.
Personally i would like to see what they have come up with but the CCWG would need to ask as an overall group for the chairs to direct them to give some more information on the model if we wanted it. I think if after we hear from them on Tuesdays call we still feel we might have some shortcomings that it might be the time to ask them about the 3rd option.
Also +1 I think they are really enjoying the work and are finding themselves getting more and more involved as we go on, which is great for the CCWG as the more background and details they know the better that are able to give us solid well reasoned advice in my opinion.
-James
On 6 Jul 2015, at 13:19, Avri Doria <avri@acm.org> wrote:
Hi,
I have not had a chance to get back to the recording of the call. Not sure I will, that time was the time I had for that call and that is why i was listening then.
In any case, the lawyers were talking about a new model they had come up with, but not knowing what to do about it since they had not been asked for a new model.
I was told to leave before I got to hear the end of that story. Or about the model itself. Anyone who has had a chance to listen, whatever happened?
avri
ps. sometimes i think the lawyers are getting interested in what we are doing, almost like stakeholders. not that i expect them to give up their hourly rates because they are stakeholders.
On 06-Jul-15 05:07, James Gannon wrote:
I listened to the last co-chairs lawyers’ call at; https://community.icann.org/pages/viewpage.action?pageId=53782602 (I’m a glutton for punishment)
It was a short call and I’ll make a particular note that Leon and Mathieu made a point of not making any decisions on behalf of the whole group and made it clear anything requiring a decision must be made by the overall CCWG, so I was happy with that side of things myself, most of my own fears about not having a sub-group are somewhat assuaged.
So my paraphrasing and overview is:
· Lawyers working hard on the models for us collaboratively between the two firms since BA
· Lawyers are prepping a presentation to give to us ASAP before Paris if possible, that presentation will take the majority of a call, it can’t be done quickly, they need about 45mins uninterrupted to go through the presentation and then would likely need Q&A time after they present.
· Some small wording/clarifications to come back to the CCWG to make sure everyone’s on the same page
· Everyone feels Paris will be an important time for the models, lawyers will be ready for a grilling on the details of the models from us to flesh out any of our concerns/questions
Note that the above is all my very condensed overview of the conversations.
It seemed like a productive call to me.
-James
*From:*accountability-cross-community-bounces@icann.org [mailto:accountability-cross-community-bounces@icann.org] *On Behalf Of *Greg Shatan *Sent:* Monday, July 06, 2015 5:33 AM *To:* Carlos Raul *Cc:* accountability-cross-community@icann.org *Subject:* Re: [CCWG-ACCT] Who is managing the lawyers and what have they beenasked to do?
Carlos,
As the legal sub-team was disbanded, your guess is as good as mine.....
Greg
On Mon, Jul 6, 2015 at 12:27 AM, Carlos Raul <carlosraulg@gmail.com <mailto:carlosraulg@gmail.com <carlosraulg@gmail.com>>> wrote:
Thank you Greg!
It makes a lot of sense and I guess those are all good reasons as we hired them in the first place. What are the next steps now? What happened in the recent call?
Best regards
Carlos Raúl Gutiérrez
+506 8837 7176 <tel:%2B506%208837%207176>
Skype carlos.raulg
_________
Apartado 1571-1000
*COSTA RICA*
On Mon, Jul 6, 2015 at 12:02 AM, Greg Shatan <gregshatanipc@gmail.com <mailto:gregshatanipc@gmail.com <gregshatanipc@gmail.com>>> wrote:
Chris,
That was tried to some extent, at least in the CWG.
There are several substantial problems with that approach.
First, lawyers are not fungible. The particular legal skills, background and experience required for the issues before both WGs are fairly specific, and in some cases, very specific. The primary core competency needed here is corporate governance. While a number of lawyers in the community have a reasonable working knowledge of the area, at least in their home jurisdictions, I don't believe there are any who would say that this is their primary focus and expertise -- at least none who identified themselves to either WG. The second core competency required, especially in the CCWG, is non-profit law. Again there are a number of lawyers with a decent working knowledge of this fairly broad field, but not as a primary focus. There may be a couple of lawyers in the community who would claim this fairly broad field as a primary focus and expertise -- but none who became involved with either WG. This then becomes further narrowed by jurisdiction. Since ICANN is a California non-profit corporation, US corporate governance and non-profit experience is more relevant than experience from other jurisdictions, and California law corporate governance and non-profit experience is more relevant than that from other US jurisdictions. In my experience, the more a US lawyer focuses on a particular substantive area, the greater their knowledge of and comfort with state law issues in US state jurisdictions other than their own (e.g., someone who spend a majority of their time working in corporate governance will have a greater knowledge of the law, issues, approaches and trends outside their primary state of practice, while someone who spends a relatively small amount of time in the area will tend to feel less comfortable outside their home jurisdiction). (An exception is that many US lawyers have specific knowledge of certain Delaware corporate law issues, because Delaware often serves as the state of incorporation for entities operating elsewhere.)
Second, lawyers in the community will seldom be seen as neutral advisors, no matter how hard they try. They will tend to be seen as working from their point of view or stakeholder group or "special interest" or desired outcome, even if they are trying to be even-handed. Over the course of time, this balancing act would tend to become more untenable.
Third, the amount of time it would take to provide truly definitive legal advice (research, careful drafting, discussions with relevant "clients", etc.) would be prohibitive, even compared to the substantial amount of time it takes to provide reasonably well-informed and competent legal-based viewpoints in the course of either WG's work.
Fourth, in order to formally counsel the community, the lawyer or lawyers in question would have to enter into a formal attorney-client relationship. Under US law, an attorney-client relationship may inadvertently be created by the attorney's actions, so attorneys try to be careful about not providing formal legal advice without a formal engagement (sometimes providing an explicit "caveat" if they feel they might be getting too close to providing legal advice). If the attorney is employed by a corporation, they would likely be unable to take on such a representation due to the terms of their employment, and that is before getting to an exploration of conflict of interest issues. If the attorney is employed by a firm, the firm would have to sign off on the representation, again dealing with potential conflict issues.
Fifth, even if the above issues were all somehow resolved, it would be highly unlikely that any such attorney would provide substantial amounts of advice, written memos, counseling, etc. on a pro bono (unpaid) basis, especially given the time-consuming nature of the work. Pro bono advice and representation is generally accorded to individuals and entities that could not otherwise be able to pay for it. That is clearly not the case here, at least with ICANN taking financial responsibility. It would likely be very difficult to justify this to, e.g., a firm's pro bono committee, as a valid pro bono representation.
Sixth, if ICANN were not taking the role they are taking, it would be extremely difficult to identify the "client" in this situation. The "community" is a collection of sectors, mostly represented by various ICANN-created structures, which in turn have members of widely varying types (individuals, corporations, sovereigns, non-profits, IGOs, partnerships, etc.). This would also make it extremely difficult to enter into a formal counseling relationship with the "community."
Seventh, this is a sensitive, high-profile, transformative set of actions we are involved in, which is subject to an extraordinary amount of scrutiny, not least that of the NTIA and the US Congress. That eliminates any possibility of providing informal, off-the-cuff, reasonably well-informed but not quite expert, "non-advice" advice -- which might happen in a more obscure exercise. There's simply too much at stake.
Finally, I would say that a number of attorneys involved in one or both of the WGs are in fact providing a significant amount of legal knowledge and experience to the WGs, helping to frame issues, whether in terms of general leadership (e.g., Thomas, Leon, Becky) or more specifically in a "lawyer-as-client" capacity -- working with outside counsel, tackling the more legalistic issues, providing as much legal background and knowledge as possible without providing the type of formal legal advice that would tend to create an attorney-client relationship, etc. So I do think that many lawyers in the community are giving greatly of themselves in this process, even though they cannot and would not be able to formally be engaged by the community as its "counsel of record."
In sum, it might be a nice thought in theory, but it is no way a practical possibility.
Greg
On Sat, Jul 4, 2015 at 3:08 AM, CW Lists <lists@christopherwilkinson.eu <mailto:lists@christopherwilkinson.eu <lists@christopherwilkinson.eu>>> wrote:
Good morning:
I had decided not to enter this debate. But I am bound to say that the thought had occurred to me at the time, that there were more than enough qualified lawyers in this community that they could perfectly well have counselled … themselves.
CW
On 04 Jul 2015, at 08:41, Greg Shatan <gregshatanipc@gmail.com <mailto:gregshatanipc@gmail.com <gregshatanipc@gmail.com>>> wrote:
Wolfgang,
To your first point, the billing rates were clearly stated in the law firms' engagement letters.
To your second point, I'm sure we could all think of other projects and goals where the money could have been "better spent." You've stated yours. But that is not the proper test. This was and continues to be money we need to spend to achieve the goals we have set. Under different circumstances, perhaps it would be a different amount (or maybe none at all). But it was strongly felt at the outset that the group needed to have independent counsel. Clearly that counsel needed to have recognized expertise in the appropriate legal areas. As such, I believe we made excellent choices and have been very well represented.
As to your "better spent" test, I just had to have $4000.00 worth of emergency dental work done. This money definitely could have been "better spent" on a nice vacation, redecorating our living room or on donations to my favored charitable causes. But I had no choice, other than to choose which dentist and endodontist I went to, and I wasn't going to cut corners -- the dental work was a necessity. Similarly, the legal work we are getting is a necessity and whether we would have preferred to spend the money elsewhere is not merely irrelevant, it is an incorrect and inappropriate proposition. Many of us are investing vast quantities of time that could be "better spent" elsewhere as well, but we are willing (grudgingly sometimes) to spend the time it takes to get it right, because we believe it needs to be done. This is the appropriate measure, whether it comes to our time or counsels' time. If we believe in this project, we have to invest in it, and do what it takes to succeed.
Of course, this investment has to be managed wisely and cost-effectively, and by and large, I believe the CCWG has done that reasonably well -- not perfectly, but reasonably well and with "course corrections" along the way intended to improve that management. It's certainly fair to ask, as Robin has done, for a better understanding of that management as we go along. But asserting that the money could have been "better spent" elsewhere sets up a false test that we should not use to evaluate this important aspect of our work. Instead, we need to focus on whether the money was "well spent" on these critical legal services. If you have reason to believe it was not, that could be useful to know. That would at least be the right discussion to have.
Greg
On Sat, Jul 4, 2015 at 1:13 AM, "Kleinwächter, Wolfgang" <wolfgang.kleinwaechter@medienkomm.uni-halle.de <mailto:wolfgang.kleinwaechter@medienkomm.uni-halle.de <wolfgang.kleinwaechter@medienkomm.uni-halle.de>>> wrote:
HI,
and please if you ask outside lawyers, ask for the price tag in advance. Some of the money spend fo lawyers could have been spend better to suppport and enable Internet user and non-commercial groups in developing countries.
Wolfgang
-----Ursprüngliche Nachricht----- Von: accountability-cross-community-bounces@icann.org < mailto:accountability-cross-community-bounces@icann.org <accountability-cross-community-bounces@icann.org>> im Auftrag von Robin Gross Gesendet: Fr 03.07.2015 14:57 An: accountability-cross-community@icann.org <mailto:accountability-cross-community@icann.org <accountability-cross-community@icann.org>> Community Betreff: [CCWG-ACCT] Who is managing the lawyers and what have they beenasked to do?
After the legal sub-team was disbanded, I haven't been able to follow what communications are happening with CCWG and the independent lawyers we retained.
I understand the lawyers are currently "working on the various models" and will present something to us regarding that work soon. However, *what exactly* have the lawyers been asked to do and *who* asked them? If there are written instructions, may the group please see them? Who is now taking on the role of managing the outside attorneys for this group, including providing instructions and certifying legal work?
Sorry, but I'm really trying to understand what is happening, and there doesn't seem to be much information in the public on this (or if there is, I can't find it). Thanks for any information anyone can provide.
Best, Robin
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-- ------------------------------------------------------------------------ *Seun Ojedeji,Federal University Oye-Ekitiweb: http://www.fuoye.edu.ng <http://www.fuoye.edu.ng> Mobile: +2348035233535**alt email: <http://goog_1872880453>seun.ojedeji@fuoye.edu.ng <seun.ojedeji@fuoye.edu.ng>* The key to understanding is humility - my view !
I do not share any of those "understandings" or "basic principles". Those may be the opinions of some, but they are by no means the understandings of the CCWG. I would reject these as basic principles. Greg On Mon, Jul 6, 2015 at 11:09 AM, Seun Ojedeji <seun.ojedeji@gmail.com> wrote:
Hi,
I have no problem with having a new proposal presented. However it is important that there some adherence to basic principles on proposals that the ccwg would not want to explore. Three areas comes to mind:
- Its my understanding that anything that will turn some/all of the SO/AC to members and thereby exposing them to legal challenge is not acceptable - Its my understanding that anything that allows removal of individual board member without the approval of the entire(or larger part) of the community is not acceptable - Its my understanding that a solution that allows direct community veto on certain elements like budget, strategic plan et all is not acceptable but an indirect enforcement could be considered (i.e using a power to get another power executed indirectly)
Some/none of the above may be acceptable by us, but my point is that there should be some focus going forward, especially if the target of ICANN54 is to be meet
Regards
On Mon, Jul 6, 2015 at 3:37 PM, Robin Gross <robin@ipjustice.org> wrote:
I would also like to hear what they propose at this stage. I really don't see how it could hurt to have another proposal to consider. Larry Strickling did say he wanted us to be sure we examined all the options carefully.
Thanks, Robin
On Jul 6, 2015, at 7:32 AM, Greg Shatan wrote:
I agree. We should have the benefit of their thoughts.
Greg
On Mon, Jul 6, 2015 at 9:38 AM, Jordan Carter <jordan@internetnz.net.nz> wrote:
Well, I would really really like to see what the creative thinking they have done has suggested. I trust our ability as a group to make decisions, and do not believe we should cut off input from any direction...
Jordan
On 7 July 2015 at 01:13, James Gannon <james@cyberinvasion.net> wrote:
Hey Avri,
Yes the 3rd model was brought up, and the lawyers feel that it might be a cleaner way for us to get the powers that we need. But without a call from the CCWG to present it they feel that its not their position to propose a model on their own initiative.
Personally i would like to see what they have come up with but the CCWG would need to ask as an overall group for the chairs to direct them to give some more information on the model if we wanted it. I think if after we hear from them on Tuesdays call we still feel we might have some shortcomings that it might be the time to ask them about the 3rd option.
Also +1 I think they are really enjoying the work and are finding themselves getting more and more involved as we go on, which is great for the CCWG as the more background and details they know the better that are able to give us solid well reasoned advice in my opinion.
-James
On 6 Jul 2015, at 13:19, Avri Doria <avri@acm.org> wrote:
Hi,
I have not had a chance to get back to the recording of the call. Not sure I will, that time was the time I had for that call and that is why i was listening then.
In any case, the lawyers were talking about a new model they had come up with, but not knowing what to do about it since they had not been asked for a new model.
I was told to leave before I got to hear the end of that story. Or about the model itself. Anyone who has had a chance to listen, whatever happened?
avri
ps. sometimes i think the lawyers are getting interested in what we are doing, almost like stakeholders. not that i expect them to give up their hourly rates because they are stakeholders.
On 06-Jul-15 05:07, James Gannon wrote:
I listened to the last co-chairs lawyers’ call at; https://community.icann.org/pages/viewpage.action?pageId=53782602 (I’m a glutton for punishment)
It was a short call and I’ll make a particular note that Leon and Mathieu made a point of not making any decisions on behalf of the whole group and made it clear anything requiring a decision must be made by the overall CCWG, so I was happy with that side of things myself, most of my own fears about not having a sub-group are somewhat assuaged.
So my paraphrasing and overview is:
· Lawyers working hard on the models for us collaboratively between the two firms since BA
· Lawyers are prepping a presentation to give to us ASAP before Paris if possible, that presentation will take the majority of a call, it can’t be done quickly, they need about 45mins uninterrupted to go through the presentation and then would likely need Q&A time after they present.
· Some small wording/clarifications to come back to the CCWG to make sure everyone’s on the same page
· Everyone feels Paris will be an important time for the models, lawyers will be ready for a grilling on the details of the models from us to flesh out any of our concerns/questions
Note that the above is all my very condensed overview of the conversations.
It seemed like a productive call to me.
-James
*From:*accountability-cross-community-bounces@icann.org [mailto:accountability-cross-community-bounces@icann.org] *On Behalf Of *Greg Shatan *Sent:* Monday, July 06, 2015 5:33 AM *To:* Carlos Raul *Cc:* accountability-cross-community@icann.org *Subject:* Re: [CCWG-ACCT] Who is managing the lawyers and what have they beenasked to do?
Carlos,
As the legal sub-team was disbanded, your guess is as good as mine.....
Greg
On Mon, Jul 6, 2015 at 12:27 AM, Carlos Raul <carlosraulg@gmail.com <mailto:carlosraulg@gmail.com <carlosraulg@gmail.com>>> wrote:
Thank you Greg!
It makes a lot of sense and I guess those are all good reasons as we hired them in the first place. What are the next steps now? What happened in the recent call?
Best regards
Carlos Raúl Gutiérrez
+506 8837 7176 <tel:%2B506%208837%207176>
Skype carlos.raulg
_________
Apartado 1571-1000
*COSTA RICA*
On Mon, Jul 6, 2015 at 12:02 AM, Greg Shatan <gregshatanipc@gmail.com <mailto:gregshatanipc@gmail.com <gregshatanipc@gmail.com>>> wrote:
Chris,
That was tried to some extent, at least in the CWG.
There are several substantial problems with that approach.
First, lawyers are not fungible. The particular legal skills, background and experience required for the issues before both WGs are fairly specific, and in some cases, very specific. The primary core competency needed here is corporate governance. While a number of lawyers in the community have a reasonable working knowledge of the area, at least in their home jurisdictions, I don't believe there are any who would say that this is their primary focus and expertise -- at least none who identified themselves to either WG. The second core competency required, especially in the CCWG, is non-profit law. Again there are a number of lawyers with a decent working knowledge of this fairly broad field, but not as a primary focus. There may be a couple of lawyers in the community who would claim this fairly broad field as a primary focus and expertise -- but none who became involved with either WG. This then becomes further narrowed by jurisdiction. Since ICANN is a California non-profit corporation, US corporate governance and non-profit experience is more relevant than experience from other jurisdictions, and California law corporate governance and non-profit experience is more relevant than that from other US jurisdictions. In my experience, the more a US lawyer focuses on a particular substantive area, the greater their knowledge of and comfort with state law issues in US state jurisdictions other than their own (e.g., someone who spend a majority of their time working in corporate governance will have a greater knowledge of the law, issues, approaches and trends outside their primary state of practice, while someone who spends a relatively small amount of time in the area will tend to feel less comfortable outside their home jurisdiction). (An exception is that many US lawyers have specific knowledge of certain Delaware corporate law issues, because Delaware often serves as the state of incorporation for entities operating elsewhere.)
Second, lawyers in the community will seldom be seen as neutral advisors, no matter how hard they try. They will tend to be seen as working from their point of view or stakeholder group or "special interest" or desired outcome, even if they are trying to be even-handed. Over the course of time, this balancing act would tend to become more untenable.
Third, the amount of time it would take to provide truly definitive legal advice (research, careful drafting, discussions with relevant "clients", etc.) would be prohibitive, even compared to the substantial amount of time it takes to provide reasonably well-informed and competent legal-based viewpoints in the course of either WG's work.
Fourth, in order to formally counsel the community, the lawyer or lawyers in question would have to enter into a formal attorney-client relationship. Under US law, an attorney-client relationship may inadvertently be created by the attorney's actions, so attorneys try to be careful about not providing formal legal advice without a formal engagement (sometimes providing an explicit "caveat" if they feel they might be getting too close to providing legal advice). If the attorney is employed by a corporation, they would likely be unable to take on such a representation due to the terms of their employment, and that is before getting to an exploration of conflict of interest issues. If the attorney is employed by a firm, the firm would have to sign off on the representation, again dealing with potential conflict issues.
Fifth, even if the above issues were all somehow resolved, it would be highly unlikely that any such attorney would provide substantial amounts of advice, written memos, counseling, etc. on a pro bono (unpaid) basis, especially given the time-consuming nature of the work. Pro bono advice and representation is generally accorded to individuals and entities that could not otherwise be able to pay for it. That is clearly not the case here, at least with ICANN taking financial responsibility. It would likely be very difficult to justify this to, e.g., a firm's pro bono committee, as a valid pro bono representation.
Sixth, if ICANN were not taking the role they are taking, it would be extremely difficult to identify the "client" in this situation. The "community" is a collection of sectors, mostly represented by various ICANN-created structures, which in turn have members of widely varying types (individuals, corporations, sovereigns, non-profits, IGOs, partnerships, etc.). This would also make it extremely difficult to enter into a formal counseling relationship with the "community."
Seventh, this is a sensitive, high-profile, transformative set of actions we are involved in, which is subject to an extraordinary amount of scrutiny, not least that of the NTIA and the US Congress. That eliminates any possibility of providing informal, off-the-cuff, reasonably well-informed but not quite expert, "non-advice" advice -- which might happen in a more obscure exercise. There's simply too much at stake.
Finally, I would say that a number of attorneys involved in one or both of the WGs are in fact providing a significant amount of legal knowledge and experience to the WGs, helping to frame issues, whether in terms of general leadership (e.g., Thomas, Leon, Becky) or more specifically in a "lawyer-as-client" capacity -- working with outside counsel, tackling the more legalistic issues, providing as much legal background and knowledge as possible without providing the type of formal legal advice that would tend to create an attorney-client relationship, etc. So I do think that many lawyers in the community are giving greatly of themselves in this process, even though they cannot and would not be able to formally be engaged by the community as its "counsel of record."
In sum, it might be a nice thought in theory, but it is no way a practical possibility.
Greg
On Sat, Jul 4, 2015 at 3:08 AM, CW Lists <lists@christopherwilkinson.eu <mailto:lists@christopherwilkinson.eu <lists@christopherwilkinson.eu>>> wrote:
Good morning:
I had decided not to enter this debate. But I am bound to say that the thought had occurred to me at the time, that there were more than enough qualified lawyers in this community that they could perfectly well have counselled … themselves.
CW
On 04 Jul 2015, at 08:41, Greg Shatan <gregshatanipc@gmail.com <mailto:gregshatanipc@gmail.com <gregshatanipc@gmail.com>>> wrote:
Wolfgang,
To your first point, the billing rates were clearly stated in the law firms' engagement letters.
To your second point, I'm sure we could all think of other projects and goals where the money could have been "better spent." You've stated yours. But that is not the proper test. This was and continues to be money we need to spend to achieve the goals we have set. Under different circumstances, perhaps it would be a different amount (or maybe none at all). But it was strongly felt at the outset that the group needed to have independent counsel. Clearly that counsel needed to have recognized expertise in the appropriate legal areas. As such, I believe we made excellent choices and have been very well represented.
As to your "better spent" test, I just had to have $4000.00 worth of emergency dental work done. This money definitely could have been "better spent" on a nice vacation, redecorating our living room or on donations to my favored charitable causes. But I had no choice, other than to choose which dentist and endodontist I went to, and I wasn't going to cut corners -- the dental work was a necessity. Similarly, the legal work we are getting is a necessity and whether we would have preferred to spend the money elsewhere is not merely irrelevant, it is an incorrect and inappropriate proposition. Many of us are investing vast quantities of time that could be "better spent" elsewhere as well, but we are willing (grudgingly sometimes) to spend the time it takes to get it right, because we believe it needs to be done. This is the appropriate measure, whether it comes to our time or counsels' time. If we believe in this project, we have to invest in it, and do what it takes to succeed.
Of course, this investment has to be managed wisely and cost-effectively, and by and large, I believe the CCWG has done that reasonably well -- not perfectly, but reasonably well and with "course corrections" along the way intended to improve that management. It's certainly fair to ask, as Robin has done, for a better understanding of that management as we go along. But asserting that the money could have been "better spent" elsewhere sets up a false test that we should not use to evaluate this important aspect of our work. Instead, we need to focus on whether the money was "well spent" on these critical legal services. If you have reason to believe it was not, that could be useful to know. That would at least be the right discussion to have.
Greg
On Sat, Jul 4, 2015 at 1:13 AM, "Kleinwächter, Wolfgang" <wolfgang.kleinwaechter@medienkomm.uni-halle.de <mailto:wolfgang.kleinwaechter@medienkomm.uni-halle.de <wolfgang.kleinwaechter@medienkomm.uni-halle.de>>> wrote:
HI,
and please if you ask outside lawyers, ask for the price tag in advance. Some of the money spend fo lawyers could have been spend better to suppport and enable Internet user and non-commercial groups in developing countries.
Wolfgang
-----Ursprüngliche Nachricht----- Von: accountability-cross-community-bounces@icann.org < mailto:accountability-cross-community-bounces@icann.org <accountability-cross-community-bounces@icann.org>> im Auftrag von Robin Gross Gesendet: Fr 03.07.2015 14:57 An: accountability-cross-community@icann.org <mailto:accountability-cross-community@icann.org <accountability-cross-community@icann.org>> Community Betreff: [CCWG-ACCT] Who is managing the lawyers and what have they beenasked to do?
After the legal sub-team was disbanded, I haven't been able to follow what communications are happening with CCWG and the independent lawyers we retained.
I understand the lawyers are currently "working on the various models" and will present something to us regarding that work soon. However, *what exactly* have the lawyers been asked to do and *who* asked them? If there are written instructions, may the group please see them? Who is now taking on the role of managing the outside attorneys for this group, including providing instructions and certifying legal work?
Sorry, but I'm really trying to understand what is happening, and there doesn't seem to be much information in the public on this (or if there is, I can't find it). Thanks for any information anyone can provide.
Best, Robin
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Chief Executive *InternetNZ*
04 495 2118 (office) | +64 21 442 649 (mob) jordan@internetnz.net.nz Skype: jordancarter
*A better world through a better Internet *
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*Seun Ojedeji,Federal University Oye-Ekitiweb: http://www.fuoye.edu.ng <http://www.fuoye.edu.ng> Mobile: +2348035233535**alt email: <http://goog_1872880453>seun.ojedeji@fuoye.edu.ng <seun.ojedeji@fuoye.edu.ng>*
The key to understanding is humility - my view !
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Have to say that I agree with Greg. On 7/6/2015 11:28 AM, Greg Shatan wrote:
I do not share any of those "understandings" or "basic principles". Those may be the opinions of some, but they are by no means the understandings of the CCWG. I would reject these as basic principles.
Greg
On Mon, Jul 6, 2015 at 11:09 AM, Seun Ojedeji <seun.ojedeji@gmail.com <mailto:seun.ojedeji@gmail.com>> wrote:
Hi,
I have no problem with having a new proposal presented. However it is important that there some adherence to basic principles on proposals that the ccwg would not want to explore. Three areas comes to mind:
- Its my understanding that anything that will turn some/all of the SO/AC to members and thereby exposing them to legal challenge is not acceptable - Its my understanding that anything that allows removal of individual board member without the approval of the entire(or larger part) of the community is not acceptable - Its my understanding that a solution that allows direct community veto on certain elements like budget, strategic plan et all is not acceptable but an indirect enforcement could be considered (i.e using a power to get another power executed indirectly)
Some/none of the above may be acceptable by us, but my point is that there should be some focus going forward, especially if the target of ICANN54 is to be meet
Regards
On Mon, Jul 6, 2015 at 3:37 PM, Robin Gross <robin@ipjustice.org <mailto:robin@ipjustice.org>> wrote:
I would also like to hear what they propose at this stage. I really don't see how it could hurt to have another proposal to consider. Larry Strickling did say he wanted us to be sure we examined all the options carefully.
Thanks, Robin
On Jul 6, 2015, at 7:32 AM, Greg Shatan wrote:
I agree. We should have the benefit of their thoughts.
Greg
On Mon, Jul 6, 2015 at 9:38 AM, Jordan Carter <jordan@internetnz.net.nz <mailto:jordan@internetnz.net.nz>> wrote:
Well, I would really really like to see what the creative thinking they have done has suggested. I trust our ability as a group to make decisions, and do not believe we should cut off input from any direction...
Jordan
On 7 July 2015 at 01:13, James Gannon <james@cyberinvasion.net <mailto:james@cyberinvasion.net>> wrote:
Hey Avri,
Yes the 3rd model was brought up, and the lawyers feel that it might be a cleaner way for us to get the powers that we need. But without a call from the CCWG to present it they feel that its not their position to propose a model on their own initiative.
Personally i would like to see what they have come up with but the CCWG would need to ask as an overall group for the chairs to direct them to give some more information on the model if we wanted it. I think if after we hear from them on Tuesdays call we still feel we might have some shortcomings that it might be the time to ask them about the 3rd option.
Also +1 I think they are really enjoying the work and are finding themselves getting more and more involved as we go on, which is great for the CCWG as the more background and details they know the better that are able to give us solid well reasoned advice in my opinion.
-James
On 6 Jul 2015, at 13:19, Avri Doria <avri@acm.org <mailto:avri@acm.org>> wrote:
Hi,
I have not had a chance to get back to the recording of the call. Not sure I will, that time was the time I had for that call and that is why i was listening then.
In any case, the lawyers were talking about a new model they had come up with, but not knowing what to do about it since they had not been asked for a new model.
I was told to leave before I got to hear the end of that story. Or about the model itself. Anyone who has had a chance to listen, whatever happened?
avri
ps. sometimes i think the lawyers are getting interested in what we are doing, almost like stakeholders. not that i expect them to give up their hourly rates because they are stakeholders.
On 06-Jul-15 05:07, James Gannon wrote:
I listened to the last co-chairs lawyers’ call at; https://community.icann.org/pages/viewpage.action?pageId=53782602 (I’m a glutton for punishment)
It was a short call and I’ll make a particular note that Leon and Mathieu made a point of not making any decisions on behalf of the whole group and made it clear anything requiring a decision must be made by the overall CCWG, so I was happy with that side of things myself, most of my own fears about not having a sub-group are somewhat assuaged.
So my paraphrasing and overview is:
· Lawyers working hard on the models for us collaboratively between the two firms since BA
· Lawyers are prepping a presentation to give to us ASAP before Paris if possible, that presentation will take the majority of a call, it can’t be done quickly, they need about 45mins uninterrupted to go through the presentation and then would likely need Q&A time after they present.
· Some small wording/clarifications to come back to the CCWG to make sure everyone’s on the same page
· Everyone feels Paris will be an important time for the models, lawyers will be ready for a grilling on the details of the models from us to flesh out any of our concerns/questions
Note that the above is all my very condensed overview of the conversations.
It seemed like a productive call to me.
-James
*From:*accountability-cross-community-bounces@icann.org <mailto:accountability-cross-community-bounces@icann.org> [mailto:accountability-cross-community-bounces@icann.org <mailto:accountability-cross-community-bounces@icann.org>] *On Behalf Of *Greg Shatan *Sent:* Monday, July 06, 2015 5:33 AM *To:* Carlos Raul *Cc:* accountability-cross-community@icann.org <mailto:accountability-cross-community@icann.org> *Subject:* Re: [CCWG-ACCT] Who is managing the lawyers and what have they beenasked to do?
Carlos,
As the legal sub-team was disbanded, your guess is as good as mine.....
Greg
On Mon, Jul 6, 2015 at 12:27 AM, Carlos Raul <carlosraulg@gmail.com <mailto:carlosraulg@gmail.com> <mailto:carlosraulg@gmail.com>> wrote:
Thank you Greg!
It makes a lot of sense and I guess those are all good reasons as we hired them in the first place. What are the next steps now? What happened in the recent call?
Best regards
Carlos Raúl Gutiérrez
+506 8837 7176 <tel:%2B506%208837%207176> <tel:%2B506%208837%207176>
Skype carlos.raulg
_________
Apartado 1571-1000
*COSTA RICA*
On Mon, Jul 6, 2015 at 12:02 AM, Greg Shatan <gregshatanipc@gmail.com <mailto:gregshatanipc@gmail.com><mailto:gregshatanipc@gmail.com>> wrote:
Chris,
That was tried to some extent, at least in the CWG.
There are several substantial problems with that approach.
First, lawyers are not fungible. The particular legal skills, background and experience required for the issues before both WGs are fairly specific, and in some cases, very specific. The primary core competency needed here is corporate governance. While a number of lawyers in the community have a reasonable working knowledge of the area, at least in their home jurisdictions, I don't believe there are any who would say that this is their primary focus and expertise -- at least none who identified themselves to either WG. The second core competency required, especially in the CCWG, is non-profit law. Again there are a number of lawyers with a decent working knowledge of this fairly broad field, but not as a primary focus. There may be a couple of lawyers in the community who would claim this fairly broad field as a primary focus and expertise -- but none who became involved with either WG. This then becomes further narrowed by jurisdiction. Since ICANN is a California non-profit corporation, US corporate governance and non-profit experience is more relevant than experience from other jurisdictions, and California law corporate governance and non-profit experience is more relevant than that from other US jurisdictions. In my experience, the more a US lawyer focuses on a particular substantive area, the greater their knowledge of and comfort with state law issues in US state jurisdictions other than their own (e.g., someone who spend a majority of their time working in corporate governance will have a greater knowledge of the law, issues, approaches and trends outside their primary state of practice, while someone who spends a relatively small amount of time in the area will tend to feel less comfortable outside their home jurisdiction). (An exception is that many US lawyers have specific knowledge of certain Delaware corporate law issues, because Delaware often serves as the state of incorporation for entities operating elsewhere.)
Second, lawyers in the community will seldom be seen as neutral advisors, no matter how hard they try. They will tend to be seen as working from their point of view or stakeholder group or "special interest" or desired outcome, even if they are trying to be even-handed. Over the course of time, this balancing act would tend to become more untenable.
Third, the amount of time it would take to provide truly definitive legal advice (research, careful drafting, discussions with relevant "clients", etc.) would be prohibitive, even compared to the substantial amount of time it takes to provide reasonably well-informed and competent legal-based viewpoints in the course of either WG's work.
Fourth, in order to formally counsel the community, the lawyer or lawyers in question would have to enter into a formal attorney-client relationship. Under US law, an attorney-client relationship may inadvertently be created by the attorney's actions, so attorneys try to be careful about not providing formal legal advice without a formal engagement (sometimes providing an explicit "caveat" if they feel they might be getting too close to providing legal advice). If the attorney is employed by a corporation, they would likely be unable to take on such a representation due to the terms of their employment, and that is before getting to an exploration of conflict of interest issues. If the attorney is employed by a firm, the firm would have to sign off on the representation, again dealing with potential conflict issues.
Fifth, even if the above issues were all somehow resolved, it would be highly unlikely that any such attorney would provide substantial amounts of advice, written memos, counseling, etc. on a pro bono (unpaid) basis, especially given the time-consuming nature of the work. Pro bono advice and representation is generally accorded to individuals and entities that could not otherwise be able to pay for it. That is clearly not the case here, at least with ICANN taking financial responsibility. It would likely be very difficult to justify this to, e.g., a firm's pro bono committee, as a valid pro bono representation.
Sixth, if ICANN were not taking the role they are taking, it would be extremely difficult to identify the "client" in this situation. The "community" is a collection of sectors, mostly represented by various ICANN-created structures, which in turn have members of widely varying types (individuals, corporations, sovereigns, non-profits, IGOs, partnerships, etc.). This would also make it extremely difficult to enter into a formal counseling relationship with the "community."
Seventh, this is a sensitive, high-profile, transformative set of actions we are involved in, which is subject to an extraordinary amount of scrutiny, not least that of the NTIA and the US Congress. That eliminates any possibility of providing informal, off-the-cuff, reasonably well-informed but not quite expert, "non-advice" advice -- which might happen in a more obscure exercise. There's simply too much at stake.
Finally, I would say that a number of attorneys involved in one or both of the WGs are in fact providing a significant amount of legal knowledge and experience to the WGs, helping to frame issues, whether in terms of general leadership (e.g., Thomas, Leon, Becky) or more specifically in a "lawyer-as-client" capacity -- working with outside counsel, tackling the more legalistic issues, providing as much legal background and knowledge as possible without providing the type of formal legal advice that would tend to create an attorney-client relationship, etc. So I do think that many lawyers in the community are giving greatly of themselves in this process, even though they cannot and would not be able to formally be engaged by the community as its "counsel of record."
In sum, it might be a nice thought in theory, but it is no way a practical possibility.
Greg
On Sat, Jul 4, 2015 at 3:08 AM, CW Lists <lists@christopherwilkinson.eu <mailto:lists@christopherwilkinson.eu> <mailto:lists@christopherwilkinson.eu>> wrote:
Good morning:
I had decided not to enter this debate. But I am bound to say that the thought had occurred to me at the time, that there were more than enough qualified lawyers in this community that they could perfectly well have counselled … themselves.
CW
On 04 Jul 2015, at 08:41, Greg Shatan <gregshatanipc@gmail.com <mailto:gregshatanipc@gmail.com><mailto:gregshatanipc@gmail.com>> wrote:
Wolfgang,
To your first point, the billing rates were clearly stated in the law firms' engagement letters.
To your second point, I'm sure we could all think of other projects and goals where the money could have been "better spent." You've stated yours. But that is not the proper test. This was and continues to be money we need to spend to achieve the goals we have set. Under different circumstances, perhaps it would be a different amount (or maybe none at all). But it was strongly felt at the outset that the group needed to have independent counsel. Clearly that counsel needed to have recognized expertise in the appropriate legal areas. As such, I believe we made excellent choices and have been very well represented.
As to your "better spent" test, I just had to have $4000.00 worth of emergency dental work done. This money definitely could have been "better spent" on a nice vacation, redecorating our living room or on donations to my favored charitable causes. But I had no choice, other than to choose which dentist and endodontist I went to, and I wasn't going to cut corners -- the dental work was a necessity. Similarly, the legal work we are getting is a necessity and whether we would have preferred to spend the money elsewhere is not merely irrelevant, it is an incorrect and inappropriate proposition. Many of us are investing vast quantities of time that could be "better spent" elsewhere as well, but we are willing (grudgingly sometimes) to spend the time it takes to get it right, because we believe it needs to be done. This is the appropriate measure, whether it comes to our time or counsels' time. If we believe in this project, we have to invest in it, and do what it takes to succeed.
Of course, this investment has to be managed wisely and cost-effectively, and by and large, I believe the CCWG has done that reasonably well -- not perfectly, but reasonably well and with "course corrections" along the way intended to improve that management. It's certainly fair to ask, as Robin has done, for a better understanding of that management as we go along. But asserting that the money could have been "better spent" elsewhere sets up a false test that we should not use to evaluate this important aspect of our work. Instead, we need to focus on whether the money was "well spent" on these critical legal services. If you have reason to believe it was not, that could be useful to know. That would at least be the right discussion to have.
Greg
On Sat, Jul 4, 2015 at 1:13 AM, "Kleinwächter, Wolfgang" <wolfgang.kleinwaechter@medienkomm.uni-halle.de <mailto:wolfgang.kleinwaechter@medienkomm.uni-halle.de> <mailto:wolfgang.kleinwaechter@medienkomm.uni-halle.de>> wrote:
HI,
and please if you ask outside lawyers, ask for the price tag in advance. Some of the money spend fo lawyers could have been spend better to suppport and enable Internet user and non-commercial groups in developing countries.
Wolfgang
-----Ursprüngliche Nachricht----- Von: accountability-cross-community-bounces@icann.org <mailto:accountability-cross-community-bounces@icann.org> <mailto:accountability-cross-community-bounces@icann.org> im Auftrag von Robin Gross Gesendet: Fr 03.07.2015 14:57 An:accountability-cross-community@icann.org <mailto:accountability-cross-community@icann.org> <mailto:accountability-cross-community@icann.org> Community Betreff: [CCWG-ACCT] Who is managing the lawyers and what have they beenasked to do?
After the legal sub-team was disbanded, I haven't been able to follow what communications are happening with CCWG and the independent lawyers we retained.
I understand the lawyers are currently "working on the various models" and will present something to us regarding that work soon. However, *what exactly* have the lawyers been asked to do and *who* asked them? If there are written instructions, may the group please see them? Who is now taking on the role of managing the outside attorneys for this group, including providing instructions and certifying legal work?
Sorry, but I'm really trying to understand what is happening, and there doesn't seem to be much information in the public on this (or if there is, I can't find it). Thanks for any information anyone can provide.
Best, Robin
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I would agree with Greg, while I support some of them they shouldn’t be agreed as overall principals as we go forward. The model proposers and legal counsel are working to our core community powers in an evolving manner as we work, I think we are all intelligent enough to work in that iterative fashion without having to setup common hard set boundaries and the associated negotiation that would come along with trying to define those. -James From: accountability-cross-community-bounces@icann.org [mailto:accountability-cross-community-bounces@icann.org] On Behalf Of Greg Shatan Sent: Monday, July 06, 2015 4:28 PM To: Seun Ojedeji Cc: accountability-cross-community@icann.org Community Subject: Re: [CCWG-ACCT] Who is managing the lawyers and what have they beenasked to do? I do not share any of those "understandings" or "basic principles". Those may be the opinions of some, but they are by no means the understandings of the CCWG. I would reject these as basic principles. Greg On Mon, Jul 6, 2015 at 11:09 AM, Seun Ojedeji <seun.ojedeji@gmail.com<mailto:seun.ojedeji@gmail.com>> wrote: Hi, I have no problem with having a new proposal presented. However it is important that there some adherence to basic principles on proposals that the ccwg would not want to explore. Three areas comes to mind: - Its my understanding that anything that will turn some/all of the SO/AC to members and thereby exposing them to legal challenge is not acceptable - Its my understanding that anything that allows removal of individual board member without the approval of the entire(or larger part) of the community is not acceptable - Its my understanding that a solution that allows direct community veto on certain elements like budget, strategic plan et all is not acceptable but an indirect enforcement could be considered (i.e using a power to get another power executed indirectly) Some/none of the above may be acceptable by us, but my point is that there should be some focus going forward, especially if the target of ICANN54 is to be meet Regards On Mon, Jul 6, 2015 at 3:37 PM, Robin Gross <robin@ipjustice.org<mailto:robin@ipjustice.org>> wrote: I would also like to hear what they propose at this stage. I really don't see how it could hurt to have another proposal to consider. Larry Strickling did say he wanted us to be sure we examined all the options carefully. Thanks, Robin On Jul 6, 2015, at 7:32 AM, Greg Shatan wrote: I agree. We should have the benefit of their thoughts. Greg On Mon, Jul 6, 2015 at 9:38 AM, Jordan Carter <jordan@internetnz.net.nz<mailto:jordan@internetnz.net.nz>> wrote: Well, I would really really like to see what the creative thinking they have done has suggested. I trust our ability as a group to make decisions, and do not believe we should cut off input from any direction... Jordan On 7 July 2015 at 01:13, James Gannon <james@cyberinvasion.net<mailto:james@cyberinvasion.net>> wrote: Hey Avri, Yes the 3rd model was brought up, and the lawyers feel that it might be a cleaner way for us to get the powers that we need. But without a call from the CCWG to present it they feel that its not their position to propose a model on their own initiative. Personally i would like to see what they have come up with but the CCWG would need to ask as an overall group for the chairs to direct them to give some more information on the model if we wanted it. I think if after we hear from them on Tuesdays call we still feel we might have some shortcomings that it might be the time to ask them about the 3rd option. Also +1 I think they are really enjoying the work and are finding themselves getting more and more involved as we go on, which is great for the CCWG as the more background and details they know the better that are able to give us solid well reasoned advice in my opinion. -James On 6 Jul 2015, at 13:19, Avri Doria <avri@acm.org<mailto:avri@acm.org>> wrote: Hi, I have not had a chance to get back to the recording of the call. Not sure I will, that time was the time I had for that call and that is why i was listening then. In any case, the lawyers were talking about a new model they had come up with, but not knowing what to do about it since they had not been asked for a new model. I was told to leave before I got to hear the end of that story. Or about the model itself. Anyone who has had a chance to listen, whatever happened? avri ps. sometimes i think the lawyers are getting interested in what we are doing, almost like stakeholders. not that i expect them to give up their hourly rates because they are stakeholders. On 06-Jul-15 05:07, James Gannon wrote: I listened to the last co-chairs lawyers’ call at; https://community.icann.org/pages/viewpage.action?pageId=53782602 (I’m a glutton for punishment) It was a short call and I’ll make a particular note that Leon and Mathieu made a point of not making any decisions on behalf of the whole group and made it clear anything requiring a decision must be made by the overall CCWG, so I was happy with that side of things myself, most of my own fears about not having a sub-group are somewhat assuaged. So my paraphrasing and overview is: · Lawyers working hard on the models for us collaboratively between the two firms since BA · Lawyers are prepping a presentation to give to us ASAP before Paris if possible, that presentation will take the majority of a call, it can’t be done quickly, they need about 45mins uninterrupted to go through the presentation and then would likely need Q&A time after they present. · Some small wording/clarifications to come back to the CCWG to make sure everyone’s on the same page · Everyone feels Paris will be an important time for the models, lawyers will be ready for a grilling on the details of the models from us to flesh out any of our concerns/questions Note that the above is all my very condensed overview of the conversations. It seemed like a productive call to me. -James *From:*accountability-cross-community-bounces@icann.org<mailto:accountability-cross-community-bounces@icann.org> [mailto:accountability-cross-community-bounces@icann.org<mailto:accountability-cross-community-bounces@icann.org>] *On Behalf Of *Greg Shatan *Sent:* Monday, July 06, 2015 5:33 AM *To:* Carlos Raul *Cc:* accountability-cross-community@icann.org<mailto:accountability-cross-community@icann.org> *Subject:* Re: [CCWG-ACCT] Who is managing the lawyers and what have they beenasked to do? Carlos, As the legal sub-team was disbanded, your guess is as good as mine..... Greg On Mon, Jul 6, 2015 at 12:27 AM, Carlos Raul <carlosraulg@gmail.com<mailto:carlosraulg@gmail.com> <mailto:carlosraulg@gmail.com>> wrote: Thank you Greg! It makes a lot of sense and I guess those are all good reasons as we hired them in the first place. What are the next steps now? What happened in the recent call? Best regards Carlos Raúl Gutiérrez +506 8837 7176<tel:%2B506%208837%207176> <tel:%2B506%208837%207176> Skype carlos.raulg _________ Apartado 1571-1000 *COSTA RICA* On Mon, Jul 6, 2015 at 12:02 AM, Greg Shatan <gregshatanipc@gmail.com<mailto:gregshatanipc@gmail.com> <mailto:gregshatanipc@gmail.com>> wrote: Chris, That was tried to some extent, at least in the CWG. There are several substantial problems with that approach. First, lawyers are not fungible. The particular legal skills, background and experience required for the issues before both WGs are fairly specific, and in some cases, very specific. The primary core competency needed here is corporate governance. While a number of lawyers in the community have a reasonable working knowledge of the area, at least in their home jurisdictions, I don't believe there are any who would say that this is their primary focus and expertise -- at least none who identified themselves to either WG. The second core competency required, especially in the CCWG, is non-profit law. Again there are a number of lawyers with a decent working knowledge of this fairly broad field, but not as a primary focus. There may be a couple of lawyers in the community who would claim this fairly broad field as a primary focus and expertise -- but none who became involved with either WG. This then becomes further narrowed by jurisdiction. Since ICANN is a California non-profit corporation, US corporate governance and non-profit experience is more relevant than experience from other jurisdictions, and California law corporate governance and non-profit experience is more relevant than that from other US jurisdictions. In my experience, the more a US lawyer focuses on a particular substantive area, the greater their knowledge of and comfort with state law issues in US state jurisdictions other than their own (e.g., someone who spend a majority of their time working in corporate governance will have a greater knowledge of the law, issues, approaches and trends outside their primary state of practice, while someone who spends a relatively small amount of time in the area will tend to feel less comfortable outside their home jurisdiction). (An exception is that many US lawyers have specific knowledge of certain Delaware corporate law issues, because Delaware often serves as the state of incorporation for entities operating elsewhere.) Second, lawyers in the community will seldom be seen as neutral advisors, no matter how hard they try. They will tend to be seen as working from their point of view or stakeholder group or "special interest" or desired outcome, even if they are trying to be even-handed. Over the course of time, this balancing act would tend to become more untenable. Third, the amount of time it would take to provide truly definitive legal advice (research, careful drafting, discussions with relevant "clients", etc.) would be prohibitive, even compared to the substantial amount of time it takes to provide reasonably well-informed and competent legal-based viewpoints in the course of either WG's work. Fourth, in order to formally counsel the community, the lawyer or lawyers in question would have to enter into a formal attorney-client relationship. Under US law, an attorney-client relationship may inadvertently be created by the attorney's actions, so attorneys try to be careful about not providing formal legal advice without a formal engagement (sometimes providing an explicit "caveat" if they feel they might be getting too close to providing legal advice). If the attorney is employed by a corporation, they would likely be unable to take on such a representation due to the terms of their employment, and that is before getting to an exploration of conflict of interest issues. If the attorney is employed by a firm, the firm would have to sign off on the representation, again dealing with potential conflict issues. Fifth, even if the above issues were all somehow resolved, it would be highly unlikely that any such attorney would provide substantial amounts of advice, written memos, counseling, etc. on a pro bono (unpaid) basis, especially given the time-consuming nature of the work. Pro bono advice and representation is generally accorded to individuals and entities that could not otherwise be able to pay for it. That is clearly not the case here, at least with ICANN taking financial responsibility. It would likely be very difficult to justify this to, e.g., a firm's pro bono committee, as a valid pro bono representation. Sixth, if ICANN were not taking the role they are taking, it would be extremely difficult to identify the "client" in this situation. The "community" is a collection of sectors, mostly represented by various ICANN-created structures, which in turn have members of widely varying types (individuals, corporations, sovereigns, non-profits, IGOs, partnerships, etc.). This would also make it extremely difficult to enter into a formal counseling relationship with the "community." Seventh, this is a sensitive, high-profile, transformative set of actions we are involved in, which is subject to an extraordinary amount of scrutiny, not least that of the NTIA and the US Congress. That eliminates any possibility of providing informal, off-the-cuff, reasonably well-informed but not quite expert, "non-advice" advice -- which might happen in a more obscure exercise. There's simply too much at stake. Finally, I would say that a number of attorneys involved in one or both of the WGs are in fact providing a significant amount of legal knowledge and experience to the WGs, helping to frame issues, whether in terms of general leadership (e.g., Thomas, Leon, Becky) or more specifically in a "lawyer-as-client" capacity -- working with outside counsel, tackling the more legalistic issues, providing as much legal background and knowledge as possible without providing the type of formal legal advice that would tend to create an attorney-client relationship, etc. So I do think that many lawyers in the community are giving greatly of themselves in this process, even though they cannot and would not be able to formally be engaged by the community as its "counsel of record." In sum, it might be a nice thought in theory, but it is no way a practical possibility. Greg On Sat, Jul 4, 2015 at 3:08 AM, CW Lists <lists@christopherwilkinson.eu<mailto:lists@christopherwilkinson.eu> <mailto:lists@christopherwilkinson.eu>> wrote: Good morning: I had decided not to enter this debate. But I am bound to say that the thought had occurred to me at the time, that there were more than enough qualified lawyers in this community that they could perfectly well have counselled … themselves. CW On 04 Jul 2015, at 08:41, Greg Shatan <gregshatanipc@gmail.com<mailto:gregshatanipc@gmail.com> <mailto:gregshatanipc@gmail.com>> wrote: Wolfgang, To your first point, the billing rates were clearly stated in the law firms' engagement letters. To your second point, I'm sure we could all think of other projects and goals where the money could have been "better spent." You've stated yours. But that is not the proper test. This was and continues to be money we need to spend to achieve the goals we have set. Under different circumstances, perhaps it would be a different amount (or maybe none at all). But it was strongly felt at the outset that the group needed to have independent counsel. Clearly that counsel needed to have recognized expertise in the appropriate legal areas. As such, I believe we made excellent choices and have been very well represented. As to your "better spent" test, I just had to have $4000.00 worth of emergency dental work done. This money definitely could have been "better spent" on a nice vacation, redecorating our living room or on donations to my favored charitable causes. But I had no choice, other than to choose which dentist and endodontist I went to, and I wasn't going to cut corners -- the dental work was a necessity. Similarly, the legal work we are getting is a necessity and whether we would have preferred to spend the money elsewhere is not merely irrelevant, it is an incorrect and inappropriate proposition. Many of us are investing vast quantities of time that could be "better spent" elsewhere as well, but we are willing (grudgingly sometimes) to spend the time it takes to get it right, because we believe it needs to be done. This is the appropriate measure, whether it comes to our time or counsels' time. If we believe in this project, we have to invest in it, and do what it takes to succeed. Of course, this investment has to be managed wisely and cost-effectively, and by and large, I believe the CCWG has done that reasonably well -- not perfectly, but reasonably well and with "course corrections" along the way intended to improve that management. It's certainly fair to ask, as Robin has done, for a better understanding of that management as we go along. But asserting that the money could have been "better spent" elsewhere sets up a false test that we should not use to evaluate this important aspect of our work. Instead, we need to focus on whether the money was "well spent" on these critical legal services. If you have reason to believe it was not, that could be useful to know. That would at least be the right discussion to have. Greg On Sat, Jul 4, 2015 at 1:13 AM, "Kleinwächter, Wolfgang" <wolfgang.kleinwaechter@medienkomm.uni-halle.de<mailto:wolfgang.kleinwaechter@medienkomm.uni-halle.de> <mailto:wolfgang.kleinwaechter@medienkomm.uni-halle.de>> wrote: HI, and please if you ask outside lawyers, ask for the price tag in advance. Some of the money spend fo lawyers could have been spend better to suppport and enable Internet user and non-commercial groups in developing countries. Wolfgang -----Ursprüngliche Nachricht----- Von: accountability-cross-community-bounces@icann.org<mailto:accountability-cross-community-bounces@icann.org> <mailto:accountability-cross-community-bounces@icann.org> im Auftrag von Robin Gross Gesendet: Fr 03.07.2015 14:57 An: accountability-cross-community@icann.org<mailto:accountability-cross-community@icann.org> <mailto:accountability-cross-community@icann.org> Community Betreff: [CCWG-ACCT] Who is managing the lawyers and what have they beenasked to do? After the legal sub-team was disbanded, I haven't been able to follow what communications are happening with CCWG and the independent lawyers we retained. I understand the lawyers are currently "working on the various models" and will present something to us regarding that work soon. However, *what exactly* have the lawyers been asked to do and *who* asked them? If there are written instructions, may the group please see them? Who is now taking on the role of managing the outside attorneys for this group, including providing instructions and certifying legal work? Sorry, but I'm really trying to understand what is happening, and there doesn't seem to be much information in the public on this (or if there is, I can't find it). Thanks for any information anyone can provide. Best, Robin _______________________________________________ Accountability-Cross-Community mailing list Accountability-Cross-Community@icann.org<mailto: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> <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> <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 --- This email has been checked for viruses by Avast antivirus software. https://www.avast.com/antivirus _______________________________________________ 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 -- Jordan Carter Chief Executive InternetNZ 04 495 2118 (office) | +64 21 442 649<tel:%2B64%2021%20442%20649> (mob) jordan@internetnz.net.nz<mailto:jordan@internetnz.net.nz> Skype: jordancarter A better world through a better Internet _______________________________________________ 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 -- ------------------------------------------------------------------------ Seun Ojedeji, Federal University Oye-Ekiti web: http://www.fuoye.edu.ng Mobile: +2348035233535 alt email: <http://goog_1872880453> seun.ojedeji@fuoye.edu.ng<mailto:seun.ojedeji@fuoye.edu.ng> The key to understanding is humility - my view ! _______________________________________________ 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
In particular, I think a direct community veto of budget and strategic plan remains essential to accountability … without it there is no control of the executive Paul Paul Rosenzweig <mailto:paul.rosenzweigesq@redbranchconsulting.com> paul.rosenzweig@redbranchconsulting.com O: +1 (202) 547-0660 M: +1 (202) 329-9650 VOIP: +1 (202) 738-1739 Skype: paul.rosenzweig1066 <http://www.redbranchconsulting.com/index.php?option=com_content&view=article...> Link to my PGP Key From: James Gannon [mailto:james@cyberinvasion.net] Sent: Monday, July 6, 2015 11:42 AM To: Greg Shatan; Seun Ojedeji Cc: accountability-cross-community@icann.org Community Subject: Re: [CCWG-ACCT] Who is managing the lawyers and what have they beenasked to do? I would agree with Greg, while I support some of them they shouldn’t be agreed as overall principals as we go forward. The model proposers and legal counsel are working to our core community powers in an evolving manner as we work, I think we are all intelligent enough to work in that iterative fashion without having to setup common hard set boundaries and the associated negotiation that would come along with trying to define those. -James From: accountability-cross-community-bounces@icann.org <mailto:accountability-cross-community-bounces@icann.org> [mailto:accountability-cross-community-bounces@icann.org] On Behalf Of Greg Shatan Sent: Monday, July 06, 2015 4:28 PM To: Seun Ojedeji Cc: accountability-cross-community@icann.org <mailto:accountability-cross-community@icann.org> Community Subject: Re: [CCWG-ACCT] Who is managing the lawyers and what have they beenasked to do? I do not share any of those "understandings" or "basic principles". Those may be the opinions of some, but they are by no means the understandings of the CCWG. I would reject these as basic principles. Greg On Mon, Jul 6, 2015 at 11:09 AM, Seun Ojedeji <seun.ojedeji@gmail.com <mailto:seun.ojedeji@gmail.com> > wrote: Hi, I have no problem with having a new proposal presented. However it is important that there some adherence to basic principles on proposals that the ccwg would not want to explore. Three areas comes to mind: - Its my understanding that anything that will turn some/all of the SO/AC to members and thereby exposing them to legal challenge is not acceptable - Its my understanding that anything that allows removal of individual board member without the approval of the entire(or larger part) of the community is not acceptable - Its my understanding that a solution that allows direct community veto on certain elements like budget, strategic plan et all is not acceptable but an indirect enforcement could be considered (i.e using a power to get another power executed indirectly) Some/none of the above may be acceptable by us, but my point is that there should be some focus going forward, especially if the target of ICANN54 is to be meet Regards On Mon, Jul 6, 2015 at 3:37 PM, Robin Gross <robin@ipjustice.org <mailto:robin@ipjustice.org> > wrote: I would also like to hear what they propose at this stage. I really don't see how it could hurt to have another proposal to consider. Larry Strickling did say he wanted us to be sure we examined all the options carefully. Thanks, Robin On Jul 6, 2015, at 7:32 AM, Greg Shatan wrote: I agree. We should have the benefit of their thoughts. Greg On Mon, Jul 6, 2015 at 9:38 AM, Jordan Carter <jordan@internetnz.net.nz <mailto:jordan@internetnz.net.nz> > wrote: Well, I would really really like to see what the creative thinking they have done has suggested. I trust our ability as a group to make decisions, and do not believe we should cut off input from any direction... Jordan On 7 July 2015 at 01:13, James Gannon <james@cyberinvasion.net <mailto:james@cyberinvasion.net> > wrote: Hey Avri, Yes the 3rd model was brought up, and the lawyers feel that it might be a cleaner way for us to get the powers that we need. But without a call from the CCWG to present it they feel that its not their position to propose a model on their own initiative. Personally i would like to see what they have come up with but the CCWG would need to ask as an overall group for the chairs to direct them to give some more information on the model if we wanted it. I think if after we hear from them on Tuesdays call we still feel we might have some shortcomings that it might be the time to ask them about the 3rd option. Also +1 I think they are really enjoying the work and are finding themselves getting more and more involved as we go on, which is great for the CCWG as the more background and details they know the better that are able to give us solid well reasoned advice in my opinion. -James On 6 Jul 2015, at 13:19, Avri Doria <avri@acm.org <mailto:avri@acm.org> > wrote: Hi, I have not had a chance to get back to the recording of the call. Not sure I will, that time was the time I had for that call and that is why i was listening then. In any case, the lawyers were talking about a new model they had come up with, but not knowing what to do about it since they had not been asked for a new model. I was told to leave before I got to hear the end of that story. Or about the model itself. Anyone who has had a chance to listen, whatever happened? avri ps. sometimes i think the lawyers are getting interested in what we are doing, almost like stakeholders. not that i expect them to give up their hourly rates because they are stakeholders. On 06-Jul-15 05:07, James Gannon wrote: I listened to the last co-chairs lawyers’ call at; https://community.icann.org/pages/viewpage.action?pageId=53782602 (I’m a glutton for punishment) It was a short call and I’ll make a particular note that Leon and Mathieu made a point of not making any decisions on behalf of the whole group and made it clear anything requiring a decision must be made by the overall CCWG, so I was happy with that side of things myself, most of my own fears about not having a sub-group are somewhat assuaged. So my paraphrasing and overview is: · Lawyers working hard on the models for us collaboratively between the two firms since BA · Lawyers are prepping a presentation to give to us ASAP before Paris if possible, that presentation will take the majority of a call, it can’t be done quickly, they need about 45mins uninterrupted to go through the presentation and then would likely need Q&A time after they present. · Some small wording/clarifications to come back to the CCWG to make sure everyone’s on the same page · Everyone feels Paris will be an important time for the models, lawyers will be ready for a grilling on the details of the models from us to flesh out any of our concerns/questions Note that the above is all my very condensed overview of the conversations. It seemed like a productive call to me. -James *From:*accountability-cross-community-bounces@icann.org <mailto:accountability-cross-community-bounces@icann.org> [mailto:accountability-cross-community-bounces@icann.org <mailto:accountability-cross-community-bounces@icann.org> ] *On Behalf Of *Greg Shatan *Sent:* Monday, July 06, 2015 5:33 AM *To:* Carlos Raul *Cc:* accountability-cross-community@icann.org <mailto:accountability-cross-community@icann.org> *Subject:* Re: [CCWG-ACCT] Who is managing the lawyers and what have they beenasked to do? Carlos, As the legal sub-team was disbanded, your guess is as good as mine..... Greg On Mon, Jul 6, 2015 at 12:27 AM, Carlos Raul <carlosraulg@gmail.com <mailto:carlosraulg@gmail.com> <mailto:carlosraulg@gmail.com>> wrote: Thank you Greg! It makes a lot of sense and I guess those are all good reasons as we hired them in the first place. What are the next steps now? What happened in the recent call? Best regards Carlos Raúl Gutiérrez +506 8837 7176 <tel:%2B506%208837%207176> <tel:%2B506%208837%207176> Skype carlos.raulg _________ Apartado 1571-1000 *COSTA RICA* On Mon, Jul 6, 2015 at 12:02 AM, Greg Shatan <gregshatanipc@gmail.com <mailto:gregshatanipc@gmail.com> <mailto:gregshatanipc@gmail.com>> wrote: Chris, That was tried to some extent, at least in the CWG. There are several substantial problems with that approach. First, lawyers are not fungible. The particular legal skills, background and experience required for the issues before both WGs are fairly specific, and in some cases, very specific. The primary core competency needed here is corporate governance. While a number of lawyers in the community have a reasonable working knowledge of the area, at least in their home jurisdictions, I don't believe there are any who would say that this is their primary focus and expertise -- at least none who identified themselves to either WG. The second core competency required, especially in the CCWG, is non-profit law. Again there are a number of lawyers with a decent working knowledge of this fairly broad field, but not as a primary focus. There may be a couple of lawyers in the community who would claim this fairly broad field as a primary focus and expertise -- but none who became involved with either WG. This then becomes further narrowed by jurisdiction. Since ICANN is a California non-profit corporation, US corporate governance and non-profit experience is more relevant than experience from other jurisdictions, and California law corporate governance and non-profit experience is more relevant than that from other US jurisdictions. In my experience, the more a US lawyer focuses on a particular substantive area, the greater their knowledge of and comfort with state law issues in US state jurisdictions other than their own (e.g., someone who spend a majority of their time working in corporate governance will have a greater knowledge of the law, issues, approaches and trends outside their primary state of practice, while someone who spends a relatively small amount of time in the area will tend to feel less comfortable outside their home jurisdiction). (An exception is that many US lawyers have specific knowledge of certain Delaware corporate law issues, because Delaware often serves as the state of incorporation for entities operating elsewhere.) Second, lawyers in the community will seldom be seen as neutral advisors, no matter how hard they try. They will tend to be seen as working from their point of view or stakeholder group or "special interest" or desired outcome, even if they are trying to be even-handed. Over the course of time, this balancing act would tend to become more untenable. Third, the amount of time it would take to provide truly definitive legal advice (research, careful drafting, discussions with relevant "clients", etc.) would be prohibitive, even compared to the substantial amount of time it takes to provide reasonably well-informed and competent legal-based viewpoints in the course of either WG's work. Fourth, in order to formally counsel the community, the lawyer or lawyers in question would have to enter into a formal attorney-client relationship. Under US law, an attorney-client relationship may inadvertently be created by the attorney's actions, so attorneys try to be careful about not providing formal legal advice without a formal engagement (sometimes providing an explicit "caveat" if they feel they might be getting too close to providing legal advice). If the attorney is employed by a corporation, they would likely be unable to take on such a representation due to the terms of their employment, and that is before getting to an exploration of conflict of interest issues. If the attorney is employed by a firm, the firm would have to sign off on the representation, again dealing with potential conflict issues. Fifth, even if the above issues were all somehow resolved, it would be highly unlikely that any such attorney would provide substantial amounts of advice, written memos, counseling, etc. on a pro bono (unpaid) basis, especially given the time-consuming nature of the work. Pro bono advice and representation is generally accorded to individuals and entities that could not otherwise be able to pay for it. That is clearly not the case here, at least with ICANN taking financial responsibility. It would likely be very difficult to justify this to, e.g., a firm's pro bono committee, as a valid pro bono representation. Sixth, if ICANN were not taking the role they are taking, it would be extremely difficult to identify the "client" in this situation. The "community" is a collection of sectors, mostly represented by various ICANN-created structures, which in turn have members of widely varying types (individuals, corporations, sovereigns, non-profits, IGOs, partnerships, etc.). This would also make it extremely difficult to enter into a formal counseling relationship with the "community." Seventh, this is a sensitive, high-profile, transformative set of actions we are involved in, which is subject to an extraordinary amount of scrutiny, not least that of the NTIA and the US Congress. That eliminates any possibility of providing informal, off-the-cuff, reasonably well-informed but not quite expert, "non-advice" advice -- which might happen in a more obscure exercise. There's simply too much at stake. Finally, I would say that a number of attorneys involved in one or both of the WGs are in fact providing a significant amount of legal knowledge and experience to the WGs, helping to frame issues, whether in terms of general leadership (e.g., Thomas, Leon, Becky) or more specifically in a "lawyer-as-client" capacity -- working with outside counsel, tackling the more legalistic issues, providing as much legal background and knowledge as possible without providing the type of formal legal advice that would tend to create an attorney-client relationship, etc. So I do think that many lawyers in the community are giving greatly of themselves in this process, even though they cannot and would not be able to formally be engaged by the community as its "counsel of record." In sum, it might be a nice thought in theory, but it is no way a practical possibility. Greg On Sat, Jul 4, 2015 at 3:08 AM, CW Lists <lists@christopherwilkinson.eu <mailto:lists@christopherwilkinson.eu> <mailto:lists@christopherwilkinson.eu>> wrote: Good morning: I had decided not to enter this debate. But I am bound to say that the thought had occurred to me at the time, that there were more than enough qualified lawyers in this community that they could perfectly well have counselled … themselves. CW On 04 Jul 2015, at 08:41, Greg Shatan <gregshatanipc@gmail.com <mailto:gregshatanipc@gmail.com> <mailto:gregshatanipc@gmail.com>> wrote: Wolfgang, To your first point, the billing rates were clearly stated in the law firms' engagement letters. To your second point, I'm sure we could all think of other projects and goals where the money could have been "better spent." You've stated yours. But that is not the proper test. This was and continues to be money we need to spend to achieve the goals we have set. Under different circumstances, perhaps it would be a different amount (or maybe none at all). But it was strongly felt at the outset that the group needed to have independent counsel. Clearly that counsel needed to have recognized expertise in the appropriate legal areas. As such, I believe we made excellent choices and have been very well represented. As to your "better spent" test, I just had to have $4000.00 worth of emergency dental work done. This money definitely could have been "better spent" on a nice vacation, redecorating our living room or on donations to my favored charitable causes. But I had no choice, other than to choose which dentist and endodontist I went to, and I wasn't going to cut corners -- the dental work was a necessity. Similarly, the legal work we are getting is a necessity and whether we would have preferred to spend the money elsewhere is not merely irrelevant, it is an incorrect and inappropriate proposition. Many of us are investing vast quantities of time that could be "better spent" elsewhere as well, but we are willing (grudgingly sometimes) to spend the time it takes to get it right, because we believe it needs to be done. This is the appropriate measure, whether it comes to our time or counsels' time. If we believe in this project, we have to invest in it, and do what it takes to succeed. Of course, this investment has to be managed wisely and cost-effectively, and by and large, I believe the CCWG has done that reasonably well -- not perfectly, but reasonably well and with "course corrections" along the way intended to improve that management. It's certainly fair to ask, as Robin has done, for a better understanding of that management as we go along. But asserting that the money could have been "better spent" elsewhere sets up a false test that we should not use to evaluate this important aspect of our work. Instead, we need to focus on whether the money was "well spent" on these critical legal services. If you have reason to believe it was not, that could be useful to know. That would at least be the right discussion to have. Greg On Sat, Jul 4, 2015 at 1:13 AM, "Kleinwächter, Wolfgang" <wolfgang.kleinwaechter@medienkomm.uni-halle.de <mailto:wolfgang.kleinwaechter@medienkomm.uni-halle.de> <mailto:wolfgang.kleinwaechter@medienkomm.uni-halle.de>> wrote: HI, and please if you ask outside lawyers, ask for the price tag in advance. Some of the money spend fo lawyers could have been spend better to suppport and enable Internet user and non-commercial groups in developing countries. Wolfgang -----Ursprüngliche Nachricht----- Von: accountability-cross-community-bounces@icann.org <mailto:accountability-cross-community-bounces@icann.org> <mailto:accountability-cross-community-bounces@icann.org> im Auftrag von Robin Gross Gesendet: Fr 03.07.2015 14:57 An: accountability-cross-community@icann.org <mailto:accountability-cross-community@icann.org> <mailto:accountability-cross-community@icann.org> Community Betreff: [CCWG-ACCT] Who is managing the lawyers and what have they beenasked to do? After the legal sub-team was disbanded, I haven't been able to follow what communications are happening with CCWG and the independent lawyers we retained. I understand the lawyers are currently "working on the various models" and will present something to us regarding that work soon. However, *what exactly* have the lawyers been asked to do and *who* asked them? If there are written instructions, may the group please see them? Who is now taking on the role of managing the outside attorneys for this group, including providing instructions and certifying legal work? Sorry, but I'm really trying to understand what is happening, and there doesn't seem to be much information in the public on this (or if there is, I can't find it). Thanks for any information anyone can provide. Best, Robin _______________________________________________ Accountability-Cross-Community mailing list Accountability-Cross-Community@icann.org <mailto: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> <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> <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 --- This email has been checked for viruses by Avast antivirus software. <https://www.avast.com/antivirus> https://www.avast.com/antivirus _______________________________________________ Accountability-Cross-Community mailing list <mailto:Accountability-Cross-Community@icann.org> Accountability-Cross-Community@icann.org <https://mm.icann.org/mailman/listinfo/accountability-cross-community> 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 -- Jordan Carter Chief Executive InternetNZ 04 495 2118 (office) | +64 21 442 649 <tel:%2B64%2021%20442%20649> (mob) jordan@internetnz.net.nz <mailto:jordan@internetnz.net.nz> Skype: jordancarter A better world through a better Internet _______________________________________________ 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 -- ------------------------------------------------------------------------ Seun Ojedeji, Federal University Oye-Ekiti web: http://www.fuoye.edu.ng Mobile: +2348035233535 alt email: <http://goog_1872880453> seun.ojedeji@fuoye.edu.ng <mailto:seun.ojedeji@fuoye.edu.ng> The key to understanding is humility - my view ! _______________________________________________ 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
Dear Co-Chairs, I need to point out that neither of the two participants is a member of this CCWG. el -- Sent from Dr Lisse's iPad mini
On Jul 6, 2015, at 16:28, Greg Shatan <gregshatanipc@gmail.com> wrote:
I do not share any of those "understandings" or "basic principles". Those may be the opinions of some, but they are by no means the understandings of the CCWG. I would reject these as basic principles.
Greg
On Mon, Jul 6, 2015 at 11:09 AM, Seun Ojedeji <seun.ojedeji@gmail.com> wrote: Hi,
I have no problem with having a new proposal presented. However it is important that there some adherence to basic principles on proposals that the ccwg would not want to explore. Three areas comes to mind:
- Its my understanding that anything that will turn some/all of the SO/AC to members and thereby exposing them to legal challenge is not acceptable - Its my understanding that anything that allows removal of individual board member without the approval of the entire(or larger part) of the community is not acceptable - Its my understanding that a solution that allows direct community veto on certain elements like budget, strategic plan et all is not acceptable but an indirect enforcement could be considered (i.e using a power to get another power executed indirectly)
Some/none of the above may be acceptable by us, but my point is that there should be some focus going forward, especially if the target of ICANN54 is to be meet
Regards
FWIW, What the gentle man said is correct and I don't envy being a member either ;-) That said, I am not aware of any restrictions to ccwg participants contributing/raising their view on the list. I however understand members may have voting rights while participants don't. Overall it will be good to know if there are new contribution requirement for members and participants apart from the ones mentioned above. Until then, I will operate by the understanding above. Cheers! On 6 Jul 2015 7:05 pm, "Dr Eberhard W Lisse" <epilisse@gmail.com> wrote:
Dear Co-Chairs,
I need to point out that neither of the two participants is a member of this CCWG.
el
-- Sent from Dr Lisse's iPad mini
On Jul 6, 2015, at 16:28, Greg Shatan <gregshatanipc@gmail.com> wrote:
I do not share any of those "understandings" or "basic principles". Those may be the opinions of some, but they are by no means the understandings of the CCWG. I would reject these as basic principles.
Greg
On Mon, Jul 6, 2015 at 11:09 AM, Seun Ojedeji <seun.ojedeji@gmail.com> wrote:
Hi,
I have no problem with having a new proposal presented. However it is important that there some adherence to basic principles on proposals that the ccwg would not want to explore. Three areas comes to mind:
- Its my understanding that anything that will turn some/all of the SO/AC to members and thereby exposing them to legal challenge is not acceptable - Its my understanding that anything that allows removal of individual board member without the approval of the entire(or larger part) of the community is not acceptable - Its my understanding that a solution that allows direct community veto on certain elements like budget, strategic plan et all is not acceptable but an indirect enforcement could be considered (i.e using a power to get another power executed indirectly)
Some/none of the above may be acceptable by us, but my point is that there should be some focus going forward, especially if the target of ICANN54 is to be meet
Regards
_______________________________________________ Accountability-Cross-Community mailing list Accountability-Cross-Community@icann.org https://mm.icann.org/mailman/listinfo/accountability-cross-community
Dear Colleagues, With regards to the distinction member / participant, a friendly reminder that our group's policy is based on openness. I would like to encourage participants AND members to keep contributing to our work as much as their availability enables them to. The relevant section of our Charter is as follows :
In addition, the CCWG-Accountability will be open to any interested person as a participant. Participants may be from a chartering organization, from a stakeholder group not represented in the CCWG-Accountability, or may be self-appointed. Participants will be able to actively participate in and attend all CCWG-Accountability meetings, work groups and sub-work groups. However, should there be a need for a consensus call or decision, such consensus call or decision will be limited to CCWG-Accountability members appointed by the chartering organizations.
Best, Mathieu Le 06/07/2015 20:04, Dr Eberhard W Lisse a écrit :
Dear Co-Chairs,
I need to point out that neither of the two participants is a member of this CCWG.
el
-- Sent from Dr Lisse's iPad mini
On Jul 6, 2015, at 16:28, Greg Shatan <gregshatanipc@gmail.com <mailto:gregshatanipc@gmail.com>> wrote:
I do not share any of those "understandings" or "basic principles". Those may be the opinions of some, but they are by no means the understandings of the CCWG. I would reject these as basic principles.
Greg
On Mon, Jul 6, 2015 at 11:09 AM, Seun Ojedeji <seun.ojedeji@gmail.com <mailto:seun.ojedeji@gmail.com>> wrote:
Hi,
I have no problem with having a new proposal presented. However it is important that there some adherence to basic principles on proposals that the ccwg would not want to explore. Three areas comes to mind:
- Its my understanding that anything that will turn some/all of the SO/AC to members and thereby exposing them to legal challenge is not acceptable - Its my understanding that anything that allows removal of individual board member without the approval of the entire(or larger part) of the community is not acceptable - Its my understanding that a solution that allows direct community veto on certain elements like budget, strategic plan et all is not acceptable but an indirect enforcement could be considered (i.e using a power to get another power executed indirectly)
Some/none of the above may be acceptable by us, but my point is that there should be some focus going forward, especially if the target of ICANN54 is to be meet
Regards
_______________________________________________ Accountability-Cross-Community mailing list Accountability-Cross-Community@icann.org https://mm.icann.org/mailman/listinfo/accountability-cross-community
-- ***************************** Mathieu WEILL AFNIC - directeur général Tél: +33 1 39 30 83 06 mathieu.weill@afnic.fr Twitter : @mathieuweill *****************************
That’s certainly not my understanding From: accountability-cross-community-bounces@icann.org [mailto:accountability-cross-community-bounces@icann.org] On Behalf Of Seun Ojedeji Sent: Monday, July 6, 2015 11:10 AM To: Robin Gross Cc: accountability-cross-community@icann.org Community Subject: Re: [CCWG-ACCT] Who is managing the lawyers and what have they beenasked to do? Hi, I have no problem with having a new proposal presented. However it is important that there some adherence to basic principles on proposals that the ccwg would not want to explore. Three areas comes to mind: - Its my understanding that anything that will turn some/all of the SO/AC to members and thereby exposing them to legal challenge is not acceptable - Its my understanding that anything that allows removal of individual board member without the approval of the entire(or larger part) of the community is not acceptable - Its my understanding that a solution that allows direct community veto on certain elements like budget, strategic plan et all is not acceptable but an indirect enforcement could be considered (i.e using a power to get another power executed indirectly) Some/none of the above may be acceptable by us, but my point is that there should be some focus going forward, especially if the target of ICANN54 is to be meet Regards On Mon, Jul 6, 2015 at 3:37 PM, Robin Gross <robin@ipjustice.org<mailto:robin@ipjustice.org>> wrote: I would also like to hear what they propose at this stage. I really don't see how it could hurt to have another proposal to consider. Larry Strickling did say he wanted us to be sure we examined all the options carefully. Thanks, Robin On Jul 6, 2015, at 7:32 AM, Greg Shatan wrote: I agree. We should have the benefit of their thoughts. Greg On Mon, Jul 6, 2015 at 9:38 AM, Jordan Carter <jordan@internetnz.net.nz<mailto:jordan@internetnz.net.nz>> wrote: Well, I would really really like to see what the creative thinking they have done has suggested. I trust our ability as a group to make decisions, and do not believe we should cut off input from any direction... Jordan On 7 July 2015 at 01:13, James Gannon <james@cyberinvasion.net<mailto:james@cyberinvasion.net>> wrote: Hey Avri, Yes the 3rd model was brought up, and the lawyers feel that it might be a cleaner way for us to get the powers that we need. But without a call from the CCWG to present it they feel that its not their position to propose a model on their own initiative. Personally i would like to see what they have come up with but the CCWG would need to ask as an overall group for the chairs to direct them to give some more information on the model if we wanted it. I think if after we hear from them on Tuesdays call we still feel we might have some shortcomings that it might be the time to ask them about the 3rd option. Also +1 I think they are really enjoying the work and are finding themselves getting more and more involved as we go on, which is great for the CCWG as the more background and details they know the better that are able to give us solid well reasoned advice in my opinion. -James On 6 Jul 2015, at 13:19, Avri Doria <avri@acm.org<mailto:avri@acm.org>> wrote: Hi, I have not had a chance to get back to the recording of the call. Not sure I will, that time was the time I had for that call and that is why i was listening then. In any case, the lawyers were talking about a new model they had come up with, but not knowing what to do about it since they had not been asked for a new model. I was told to leave before I got to hear the end of that story. Or about the model itself. Anyone who has had a chance to listen, whatever happened? avri ps. sometimes i think the lawyers are getting interested in what we are doing, almost like stakeholders. not that i expect them to give up their hourly rates because they are stakeholders. On 06-Jul-15 05:07, James Gannon wrote: I listened to the last co-chairs lawyers’ call at; https://community.icann.org/pages/viewpage.action?pageId=53782602 (I’m a glutton for punishment) It was a short call and I’ll make a particular note that Leon and Mathieu made a point of not making any decisions on behalf of the whole group and made it clear anything requiring a decision must be made by the overall CCWG, so I was happy with that side of things myself, most of my own fears about not having a sub-group are somewhat assuaged. So my paraphrasing and overview is: · Lawyers working hard on the models for us collaboratively between the two firms since BA · Lawyers are prepping a presentation to give to us ASAP before Paris if possible, that presentation will take the majority of a call, it can’t be done quickly, they need about 45mins uninterrupted to go through the presentation and then would likely need Q&A time after they present. · Some small wording/clarifications to come back to the CCWG to make sure everyone’s on the same page · Everyone feels Paris will be an important time for the models, lawyers will be ready for a grilling on the details of the models from us to flesh out any of our concerns/questions Note that the above is all my very condensed overview of the conversations. It seemed like a productive call to me. -James *From:*accountability-cross-community-bounces@icann.org<mailto:accountability-cross-community-bounces@icann.org> [mailto:accountability-cross-community-bounces@icann.org<mailto:accountability-cross-community-bounces@icann.org>] *On Behalf Of *Greg Shatan *Sent:* Monday, July 06, 2015 5:33 AM *To:* Carlos Raul *Cc:* accountability-cross-community@icann.org<mailto:accountability-cross-community@icann.org> *Subject:* Re: [CCWG-ACCT] Who is managing the lawyers and what have they beenasked to do? Carlos, As the legal sub-team was disbanded, your guess is as good as mine..... Greg On Mon, Jul 6, 2015 at 12:27 AM, Carlos Raul <carlosraulg@gmail.com<mailto:carlosraulg@gmail.com> <mailto:carlosraulg@gmail.com>> wrote: Thank you Greg! It makes a lot of sense and I guess those are all good reasons as we hired them in the first place. What are the next steps now? What happened in the recent call? Best regards Carlos Raúl Gutiérrez +506 8837 7176<tel:%2B506%208837%207176> <tel:%2B506%208837%207176> Skype carlos.raulg _________ Apartado 1571-1000 *COSTA RICA* On Mon, Jul 6, 2015 at 12:02 AM, Greg Shatan <gregshatanipc@gmail.com<mailto:gregshatanipc@gmail.com> <mailto:gregshatanipc@gmail.com>> wrote: Chris, That was tried to some extent, at least in the CWG. There are several substantial problems with that approach. First, lawyers are not fungible. The particular legal skills, background and experience required for the issues before both WGs are fairly specific, and in some cases, very specific. The primary core competency needed here is corporate governance. While a number of lawyers in the community have a reasonable working knowledge of the area, at least in their home jurisdictions, I don't believe there are any who would say that this is their primary focus and expertise -- at least none who identified themselves to either WG. The second core competency required, especially in the CCWG, is non-profit law. Again there are a number of lawyers with a decent working knowledge of this fairly broad field, but not as a primary focus. There may be a couple of lawyers in the community who would claim this fairly broad field as a primary focus and expertise -- but none who became involved with either WG. This then becomes further narrowed by jurisdiction. Since ICANN is a California non-profit corporation, US corporate governance and non-profit experience is more relevant than experience from other jurisdictions, and California law corporate governance and non-profit experience is more relevant than that from other US jurisdictions. In my experience, the more a US lawyer focuses on a particular substantive area, the greater their knowledge of and comfort with state law issues in US state jurisdictions other than their own (e.g., someone who spend a majority of their time working in corporate governance will have a greater knowledge of the law, issues, approaches and trends outside their primary state of practice, while someone who spends a relatively small amount of time in the area will tend to feel less comfortable outside their home jurisdiction). (An exception is that many US lawyers have specific knowledge of certain Delaware corporate law issues, because Delaware often serves as the state of incorporation for entities operating elsewhere.) Second, lawyers in the community will seldom be seen as neutral advisors, no matter how hard they try. They will tend to be seen as working from their point of view or stakeholder group or "special interest" or desired outcome, even if they are trying to be even-handed. Over the course of time, this balancing act would tend to become more untenable. Third, the amount of time it would take to provide truly definitive legal advice (research, careful drafting, discussions with relevant "clients", etc.) would be prohibitive, even compared to the substantial amount of time it takes to provide reasonably well-informed and competent legal-based viewpoints in the course of either WG's work. Fourth, in order to formally counsel the community, the lawyer or lawyers in question would have to enter into a formal attorney-client relationship. Under US law, an attorney-client relationship may inadvertently be created by the attorney's actions, so attorneys try to be careful about not providing formal legal advice without a formal engagement (sometimes providing an explicit "caveat" if they feel they might be getting too close to providing legal advice). If the attorney is employed by a corporation, they would likely be unable to take on such a representation due to the terms of their employment, and that is before getting to an exploration of conflict of interest issues. If the attorney is employed by a firm, the firm would have to sign off on the representation, again dealing with potential conflict issues. Fifth, even if the above issues were all somehow resolved, it would be highly unlikely that any such attorney would provide substantial amounts of advice, written memos, counseling, etc. on a pro bono (unpaid) basis, especially given the time-consuming nature of the work. Pro bono advice and representation is generally accorded to individuals and entities that could not otherwise be able to pay for it. That is clearly not the case here, at least with ICANN taking financial responsibility. It would likely be very difficult to justify this to, e.g., a firm's pro bono committee, as a valid pro bono representation. Sixth, if ICANN were not taking the role they are taking, it would be extremely difficult to identify the "client" in this situation. The "community" is a collection of sectors, mostly represented by various ICANN-created structures, which in turn have members of widely varying types (individuals, corporations, sovereigns, non-profits, IGOs, partnerships, etc.). This would also make it extremely difficult to enter into a formal counseling relationship with the "community." Seventh, this is a sensitive, high-profile, transformative set of actions we are involved in, which is subject to an extraordinary amount of scrutiny, not least that of the NTIA and the US Congress. That eliminates any possibility of providing informal, off-the-cuff, reasonably well-informed but not quite expert, "non-advice" advice -- which might happen in a more obscure exercise. There's simply too much at stake. Finally, I would say that a number of attorneys involved in one or both of the WGs are in fact providing a significant amount of legal knowledge and experience to the WGs, helping to frame issues, whether in terms of general leadership (e.g., Thomas, Leon, Becky) or more specifically in a "lawyer-as-client" capacity -- working with outside counsel, tackling the more legalistic issues, providing as much legal background and knowledge as possible without providing the type of formal legal advice that would tend to create an attorney-client relationship, etc. So I do think that many lawyers in the community are giving greatly of themselves in this process, even though they cannot and would not be able to formally be engaged by the community as its "counsel of record." In sum, it might be a nice thought in theory, but it is no way a practical possibility. Greg On Sat, Jul 4, 2015 at 3:08 AM, CW Lists <lists@christopherwilkinson.eu<mailto:lists@christopherwilkinson.eu> <mailto:lists@christopherwilkinson.eu>> wrote: Good morning: I had decided not to enter this debate. But I am bound to say that the thought had occurred to me at the time, that there were more than enough qualified lawyers in this community that they could perfectly well have counselled … themselves. CW On 04 Jul 2015, at 08:41, Greg Shatan <gregshatanipc@gmail.com<mailto:gregshatanipc@gmail.com> <mailto:gregshatanipc@gmail.com>> wrote: Wolfgang, To your first point, the billing rates were clearly stated in the law firms' engagement letters. To your second point, I'm sure we could all think of other projects and goals where the money could have been "better spent." You've stated yours. But that is not the proper test. This was and continues to be money we need to spend to achieve the goals we have set. Under different circumstances, perhaps it would be a different amount (or maybe none at all). But it was strongly felt at the outset that the group needed to have independent counsel. Clearly that counsel needed to have recognized expertise in the appropriate legal areas. As such, I believe we made excellent choices and have been very well represented. As to your "better spent" test, I just had to have $4000.00 worth of emergency dental work done. This money definitely could have been "better spent" on a nice vacation, redecorating our living room or on donations to my favored charitable causes. But I had no choice, other than to choose which dentist and endodontist I went to, and I wasn't going to cut corners -- the dental work was a necessity. Similarly, the legal work we are getting is a necessity and whether we would have preferred to spend the money elsewhere is not merely irrelevant, it is an incorrect and inappropriate proposition. Many of us are investing vast quantities of time that could be "better spent" elsewhere as well, but we are willing (grudgingly sometimes) to spend the time it takes to get it right, because we believe it needs to be done. This is the appropriate measure, whether it comes to our time or counsels' time. If we believe in this project, we have to invest in it, and do what it takes to succeed. Of course, this investment has to be managed wisely and cost-effectively, and by and large, I believe the CCWG has done that reasonably well -- not perfectly, but reasonably well and with "course corrections" along the way intended to improve that management. It's certainly fair to ask, as Robin has done, for a better understanding of that management as we go along. But asserting that the money could have been "better spent" elsewhere sets up a false test that we should not use to evaluate this important aspect of our work. Instead, we need to focus on whether the money was "well spent" on these critical legal services. If you have reason to believe it was not, that could be useful to know. That would at least be the right discussion to have. Greg On Sat, Jul 4, 2015 at 1:13 AM, "Kleinwächter, Wolfgang" <wolfgang.kleinwaechter@medienkomm.uni-halle.de<mailto:wolfgang.kleinwaechter@medienkomm.uni-halle.de> <mailto:wolfgang.kleinwaechter@medienkomm.uni-halle.de>> wrote: HI, and please if you ask outside lawyers, ask for the price tag in advance. Some of the money spend fo lawyers could have been spend better to suppport and enable Internet user and non-commercial groups in developing countries. Wolfgang -----Ursprüngliche Nachricht----- Von: accountability-cross-community-bounces@icann.org<mailto:accountability-cross-community-bounces@icann.org> <mailto:accountability-cross-community-bounces@icann.org> im Auftrag von Robin Gross Gesendet: Fr 03.07.2015 14:57 An: accountability-cross-community@icann.org<mailto:accountability-cross-community@icann.org> <mailto:accountability-cross-community@icann.org> Community Betreff: [CCWG-ACCT] Who is managing the lawyers and what have they beenasked to do? After the legal sub-team was disbanded, I haven't been able to follow what communications are happening with CCWG and the independent lawyers we retained. I understand the lawyers are currently "working on the various models" and will present something to us regarding that work soon. However, *what exactly* have the lawyers been asked to do and *who* asked them? If there are written instructions, may the group please see them? Who is now taking on the role of managing the outside attorneys for this group, including providing instructions and certifying legal work? Sorry, but I'm really trying to understand what is happening, and there doesn't seem to be much information in the public on this (or if there is, I can't find it). Thanks for any information anyone can provide. Best, Robin _______________________________________________ Accountability-Cross-Community mailing list Accountability-Cross-Community@icann.org<mailto: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> <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> <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 --- This email has been checked for viruses by Avast antivirus software. https://www.avast.com/antivirus _______________________________________________ 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 -- Jordan Carter Chief Executive InternetNZ 04 495 2118 (office) | +64 21 442 649<tel:%2B64%2021%20442%20649> (mob) jordan@internetnz.net.nz<mailto:jordan@internetnz.net.nz> Skype: jordancarter A better world through a better Internet _______________________________________________ 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 -- ------------------------------------------------------------------------ Seun Ojedeji, Federal University Oye-Ekiti web: http://www.fuoye.edu.ng Mobile: +2348035233535 alt email: <http://goog_1872880453> seun.ojedeji@fuoye.edu.ng<mailto:seun.ojedeji@fuoye.edu.ng> The key to understanding is humility - my view !
Seun, I am not sure why we would take direct budget/strat plan veto off the table. Could you explain? Thanks. Becky J. Beckwith Burr Neustar, Inc. / Deputy General Counsel and Chief Privacy Officer 1775 Pennsylvania Avenue NW, Washington, DC 20006 Office: + 1.202.533.2932 Mobile: +1.202.352.6367 / becky.burr@neustar.biz<mailto:becky.burr@neustar.biz> / www.neustar.biz From: Seun Ojedeji <seun.ojedeji@gmail.com<mailto:seun.ojedeji@gmail.com>> Date: Monday, July 6, 2015 at 11:09 AM To: Robin Gross <robin@ipjustice.org<mailto:robin@ipjustice.org>> Cc: Accountability Community <accountability-cross-community@icann.org<mailto:accountability-cross-community@icann.org>> Subject: Re: [CCWG-ACCT] Who is managing the lawyers and what have they beenasked to do? Hi, I have no problem with having a new proposal presented. However it is important that there some adherence to basic principles on proposals that the ccwg would not want to explore. Three areas comes to mind: - Its my understanding that anything that will turn some/all of the SO/AC to members and thereby exposing them to legal challenge is not acceptable - Its my understanding that anything that allows removal of individual board member without the approval of the entire(or larger part) of the community is not acceptable - Its my understanding that a solution that allows direct community veto on certain elements like budget, strategic plan et all is not acceptable but an indirect enforcement could be considered (i.e using a power to get another power executed indirectly) Some/none of the above may be acceptable by us, but my point is that there should be some focus going forward, especially if the target of ICANN54 is to be meet Regards On Mon, Jul 6, 2015 at 3:37 PM, Robin Gross <robin@ipjustice.org<mailto:robin@ipjustice.org>> wrote: I would also like to hear what they propose at this stage. I really don't see how it could hurt to have another proposal to consider. Larry Strickling did say he wanted us to be sure we examined all the options carefully. Thanks, Robin On Jul 6, 2015, at 7:32 AM, Greg Shatan wrote: I agree. We should have the benefit of their thoughts. Greg On Mon, Jul 6, 2015 at 9:38 AM, Jordan Carter <jordan@internetnz.net.nz<mailto:jordan@internetnz.net.nz>> wrote: Well, I would really really like to see what the creative thinking they have done has suggested. I trust our ability as a group to make decisions, and do not believe we should cut off input from any direction... Jordan On 7 July 2015 at 01:13, James Gannon <james@cyberinvasion.net<mailto:james@cyberinvasion.net>> wrote: Hey Avri, Yes the 3rd model was brought up, and the lawyers feel that it might be a cleaner way for us to get the powers that we need. But without a call from the CCWG to present it they feel that its not their position to propose a model on their own initiative. Personally i would like to see what they have come up with but the CCWG would need to ask as an overall group for the chairs to direct them to give some more information on the model if we wanted it. I think if after we hear from them on Tuesdays call we still feel we might have some shortcomings that it might be the time to ask them about the 3rd option. Also +1 I think they are really enjoying the work and are finding themselves getting more and more involved as we go on, which is great for the CCWG as the more background and details they know the better that are able to give us solid well reasoned advice in my opinion. -James On 6 Jul 2015, at 13:19, Avri Doria <avri@acm.org<mailto:avri@acm.org>> wrote: Hi, I have not had a chance to get back to the recording of the call. Not sure I will, that time was the time I had for that call and that is why i was listening then. In any case, the lawyers were talking about a new model they had come up with, but not knowing what to do about it since they had not been asked for a new model. I was told to leave before I got to hear the end of that story. Or about the model itself. Anyone who has had a chance to listen, whatever happened? avri ps. sometimes i think the lawyers are getting interested in what we are doing, almost like stakeholders. not that i expect them to give up their hourly rates because they are stakeholders. On 06-Jul-15 05:07, James Gannon wrote: I listened to the last co-chairs lawyers’ call at; https://community.icann.org/pages/viewpage.action?pageId=53782602<https://urldefense.proofpoint.com/v2/url?u=https-3A__community.icann.org_pages_viewpage.action-3FpageId-3D53782602&d=AwMFaQ&c=MOptNlVtIETeDALC_lULrw&r=62cJFOifzm6X_GRlaq8Mo8TjDmrxdYahOP8WDDkMr4k&m=rX8zWSdUbF0XJ6RQyX5HABE7NaQIgAXHj6WfvEXkLh8&s=5REzt6Gk0Mt5evnhe_F8O87Kpc4hX8wql7vP--WYsnQ&e=> (I’m a glutton for punishment) It was a short call and I’ll make a particular note that Leon and Mathieu made a point of not making any decisions on behalf of the whole group and made it clear anything requiring a decision must be made by the overall CCWG, so I was happy with that side of things myself, most of my own fears about not having a sub-group are somewhat assuaged. So my paraphrasing and overview is: · Lawyers working hard on the models for us collaboratively between the two firms since BA · Lawyers are prepping a presentation to give to us ASAP before Paris if possible, that presentation will take the majority of a call, it can’t be done quickly, they need about 45mins uninterrupted to go through the presentation and then would likely need Q&A time after they present. · Some small wording/clarifications to come back to the CCWG to make sure everyone’s on the same page · Everyone feels Paris will be an important time for the models, lawyers will be ready for a grilling on the details of the models from us to flesh out any of our concerns/questions Note that the above is all my very condensed overview of the conversations. It seemed like a productive call to me. -James *From:*accountability-cross-community-bounces@icann.org<mailto:accountability-cross-community-bounces@icann.org> [mailto:accountability-cross-community-bounces@icann.org<mailto:accountability-cross-community-bounces@icann.org>] *On Behalf Of *Greg Shatan *Sent:* Monday, July 06, 2015 5:33 AM *To:* Carlos Raul *Cc:* accountability-cross-community@icann.org<mailto:accountability-cross-community@icann.org> *Subject:* Re: [CCWG-ACCT] Who is managing the lawyers and what have they beenasked to do? Carlos, As the legal sub-team was disbanded, your guess is as good as mine..... Greg On Mon, Jul 6, 2015 at 12:27 AM, Carlos Raul <carlosraulg@gmail.com<mailto:carlosraulg@gmail.com> <mailto:carlosraulg@gmail.com>> wrote: Thank you Greg! It makes a lot of sense and I guess those are all good reasons as we hired them in the first place. What are the next steps now? What happened in the recent call? Best regards Carlos Raúl Gutiérrez +506 8837 7176<tel:%2B506%208837%207176> <tel:%2B506%208837%207176> Skype carlos.raulg _________ Apartado 1571-1000 *COSTA RICA* On Mon, Jul 6, 2015 at 12:02 AM, Greg Shatan <gregshatanipc@gmail.com<mailto:gregshatanipc@gmail.com> <mailto:gregshatanipc@gmail.com>> wrote: Chris, That was tried to some extent, at least in the CWG. There are several substantial problems with that approach. First, lawyers are not fungible. The particular legal skills, background and experience required for the issues before both WGs are fairly specific, and in some cases, very specific. The primary core competency needed here is corporate governance. While a number of lawyers in the community have a reasonable working knowledge of the area, at least in their home jurisdictions, I don't believe there are any who would say that this is their primary focus and expertise -- at least none who identified themselves to either WG. The second core competency required, especially in the CCWG, is non-profit law. Again there are a number of lawyers with a decent working knowledge of this fairly broad field, but not as a primary focus. There may be a couple of lawyers in the community who would claim this fairly broad field as a primary focus and expertise -- but none who became involved with either WG. This then becomes further narrowed by jurisdiction. Since ICANN is a California non-profit corporation, US corporate governance and non-profit experience is more relevant than experience from other jurisdictions, and California law corporate governance and non-profit experience is more relevant than that from other US jurisdictions. In my experience, the more a US lawyer focuses on a particular substantive area, the greater their knowledge of and comfort with state law issues in US state jurisdictions other than their own (e.g., someone who spend a majority of their time working in corporate governance will have a greater knowledge of the law, issues, approaches and trends outside their primary state of practice, while someone who spends a relatively small amount of time in the area will tend to feel less comfortable outside their home jurisdiction). (An exception is that many US lawyers have specific knowledge of certain Delaware corporate law issues, because Delaware often serves as the state of incorporation for entities operating elsewhere.) Second, lawyers in the community will seldom be seen as neutral advisors, no matter how hard they try. They will tend to be seen as working from their point of view or stakeholder group or "special interest" or desired outcome, even if they are trying to be even-handed. Over the course of time, this balancing act would tend to become more untenable. Third, the amount of time it would take to provide truly definitive legal advice (research, careful drafting, discussions with relevant "clients", etc.) would be prohibitive, even compared to the substantial amount of time it takes to provide reasonably well-informed and competent legal-based viewpoints in the course of either WG's work. Fourth, in order to formally counsel the community, the lawyer or lawyers in question would have to enter into a formal attorney-client relationship. Under US law, an attorney-client relationship may inadvertently be created by the attorney's actions, so attorneys try to be careful about not providing formal legal advice without a formal engagement (sometimes providing an explicit "caveat" if they feel they might be getting too close to providing legal advice). If the attorney is employed by a corporation, they would likely be unable to take on such a representation due to the terms of their employment, and that is before getting to an exploration of conflict of interest issues. If the attorney is employed by a firm, the firm would have to sign off on the representation, again dealing with potential conflict issues. Fifth, even if the above issues were all somehow resolved, it would be highly unlikely that any such attorney would provide substantial amounts of advice, written memos, counseling, etc. on a pro bono (unpaid) basis, especially given the time-consuming nature of the work. Pro bono advice and representation is generally accorded to individuals and entities that could not otherwise be able to pay for it. That is clearly not the case here, at least with ICANN taking financial responsibility. It would likely be very difficult to justify this to, e.g., a firm's pro bono committee, as a valid pro bono representation. Sixth, if ICANN were not taking the role they are taking, it would be extremely difficult to identify the "client" in this situation. The "community" is a collection of sectors, mostly represented by various ICANN-created structures, which in turn have members of widely varying types (individuals, corporations, sovereigns, non-profits, IGOs, partnerships, etc.). This would also make it extremely difficult to enter into a formal counseling relationship with the "community." Seventh, this is a sensitive, high-profile, transformative set of actions we are involved in, which is subject to an extraordinary amount of scrutiny, not least that of the NTIA and the US Congress. That eliminates any possibility of providing informal, off-the-cuff, reasonably well-informed but not quite expert, "non-advice" advice -- which might happen in a more obscure exercise. There's simply too much at stake. Finally, I would say that a number of attorneys involved in one or both of the WGs are in fact providing a significant amount of legal knowledge and experience to the WGs, helping to frame issues, whether in terms of general leadership (e.g., Thomas, Leon, Becky) or more specifically in a "lawyer-as-client" capacity -- working with outside counsel, tackling the more legalistic issues, providing as much legal background and knowledge as possible without providing the type of formal legal advice that would tend to create an attorney-client relationship, etc. So I do think that many lawyers in the community are giving greatly of themselves in this process, even though they cannot and would not be able to formally be engaged by the community as its "counsel of record." In sum, it might be a nice thought in theory, but it is no way a practical possibility. Greg On Sat, Jul 4, 2015 at 3:08 AM, CW Lists <lists@christopherwilkinson.eu<mailto:lists@christopherwilkinson.eu> <mailto:lists@christopherwilkinson.eu>> wrote: Good morning: I had decided not to enter this debate. But I am bound to say that the thought had occurred to me at the time, that there were more than enough qualified lawyers in this community that they could perfectly well have counselled … themselves. CW On 04 Jul 2015, at 08:41, Greg Shatan <gregshatanipc@gmail.com<mailto:gregshatanipc@gmail.com> <mailto:gregshatanipc@gmail.com>> wrote: Wolfgang, To your first point, the billing rates were clearly stated in the law firms' engagement letters. To your second point, I'm sure we could all think of other projects and goals where the money could have been "better spent." You've stated yours. But that is not the proper test. This was and continues to be money we need to spend to achieve the goals we have set. Under different circumstances, perhaps it would be a different amount (or maybe none at all). But it was strongly felt at the outset that the group needed to have independent counsel. Clearly that counsel needed to have recognized expertise in the appropriate legal areas. As such, I believe we made excellent choices and have been very well represented. As to your "better spent" test, I just had to have $4000.00 worth of emergency dental work done. This money definitely could have been "better spent" on a nice vacation, redecorating our living room or on donations to my favored charitable causes. But I had no choice, other than to choose which dentist and endodontist I went to, and I wasn't going to cut corners -- the dental work was a necessity. Similarly, the legal work we are getting is a necessity and whether we would have preferred to spend the money elsewhere is not merely irrelevant, it is an incorrect and inappropriate proposition. Many of us are investing vast quantities of time that could be "better spent" elsewhere as well, but we are willing (grudgingly sometimes) to spend the time it takes to get it right, because we believe it needs to be done. This is the appropriate measure, whether it comes to our time or counsels' time. If we believe in this project, we have to invest in it, and do what it takes to succeed. Of course, this investment has to be managed wisely and cost-effectively, and by and large, I believe the CCWG has done that reasonably well -- not perfectly, but reasonably well and with "course corrections" along the way intended to improve that management. It's certainly fair to ask, as Robin has done, for a better understanding of that management as we go along. But asserting that the money could have been "better spent" elsewhere sets up a false test that we should not use to evaluate this important aspect of our work. Instead, we need to focus on whether the money was "well spent" on these critical legal services. If you have reason to believe it was not, that could be useful to know. That would at least be the right discussion to have. Greg On Sat, Jul 4, 2015 at 1:13 AM, "Kleinwächter, Wolfgang" <wolfgang.kleinwaechter@medienkomm.uni-halle.de<mailto:wolfgang.kleinwaechter@medienkomm.uni-halle.de> <mailto:wolfgang.kleinwaechter@medienkomm.uni-halle.de>> wrote: HI, and please if you ask outside lawyers, ask for the price tag in advance. Some of the money spend fo lawyers could have been spend better to suppport and enable Internet user and non-commercial groups in developing countries. Wolfgang -----Ursprüngliche Nachricht----- Von: accountability-cross-community-bounces@icann.org<mailto:accountability-cross-community-bounces@icann.org> <mailto:accountability-cross-community-bounces@icann.org> im Auftrag von Robin Gross Gesendet: Fr 03.07.2015 14:57 An: accountability-cross-community@icann.org<mailto:accountability-cross-community@icann.org> <mailto:accountability-cross-community@icann.org> Community Betreff: [CCWG-ACCT] Who is managing the lawyers and what have they beenasked to do? After the legal sub-team was disbanded, I haven't been able to follow what communications are happening with CCWG and the independent lawyers we retained. I understand the lawyers are currently "working on the various models" and will present something to us regarding that work soon. However, *what exactly* have the lawyers been asked to do and *who* asked them? If there are written instructions, may the group please see them? Who is now taking on the role of managing the outside attorneys for this group, including providing instructions and certifying legal work? Sorry, but I'm really trying to understand what is happening, and there doesn't seem to be much information in the public on this (or if there is, I can't find it). Thanks for any information anyone can provide. 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Jordan Carter Chief Executive InternetNZ 04 495 2118 (office) | +64 21 442 649<tel:%2B64%2021%20442%20649> (mob) jordan@internetnz.net.nz<mailto:jordan@internetnz.net.nz> Skype: jordancarter A better world through a better Internet _______________________________________________ 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<https://urldefense.proofpoint.com/v2/url?u=https-3A__mm.icann.org_mailman_listinfo_accountability-2Dcross-2Dcommunity&d=AwMFaQ&c=MOptNlVtIETeDALC_lULrw&r=62cJFOifzm6X_GRlaq8Mo8TjDmrxdYahOP8WDDkMr4k&m=rX8zWSdUbF0XJ6RQyX5HABE7NaQIgAXHj6WfvEXkLh8&s=Yqq66BmsF0-t9R7GjryZsv1k1c4OBxUhFvNoM2kB7g8&e=> _______________________________________________ Accountability-Cross-Community mailing list Accountability-Cross-Community@icann.org<mailto:Accountability-Cross-Community@icann.org> 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Federal University Oye-Ekiti web: http://www.fuoye.edu.ng<https://urldefense.proofpoint.com/v2/url?u=http-3A__www.fuoye.edu.ng&d=AwMFaQ&c=MOptNlVtIETeDALC_lULrw&r=62cJFOifzm6X_GRlaq8Mo8TjDmrxdYahOP8WDDkMr4k&m=rX8zWSdUbF0XJ6RQyX5HABE7NaQIgAXHj6WfvEXkLh8&s=JO_X0eTa_TpfkJXFV8e7p5fCVLDvN5atmTw0JvZra7w&e=> Mobile: +2348035233535 alt email:<https://urldefense.proofpoint.com/v2/url?u=http-3A__goog-5F1872880453&d=AwMFaQ&c=MOptNlVtIETeDALC_lULrw&r=62cJFOifzm6X_GRlaq8Mo8TjDmrxdYahOP8WDDkMr4k&m=rX8zWSdUbF0XJ6RQyX5HABE7NaQIgAXHj6WfvEXkLh8&s=CxOnONdooeEh12LEyo_JAeNlU5cJx2oFUeA3bOAxdqE&e=>seun.ojedeji@fuoye.edu.ng<mailto:seun.ojedeji@fuoye.edu.ng> The key to understanding is humility - my view !
Hi Becky, Thanks for asking, item 3 is actually in connection to the fact that such veto may not be possible without item 1(as I understood it) and that is why I said an indirect veto can happen not that I was entirely suggesting that those powers be off the table. It seem however that folks are only looking at the powers and not at what it will take to have them. By the way, I also did put in a reservation that we may not necessarily agree with those views but my concern is mainly that the ccwg does not spend so much time developing proposals that we know has certain implementation requirements that are not compatible with the ICANN community structure. I think we should learn from the the past (based on comments from the last PC) and utilize legal council and volunteer hours more effectively. FWIW speaking as participant. Regards On 6 Jul 2015 8:08 pm, "Burr, Becky" <Becky.Burr@neustar.biz> wrote:
Seun,
I am not sure why we would take direct budget/strat plan veto off the table. Could you explain? Thanks.
Becky
J. Beckwith Burr
*Neustar, Inc. /* Deputy General Counsel and Chief Privacy Officer
1775 Pennsylvania Avenue NW, Washington, DC 20006
Office: + 1.202.533.2932 Mobile: +1.202.352.6367 / becky.burr@neustar.biz / www.neustar.biz
From: Seun Ojedeji <seun.ojedeji@gmail.com> Date: Monday, July 6, 2015 at 11:09 AM To: Robin Gross <robin@ipjustice.org> Cc: Accountability Community <accountability-cross-community@icann.org> Subject: Re: [CCWG-ACCT] Who is managing the lawyers and what have they beenasked to do?
Hi,
I have no problem with having a new proposal presented. However it is important that there some adherence to basic principles on proposals that the ccwg would not want to explore. Three areas comes to mind:
- Its my understanding that anything that will turn some/all of the SO/AC to members and thereby exposing them to legal challenge is not acceptable - Its my understanding that anything that allows removal of individual board member without the approval of the entire(or larger part) of the community is not acceptable - Its my understanding that a solution that allows direct community veto on certain elements like budget, strategic plan et all is not acceptable but an indirect enforcement could be considered (i.e using a power to get another power executed indirectly)
Some/none of the above may be acceptable by us, but my point is that there should be some focus going forward, especially if the target of ICANN54 is to be meet
Regards
On Mon, Jul 6, 2015 at 3:37 PM, Robin Gross <robin@ipjustice.org> wrote:
I would also like to hear what they propose at this stage. I really don't see how it could hurt to have another proposal to consider. Larry Strickling did say he wanted us to be sure we examined all the options carefully.
Thanks, Robin
On Jul 6, 2015, at 7:32 AM, Greg Shatan wrote:
I agree. We should have the benefit of their thoughts.
Greg
On Mon, Jul 6, 2015 at 9:38 AM, Jordan Carter <jordan@internetnz.net.nz> wrote:
Well, I would really really like to see what the creative thinking they have done has suggested. I trust our ability as a group to make decisions, and do not believe we should cut off input from any direction...
Jordan
On 7 July 2015 at 01:13, James Gannon <james@cyberinvasion.net> wrote:
Hey Avri,
Yes the 3rd model was brought up, and the lawyers feel that it might be a cleaner way for us to get the powers that we need. But without a call from the CCWG to present it they feel that its not their position to propose a model on their own initiative.
Personally i would like to see what they have come up with but the CCWG would need to ask as an overall group for the chairs to direct them to give some more information on the model if we wanted it. I think if after we hear from them on Tuesdays call we still feel we might have some shortcomings that it might be the time to ask them about the 3rd option.
Also +1 I think they are really enjoying the work and are finding themselves getting more and more involved as we go on, which is great for the CCWG as the more background and details they know the better that are able to give us solid well reasoned advice in my opinion.
-James
On 6 Jul 2015, at 13:19, Avri Doria <avri@acm.org> wrote:
Hi,
I have not had a chance to get back to the recording of the call. Not sure I will, that time was the time I had for that call and that is why i was listening then.
In any case, the lawyers were talking about a new model they had come up with, but not knowing what to do about it since they had not been asked for a new model.
I was told to leave before I got to hear the end of that story. Or about the model itself. Anyone who has had a chance to listen, whatever happened?
avri
ps. sometimes i think the lawyers are getting interested in what we are doing, almost like stakeholders. not that i expect them to give up their hourly rates because they are stakeholders.
On 06-Jul-15 05:07, James Gannon wrote:
I listened to the last co-chairs lawyers’ call at; https://community.icann.org/pages/viewpage.action?pageId=53782602 <https://urldefense.proofpoint.com/v2/url?u=https-3A__community.icann.org_pag...> (I’m a glutton for punishment)
It was a short call and I’ll make a particular note that Leon and Mathieu made a point of not making any decisions on behalf of the whole group and made it clear anything requiring a decision must be made by the overall CCWG, so I was happy with that side of things myself, most of my own fears about not having a sub-group are somewhat assuaged.
So my paraphrasing and overview is:
· Lawyers working hard on the models for us collaboratively between the two firms since BA
· Lawyers are prepping a presentation to give to us ASAP before Paris if possible, that presentation will take the majority of a call, it can’t be done quickly, they need about 45mins uninterrupted to go through the presentation and then would likely need Q&A time after they present.
· Some small wording/clarifications to come back to the CCWG to make sure everyone’s on the same page
· Everyone feels Paris will be an important time for the models, lawyers will be ready for a grilling on the details of the models from us to flesh out any of our concerns/questions
Note that the above is all my very condensed overview of the conversations.
It seemed like a productive call to me.
-James
*From:*accountability-cross-community-bounces@icann.org [mailto:accountability-cross-community-bounces@icann.org] *On Behalf Of *Greg Shatan *Sent:* Monday, July 06, 2015 5:33 AM *To:* Carlos Raul *Cc:* accountability-cross-community@icann.org *Subject:* Re: [CCWG-ACCT] Who is managing the lawyers and what have they beenasked to do?
Carlos,
As the legal sub-team was disbanded, your guess is as good as mine.....
Greg
On Mon, Jul 6, 2015 at 12:27 AM, Carlos Raul <carlosraulg@gmail.com <mailto:carlosraulg@gmail.com <carlosraulg@gmail.com>>> wrote:
Thank you Greg!
It makes a lot of sense and I guess those are all good reasons as we hired them in the first place. What are the next steps now? What happened in the recent call?
Best regards
Carlos Raúl Gutiérrez
+506 8837 7176 <tel:%2B506%208837%207176>
Skype carlos.raulg
_________
Apartado 1571-1000
*COSTA RICA*
On Mon, Jul 6, 2015 at 12:02 AM, Greg Shatan <gregshatanipc@gmail.com <mailto:gregshatanipc@gmail.com <gregshatanipc@gmail.com>>> wrote:
Chris,
That was tried to some extent, at least in the CWG.
There are several substantial problems with that approach.
First, lawyers are not fungible. The particular legal skills, background and experience required for the issues before both WGs are fairly specific, and in some cases, very specific. The primary core competency needed here is corporate governance. While a number of lawyers in the community have a reasonable working knowledge of the area, at least in their home jurisdictions, I don't believe there are any who would say that this is their primary focus and expertise -- at least none who identified themselves to either WG. The second core competency required, especially in the CCWG, is non-profit law. Again there are a number of lawyers with a decent working knowledge of this fairly broad field, but not as a primary focus. There may be a couple of lawyers in the community who would claim this fairly broad field as a primary focus and expertise -- but none who became involved with either WG. This then becomes further narrowed by jurisdiction. Since ICANN is a California non-profit corporation, US corporate governance and non-profit experience is more relevant than experience from other jurisdictions, and California law corporate governance and non-profit experience is more relevant than that from other US jurisdictions. In my experience, the more a US lawyer focuses on a particular substantive area, the greater their knowledge of and comfort with state law issues in US state jurisdictions other than their own (e.g., someone who spend a majority of their time working in corporate governance will have a greater knowledge of the law, issues, approaches and trends outside their primary state of practice, while someone who spends a relatively small amount of time in the area will tend to feel less comfortable outside their home jurisdiction). (An exception is that many US lawyers have specific knowledge of certain Delaware corporate law issues, because Delaware often serves as the state of incorporation for entities operating elsewhere.)
Second, lawyers in the community will seldom be seen as neutral advisors, no matter how hard they try. They will tend to be seen as working from their point of view or stakeholder group or "special interest" or desired outcome, even if they are trying to be even-handed. Over the course of time, this balancing act would tend to become more untenable.
Third, the amount of time it would take to provide truly definitive legal advice (research, careful drafting, discussions with relevant "clients", etc.) would be prohibitive, even compared to the substantial amount of time it takes to provide reasonably well-informed and competent legal-based viewpoints in the course of either WG's work.
Fourth, in order to formally counsel the community, the lawyer or lawyers in question would have to enter into a formal attorney-client relationship. Under US law, an attorney-client relationship may inadvertently be created by the attorney's actions, so attorneys try to be careful about not providing formal legal advice without a formal engagement (sometimes providing an explicit "caveat" if they feel they might be getting too close to providing legal advice). If the attorney is employed by a corporation, they would likely be unable to take on such a representation due to the terms of their employment, and that is before getting to an exploration of conflict of interest issues. If the attorney is employed by a firm, the firm would have to sign off on the representation, again dealing with potential conflict issues.
Fifth, even if the above issues were all somehow resolved, it would be highly unlikely that any such attorney would provide substantial amounts of advice, written memos, counseling, etc. on a pro bono (unpaid) basis, especially given the time-consuming nature of the work. Pro bono advice and representation is generally accorded to individuals and entities that could not otherwise be able to pay for it. That is clearly not the case here, at least with ICANN taking financial responsibility. It would likely be very difficult to justify this to, e.g., a firm's pro bono committee, as a valid pro bono representation.
Sixth, if ICANN were not taking the role they are taking, it would be extremely difficult to identify the "client" in this situation. The "community" is a collection of sectors, mostly represented by various ICANN-created structures, which in turn have members of widely varying types (individuals, corporations, sovereigns, non-profits, IGOs, partnerships, etc.). This would also make it extremely difficult to enter into a formal counseling relationship with the "community."
Seventh, this is a sensitive, high-profile, transformative set of actions we are involved in, which is subject to an extraordinary amount of scrutiny, not least that of the NTIA and the US Congress. That eliminates any possibility of providing informal, off-the-cuff, reasonably well-informed but not quite expert, "non-advice" advice -- which might happen in a more obscure exercise. There's simply too much at stake.
Finally, I would say that a number of attorneys involved in one or both of the WGs are in fact providing a significant amount of legal knowledge and experience to the WGs, helping to frame issues, whether in terms of general leadership (e.g., Thomas, Leon, Becky) or more specifically in a "lawyer-as-client" capacity -- working with outside counsel, tackling the more legalistic issues, providing as much legal background and knowledge as possible without providing the type of formal legal advice that would tend to create an attorney-client relationship, etc. So I do think that many lawyers in the community are giving greatly of themselves in this process, even though they cannot and would not be able to formally be engaged by the community as its "counsel of record."
In sum, it might be a nice thought in theory, but it is no way a practical possibility.
Greg
On Sat, Jul 4, 2015 at 3:08 AM, CW Lists <lists@christopherwilkinson.eu <mailto:lists@christopherwilkinson.eu <lists@christopherwilkinson.eu>>> wrote:
Good morning:
I had decided not to enter this debate. But I am bound to say that the thought had occurred to me at the time, that there were more than enough qualified lawyers in this community that they could perfectly well have counselled … themselves.
CW
On 04 Jul 2015, at 08:41, Greg Shatan <gregshatanipc@gmail.com <mailto:gregshatanipc@gmail.com <gregshatanipc@gmail.com>>> wrote:
Wolfgang,
To your first point, the billing rates were clearly stated in the law firms' engagement letters.
To your second point, I'm sure we could all think of other projects and goals where the money could have been "better spent." You've stated yours. But that is not the proper test. This was and continues to be money we need to spend to achieve the goals we have set. Under different circumstances, perhaps it would be a different amount (or maybe none at all). But it was strongly felt at the outset that the group needed to have independent counsel. Clearly that counsel needed to have recognized expertise in the appropriate legal areas. As such, I believe we made excellent choices and have been very well represented.
As to your "better spent" test, I just had to have $4000.00 worth of emergency dental work done. This money definitely could have been "better spent" on a nice vacation, redecorating our living room or on donations to my favored charitable causes. But I had no choice, other than to choose which dentist and endodontist I went to, and I wasn't going to cut corners -- the dental work was a necessity. Similarly, the legal work we are getting is a necessity and whether we would have preferred to spend the money elsewhere is not merely irrelevant, it is an incorrect and inappropriate proposition. Many of us are investing vast quantities of time that could be "better spent" elsewhere as well, but we are willing (grudgingly sometimes) to spend the time it takes to get it right, because we believe it needs to be done. This is the appropriate measure, whether it comes to our time or counsels' time. If we believe in this project, we have to invest in it, and do what it takes to succeed.
Of course, this investment has to be managed wisely and cost-effectively, and by and large, I believe the CCWG has done that reasonably well -- not perfectly, but reasonably well and with "course corrections" along the way intended to improve that management. It's certainly fair to ask, as Robin has done, for a better understanding of that management as we go along. But asserting that the money could have been "better spent" elsewhere sets up a false test that we should not use to evaluate this important aspect of our work. Instead, we need to focus on whether the money was "well spent" on these critical legal services. If you have reason to believe it was not, that could be useful to know. That would at least be the right discussion to have.
Greg
On Sat, Jul 4, 2015 at 1:13 AM, "Kleinwächter, Wolfgang" <wolfgang.kleinwaechter@medienkomm.uni-halle.de <mailto:wolfgang.kleinwaechter@medienkomm.uni-halle.de <wolfgang.kleinwaechter@medienkomm.uni-halle.de>>> wrote:
HI,
and please if you ask outside lawyers, ask for the price tag in advance. Some of the money spend fo lawyers could have been spend better to suppport and enable Internet user and non-commercial groups in developing countries.
Wolfgang
-----Ursprüngliche Nachricht----- Von: accountability-cross-community-bounces@icann.org < mailto:accountability-cross-community-bounces@icann.org <accountability-cross-community-bounces@icann.org>> im Auftrag von Robin Gross Gesendet: Fr 03.07.2015 14:57 An: accountability-cross-community@icann.org <mailto:accountability-cross-community@icann.org <accountability-cross-community@icann.org>> Community Betreff: [CCWG-ACCT] Who is managing the lawyers and what have they beenasked to do?
After the legal sub-team was disbanded, I haven't been able to follow what communications are happening with CCWG and the independent lawyers we retained.
I understand the lawyers are currently "working on the various models" and will present something to us regarding that work soon. However, *what exactly* have the lawyers been asked to do and *who* asked them? If there are written instructions, may the group please see them? Who is now taking on the role of managing the outside attorneys for this group, including providing instructions and certifying legal work?
Sorry, but I'm really trying to understand what is happening, and there doesn't seem to be much information in the public on this (or if there is, I can't find it). Thanks for any information anyone can provide.
Best, Robin
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*Seun Ojedeji, Federal University Oye-Ekiti web: http://www.fuoye.edu.ng <https://urldefense.proofpoint.com/v2/url?u=http-3A__www.fuoye.edu.ng&d=AwMFa...> Mobile: +2348035233535 **alt email: <https://urldefense.proofpoint.com/v2/url?u=http-3A__goog-5F1872880453&d=AwMFaQ&c=MOptNlVtIETeDALC_lULrw&r=62cJFOifzm6X_GRlaq8Mo8TjDmrxdYahOP8WDDkMr4k&m=rX8zWSdUbF0XJ6RQyX5HABE7NaQIgAXHj6WfvEXkLh8&s=CxOnONdooeEh12LEyo_JAeNlU5cJx2oFUeA3bOAxdqE&e=>seun.ojedeji@fuoye.edu.ng <seun.ojedeji@fuoye.edu.ng>*
The key to understanding is humility - my view !
Hmm. I think it’s important to bear in mind that there was overwhelming consensus among the public comments to support the membership model. The detractors from the model, while important and perhaps critical, are not in the majority. I’m not sure this process speaks to how we better use counsel as much as how we achieve consensus on principles. From: accountability-cross-community-bounces@icann.org [mailto:accountability-cross-community-bounces@icann.org] On Behalf Of Seun Ojedeji Sent: Monday, July 6, 2015 3:50 PM To: Becky Burr Cc: accountability-cross-community@icann.org Subject: Re: [CCWG-ACCT] Who is managing the lawyers and what have they beenasked to do? Hi Becky, Thanks for asking, item 3 is actually in connection to the fact that such veto may not be possible without item 1(as I understood it) and that is why I said an indirect veto can happen not that I was entirely suggesting that those powers be off the table. It seem however that folks are only looking at the powers and not at what it will take to have them. By the way, I also did put in a reservation that we may not necessarily agree with those views but my concern is mainly that the ccwg does not spend so much time developing proposals that we know has certain implementation requirements that are not compatible with the ICANN community structure. I think we should learn from the the past (based on comments from the last PC) and utilize legal council and volunteer hours more effectively. FWIW speaking as participant. Regards On 6 Jul 2015 8:08 pm, "Burr, Becky" <Becky.Burr@neustar.biz<mailto:Becky.Burr@neustar.biz>> wrote: Seun, I am not sure why we would take direct budget/strat plan veto off the table. Could you explain? Thanks. Becky J. Beckwith Burr Neustar, Inc. / Deputy General Counsel and Chief Privacy Officer 1775 Pennsylvania Avenue NW, Washington, DC 20006 Office: + 1.202.533.2932<tel:%2B%201.202.533.2932> Mobile: +1.202.352.6367<tel:%2B1.202.352.6367> / becky.burr@neustar.biz<mailto:becky.burr@neustar.biz> / www.neustar.biz<http://www.neustar.biz> From: Seun Ojedeji <seun.ojedeji@gmail.com<mailto:seun.ojedeji@gmail.com>> Date: Monday, July 6, 2015 at 11:09 AM To: Robin Gross <robin@ipjustice.org<mailto:robin@ipjustice.org>> Cc: Accountability Community <accountability-cross-community@icann.org<mailto:accountability-cross-community@icann.org>> Subject: Re: [CCWG-ACCT] Who is managing the lawyers and what have they beenasked to do? Hi, I have no problem with having a new proposal presented. However it is important that there some adherence to basic principles on proposals that the ccwg would not want to explore. Three areas comes to mind: - Its my understanding that anything that will turn some/all of the SO/AC to members and thereby exposing them to legal challenge is not acceptable - Its my understanding that anything that allows removal of individual board member without the approval of the entire(or larger part) of the community is not acceptable - Its my understanding that a solution that allows direct community veto on certain elements like budget, strategic plan et all is not acceptable but an indirect enforcement could be considered (i.e using a power to get another power executed indirectly) Some/none of the above may be acceptable by us, but my point is that there should be some focus going forward, especially if the target of ICANN54 is to be meet Regards On Mon, Jul 6, 2015 at 3:37 PM, Robin Gross <robin@ipjustice.org<mailto:robin@ipjustice.org>> wrote: I would also like to hear what they propose at this stage. I really don't see how it could hurt to have another proposal to consider. Larry Strickling did say he wanted us to be sure we examined all the options carefully. Thanks, Robin On Jul 6, 2015, at 7:32 AM, Greg Shatan wrote: I agree. We should have the benefit of their thoughts. Greg On Mon, Jul 6, 2015 at 9:38 AM, Jordan Carter <jordan@internetnz.net.nz<mailto:jordan@internetnz.net.nz>> wrote: Well, I would really really like to see what the creative thinking they have done has suggested. I trust our ability as a group to make decisions, and do not believe we should cut off input from any direction... Jordan On 7 July 2015 at 01:13, James Gannon <james@cyberinvasion.net<mailto:james@cyberinvasion.net>> wrote: Hey Avri, Yes the 3rd model was brought up, and the lawyers feel that it might be a cleaner way for us to get the powers that we need. But without a call from the CCWG to present it they feel that its not their position to propose a model on their own initiative. Personally i would like to see what they have come up with but the CCWG would need to ask as an overall group for the chairs to direct them to give some more information on the model if we wanted it. I think if after we hear from them on Tuesdays call we still feel we might have some shortcomings that it might be the time to ask them about the 3rd option. Also +1 I think they are really enjoying the work and are finding themselves getting more and more involved as we go on, which is great for the CCWG as the more background and details they know the better that are able to give us solid well reasoned advice in my opinion. -James On 6 Jul 2015, at 13:19, Avri Doria <avri@acm.org<mailto:avri@acm.org>> wrote: Hi, I have not had a chance to get back to the recording of the call. Not sure I will, that time was the time I had for that call and that is why i was listening then. In any case, the lawyers were talking about a new model they had come up with, but not knowing what to do about it since they had not been asked for a new model. I was told to leave before I got to hear the end of that story. Or about the model itself. Anyone who has had a chance to listen, whatever happened? avri ps. sometimes i think the lawyers are getting interested in what we are doing, almost like stakeholders. not that i expect them to give up their hourly rates because they are stakeholders. On 06-Jul-15 05:07, James Gannon wrote: I listened to the last co-chairs lawyers’ call at; https://community.icann.org/pages/viewpage.action?pageId=53782602<https://urldefense.proofpoint.com/v2/url?u=https-3A__community.icann.org_pages_viewpage.action-3FpageId-3D53782602&d=AwMFaQ&c=MOptNlVtIETeDALC_lULrw&r=62cJFOifzm6X_GRlaq8Mo8TjDmrxdYahOP8WDDkMr4k&m=rX8zWSdUbF0XJ6RQyX5HABE7NaQIgAXHj6WfvEXkLh8&s=5REzt6Gk0Mt5evnhe_F8O87Kpc4hX8wql7vP--WYsnQ&e=> (I’m a glutton for punishment) It was a short call and I’ll make a particular note that Leon and Mathieu made a point of not making any decisions on behalf of the whole group and made it clear anything requiring a decision must be made by the overall CCWG, so I was happy with that side of things myself, most of my own fears about not having a sub-group are somewhat assuaged. So my paraphrasing and overview is: · Lawyers working hard on the models for us collaboratively between the two firms since BA · Lawyers are prepping a presentation to give to us ASAP before Paris if possible, that presentation will take the majority of a call, it can’t be done quickly, they need about 45mins uninterrupted to go through the presentation and then would likely need Q&A time after they present. · Some small wording/clarifications to come back to the CCWG to make sure everyone’s on the same page · Everyone feels Paris will be an important time for the models, lawyers will be ready for a grilling on the details of the models from us to flesh out any of our concerns/questions Note that the above is all my very condensed overview of the conversations. It seemed like a productive call to me. -James *From:*accountability-cross-community-bounces@icann.org<mailto:accountability-cross-community-bounces@icann.org> [mailto:accountability-cross-community-bounces@icann.org<mailto:accountability-cross-community-bounces@icann.org>] *On Behalf Of *Greg Shatan *Sent:* Monday, July 06, 2015 5:33 AM *To:* Carlos Raul *Cc:* accountability-cross-community@icann.org<mailto:accountability-cross-community@icann.org> *Subject:* Re: [CCWG-ACCT] Who is managing the lawyers and what have they beenasked to do? Carlos, As the legal sub-team was disbanded, your guess is as good as mine..... Greg On Mon, Jul 6, 2015 at 12:27 AM, Carlos Raul <carlosraulg@gmail.com<mailto:carlosraulg@gmail.com> <mailto:carlosraulg@gmail.com>> wrote: Thank you Greg! It makes a lot of sense and I guess those are all good reasons as we hired them in the first place. What are the next steps now? What happened in the recent call? Best regards Carlos Raúl Gutiérrez +506 8837 7176<tel:%2B506%208837%207176> <tel:%2B506%208837%207176> Skype carlos.raulg _________ Apartado 1571-1000 *COSTA RICA* On Mon, Jul 6, 2015 at 12:02 AM, Greg Shatan <gregshatanipc@gmail.com<mailto:gregshatanipc@gmail.com> <mailto:gregshatanipc@gmail.com>> wrote: Chris, That was tried to some extent, at least in the CWG. There are several substantial problems with that approach. First, lawyers are not fungible. The particular legal skills, background and experience required for the issues before both WGs are fairly specific, and in some cases, very specific. The primary core competency needed here is corporate governance. While a number of lawyers in the community have a reasonable working knowledge of the area, at least in their home jurisdictions, I don't believe there are any who would say that this is their primary focus and expertise -- at least none who identified themselves to either WG. The second core competency required, especially in the CCWG, is non-profit law. Again there are a number of lawyers with a decent working knowledge of this fairly broad field, but not as a primary focus. There may be a couple of lawyers in the community who would claim this fairly broad field as a primary focus and expertise -- but none who became involved with either WG. This then becomes further narrowed by jurisdiction. Since ICANN is a California non-profit corporation, US corporate governance and non-profit experience is more relevant than experience from other jurisdictions, and California law corporate governance and non-profit experience is more relevant than that from other US jurisdictions. In my experience, the more a US lawyer focuses on a particular substantive area, the greater their knowledge of and comfort with state law issues in US state jurisdictions other than their own (e.g., someone who spend a majority of their time working in corporate governance will have a greater knowledge of the law, issues, approaches and trends outside their primary state of practice, while someone who spends a relatively small amount of time in the area will tend to feel less comfortable outside their home jurisdiction). (An exception is that many US lawyers have specific knowledge of certain Delaware corporate law issues, because Delaware often serves as the state of incorporation for entities operating elsewhere.) Second, lawyers in the community will seldom be seen as neutral advisors, no matter how hard they try. They will tend to be seen as working from their point of view or stakeholder group or "special interest" or desired outcome, even if they are trying to be even-handed. Over the course of time, this balancing act would tend to become more untenable. Third, the amount of time it would take to provide truly definitive legal advice (research, careful drafting, discussions with relevant "clients", etc.) would be prohibitive, even compared to the substantial amount of time it takes to provide reasonably well-informed and competent legal-based viewpoints in the course of either WG's work. Fourth, in order to formally counsel the community, the lawyer or lawyers in question would have to enter into a formal attorney-client relationship. Under US law, an attorney-client relationship may inadvertently be created by the attorney's actions, so attorneys try to be careful about not providing formal legal advice without a formal engagement (sometimes providing an explicit "caveat" if they feel they might be getting too close to providing legal advice). If the attorney is employed by a corporation, they would likely be unable to take on such a representation due to the terms of their employment, and that is before getting to an exploration of conflict of interest issues. If the attorney is employed by a firm, the firm would have to sign off on the representation, again dealing with potential conflict issues. Fifth, even if the above issues were all somehow resolved, it would be highly unlikely that any such attorney would provide substantial amounts of advice, written memos, counseling, etc. on a pro bono (unpaid) basis, especially given the time-consuming nature of the work. Pro bono advice and representation is generally accorded to individuals and entities that could not otherwise be able to pay for it. That is clearly not the case here, at least with ICANN taking financial responsibility. It would likely be very difficult to justify this to, e.g., a firm's pro bono committee, as a valid pro bono representation. Sixth, if ICANN were not taking the role they are taking, it would be extremely difficult to identify the "client" in this situation. The "community" is a collection of sectors, mostly represented by various ICANN-created structures, which in turn have members of widely varying types (individuals, corporations, sovereigns, non-profits, IGOs, partnerships, etc.). This would also make it extremely difficult to enter into a formal counseling relationship with the "community." Seventh, this is a sensitive, high-profile, transformative set of actions we are involved in, which is subject to an extraordinary amount of scrutiny, not least that of the NTIA and the US Congress. That eliminates any possibility of providing informal, off-the-cuff, reasonably well-informed but not quite expert, "non-advice" advice -- which might happen in a more obscure exercise. There's simply too much at stake. Finally, I would say that a number of attorneys involved in one or both of the WGs are in fact providing a significant amount of legal knowledge and experience to the WGs, helping to frame issues, whether in terms of general leadership (e.g., Thomas, Leon, Becky) or more specifically in a "lawyer-as-client" capacity -- working with outside counsel, tackling the more legalistic issues, providing as much legal background and knowledge as possible without providing the type of formal legal advice that would tend to create an attorney-client relationship, etc. So I do think that many lawyers in the community are giving greatly of themselves in this process, even though they cannot and would not be able to formally be engaged by the community as its "counsel of record." In sum, it might be a nice thought in theory, but it is no way a practical possibility. Greg On Sat, Jul 4, 2015 at 3:08 AM, CW Lists <lists@christopherwilkinson.eu<mailto:lists@christopherwilkinson.eu> <mailto:lists@christopherwilkinson.eu>> wrote: Good morning: I had decided not to enter this debate. But I am bound to say that the thought had occurred to me at the time, that there were more than enough qualified lawyers in this community that they could perfectly well have counselled … themselves. CW On 04 Jul 2015, at 08:41, Greg Shatan <gregshatanipc@gmail.com<mailto:gregshatanipc@gmail.com> <mailto:gregshatanipc@gmail.com>> wrote: Wolfgang, To your first point, the billing rates were clearly stated in the law firms' engagement letters. To your second point, I'm sure we could all think of other projects and goals where the money could have been "better spent." You've stated yours. But that is not the proper test. This was and continues to be money we need to spend to achieve the goals we have set. Under different circumstances, perhaps it would be a different amount (or maybe none at all). But it was strongly felt at the outset that the group needed to have independent counsel. Clearly that counsel needed to have recognized expertise in the appropriate legal areas. As such, I believe we made excellent choices and have been very well represented. As to your "better spent" test, I just had to have $4000.00 worth of emergency dental work done. This money definitely could have been "better spent" on a nice vacation, redecorating our living room or on donations to my favored charitable causes. But I had no choice, other than to choose which dentist and endodontist I went to, and I wasn't going to cut corners -- the dental work was a necessity. Similarly, the legal work we are getting is a necessity and whether we would have preferred to spend the money elsewhere is not merely irrelevant, it is an incorrect and inappropriate proposition. Many of us are investing vast quantities of time that could be "better spent" elsewhere as well, but we are willing (grudgingly sometimes) to spend the time it takes to get it right, because we believe it needs to be done. This is the appropriate measure, whether it comes to our time or counsels' time. If we believe in this project, we have to invest in it, and do what it takes to succeed. Of course, this investment has to be managed wisely and cost-effectively, and by and large, I believe the CCWG has done that reasonably well -- not perfectly, but reasonably well and with "course corrections" along the way intended to improve that management. It's certainly fair to ask, as Robin has done, for a better understanding of that management as we go along. But asserting that the money could have been "better spent" elsewhere sets up a false test that we should not use to evaluate this important aspect of our work. Instead, we need to focus on whether the money was "well spent" on these critical legal services. If you have reason to believe it was not, that could be useful to know. That would at least be the right discussion to have. Greg On Sat, Jul 4, 2015 at 1:13 AM, "Kleinwächter, Wolfgang" <wolfgang.kleinwaechter@medienkomm.uni-halle.de<mailto:wolfgang.kleinwaechter@medienkomm.uni-halle.de> <mailto:wolfgang.kleinwaechter@medienkomm.uni-halle.de>> wrote: HI, and please if you ask outside lawyers, ask for the price tag in advance. Some of the money spend fo lawyers could have been spend better to suppport and enable Internet user and non-commercial groups in developing countries. Wolfgang -----Ursprüngliche Nachricht----- Von: accountability-cross-community-bounces@icann.org<mailto:accountability-cross-community-bounces@icann.org> <mailto:accountability-cross-community-bounces@icann.org> im Auftrag von Robin Gross Gesendet: Fr 03.07.2015 14:57 An: accountability-cross-community@icann.org<mailto:accountability-cross-community@icann.org> <mailto:accountability-cross-community@icann.org> Community Betreff: [CCWG-ACCT] Who is managing the lawyers and what have they beenasked to do? After the legal sub-team was disbanded, I haven't been able to follow what communications are happening with CCWG and the independent lawyers we retained. I understand the lawyers are currently "working on the various models" and will present something to us regarding that work soon. However, *what exactly* have the lawyers been asked to do and *who* asked them? If there are written instructions, may the group please see them? Who is now taking on the role of managing the outside attorneys for this group, including providing instructions and certifying legal work? Sorry, but I'm really trying to understand what is happening, and there doesn't seem to be much information in the public on this (or if there is, I can't find it). Thanks for any information anyone can provide. 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Jordan Carter Chief Executive InternetNZ 04 495 2118 (office) | +64 21 442 649<tel:%2B64%2021%20442%20649> (mob) jordan@internetnz.net.nz<mailto:jordan@internetnz.net.nz> Skype: jordancarter A better world through a better Internet _______________________________________________ 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<https://urldefense.proofpoint.com/v2/url?u=https-3A__mm.icann.org_mailman_listinfo_accountability-2Dcross-2Dcommunity&d=AwMFaQ&c=MOptNlVtIETeDALC_lULrw&r=62cJFOifzm6X_GRlaq8Mo8TjDmrxdYahOP8WDDkMr4k&m=rX8zWSdUbF0XJ6RQyX5HABE7NaQIgAXHj6WfvEXkLh8&s=Yqq66BmsF0-t9R7GjryZsv1k1c4OBxUhFvNoM2kB7g8&e=> _______________________________________________ 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<https://urldefense.proofpoint.com/v2/url?u=https-3A__mm.icann.org_mailman_listinfo_accountability-2Dcross-2Dcommunity&d=AwMFaQ&c=MOptNlVtIETeDALC_lULrw&r=62cJFOifzm6X_GRlaq8Mo8TjDmrxdYahOP8WDDkMr4k&m=rX8zWSdUbF0XJ6RQyX5HABE7NaQIgAXHj6WfvEXkLh8&s=Yqq66BmsF0-t9R7GjryZsv1k1c4OBxUhFvNoM2kB7g8&e=> _______________________________________________ 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<https://urldefense.proofpoint.com/v2/url?u=https-3A__mm.icann.org_mailman_listinfo_accountability-2Dcross-2Dcommunity&d=AwMFaQ&c=MOptNlVtIETeDALC_lULrw&r=62cJFOifzm6X_GRlaq8Mo8TjDmrxdYahOP8WDDkMr4k&m=rX8zWSdUbF0XJ6RQyX5HABE7NaQIgAXHj6WfvEXkLh8&s=Yqq66BmsF0-t9R7GjryZsv1k1c4OBxUhFvNoM2kB7g8&e=> -- ------------------------------------------------------------------------ Seun Ojedeji, Federal University Oye-Ekiti web: http://www.fuoye.edu.ng<https://urldefense.proofpoint.com/v2/url?u=http-3A__www.fuoye.edu.ng&d=AwMFaQ&c=MOptNlVtIETeDALC_lULrw&r=62cJFOifzm6X_GRlaq8Mo8TjDmrxdYahOP8WDDkMr4k&m=rX8zWSdUbF0XJ6RQyX5HABE7NaQIgAXHj6WfvEXkLh8&s=JO_X0eTa_TpfkJXFV8e7p5fCVLDvN5atmTw0JvZra7w&e=> Mobile: +2348035233535 alt email:seun.ojedeji@fuoye.edu.ng<mailto:seun.ojedeji@fuoye.edu.ng> The key to understanding is humility - my view !
Are participants not allowed to participate? (Seems oxymoronish if not.) I, for one, do not intend to add such disclaimers each time I participate. Kind regards Nigel Roberts, http://gg.gg/nigel Participant (ok, just this *once*!)
*From:*accountability-cross-community-bounces@icann.org [mailto:accountability-cross-community-bounces@icann.org] *On Behalf Of *Seun Ojedeji *Sent:* Monday, July 6, 2015 3:50 PM *To:* Becky Burr *Cc:* accountability-cross-community@icann.org *Subject:* Re: [CCWG-ACCT] Who is managing the lawyers and what have they beenasked to do?
..
FWIW speaking as participant.
I’m definitely in favor of utilizing volunteer hours efficiently -) I think we have consensus about the ways in which the community wants to be empowered – Board and member recall, the ability to reject Bylaws amendments, strategic plan, and budget, and effective dispute resolution mechanisms. We gave the lawyers lots to think about in BA about how we get and exercise that authority, and I am looking forward to hearing from them tomorrow. 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<mailto:becky.burr@neustar.biz> / www.neustar.biz From: Jonathan Zuck <jzuck@actonline.org<mailto:jzuck@actonline.org>> Date: Monday, July 6, 2015 at 4:04 PM To: Seun Ojedeji <seun.ojedeji@gmail.com<mailto:seun.ojedeji@gmail.com>>, Becky Burr <becky.burr@neustar.biz<mailto:becky.burr@neustar.biz>> Cc: Accountability Community <accountability-cross-community@icann.org<mailto:accountability-cross-community@icann.org>> Subject: RE: [CCWG-ACCT] Who is managing the lawyers and what have they beenasked to do? Hmm. I think it’s important to bear in mind that there was overwhelming consensus among the public comments to support the membership model. The detractors from the model, while important and perhaps critical, are not in the majority. I’m not sure this process speaks to how we better use counsel as much as how we achieve consensus on principles. From: accountability-cross-community-bounces@icann.org<mailto:accountability-cross-community-bounces@icann.org> [mailto:accountability-cross-community-bounces@icann.org] On Behalf Of Seun Ojedeji Sent: Monday, July 6, 2015 3:50 PM To: Becky Burr Cc: accountability-cross-community@icann.org<mailto:accountability-cross-community@icann.org> Subject: Re: [CCWG-ACCT] Who is managing the lawyers and what have they beenasked to do? Hi Becky, Thanks for asking, item 3 is actually in connection to the fact that such veto may not be possible without item 1(as I understood it) and that is why I said an indirect veto can happen not that I was entirely suggesting that those powers be off the table. It seem however that folks are only looking at the powers and not at what it will take to have them. By the way, I also did put in a reservation that we may not necessarily agree with those views but my concern is mainly that the ccwg does not spend so much time developing proposals that we know has certain implementation requirements that are not compatible with the ICANN community structure. I think we should learn from the the past (based on comments from the last PC) and utilize legal council and volunteer hours more effectively. FWIW speaking as participant. Regards On 6 Jul 2015 8:08 pm, "Burr, Becky" <Becky.Burr@neustar.biz<mailto:Becky.Burr@neustar.biz>> wrote: Seun, I am not sure why we would take direct budget/strat plan veto off the table. Could you explain? Thanks. Becky J. Beckwith Burr Neustar, Inc. / Deputy General Counsel and Chief Privacy Officer 1775 Pennsylvania Avenue NW, Washington, DC 20006 Office: + 1.202.533.2932<tel:%2B%201.202.533.2932> Mobile: +1.202.352.6367<tel:%2B1.202.352.6367> / becky.burr@neustar.biz<mailto:becky.burr@neustar.biz> / www.neustar.biz<http://www.neustar.biz> From: Seun Ojedeji <seun.ojedeji@gmail.com<mailto:seun.ojedeji@gmail.com>> Date: Monday, July 6, 2015 at 11:09 AM To: Robin Gross <robin@ipjustice.org<mailto:robin@ipjustice.org>> Cc: Accountability Community <accountability-cross-community@icann.org<mailto:accountability-cross-community@icann.org>> Subject: Re: [CCWG-ACCT] Who is managing the lawyers and what have they beenasked to do? Hi, I have no problem with having a new proposal presented. However it is important that there some adherence to basic principles on proposals that the ccwg would not want to explore. Three areas comes to mind: - Its my understanding that anything that will turn some/all of the SO/AC to members and thereby exposing them to legal challenge is not acceptable - Its my understanding that anything that allows removal of individual board member without the approval of the entire(or larger part) of the community is not acceptable - Its my understanding that a solution that allows direct community veto on certain elements like budget, strategic plan et all is not acceptable but an indirect enforcement could be considered (i.e using a power to get another power executed indirectly) Some/none of the above may be acceptable by us, but my point is that there should be some focus going forward, especially if the target of ICANN54 is to be meet Regards On Mon, Jul 6, 2015 at 3:37 PM, Robin Gross <robin@ipjustice.org<mailto:robin@ipjustice.org>> wrote: I would also like to hear what they propose at this stage. I really don't see how it could hurt to have another proposal to consider. Larry Strickling did say he wanted us to be sure we examined all the options carefully. Thanks, Robin On Jul 6, 2015, at 7:32 AM, Greg Shatan wrote: I agree. We should have the benefit of their thoughts. Greg On Mon, Jul 6, 2015 at 9:38 AM, Jordan Carter <jordan@internetnz.net.nz<mailto:jordan@internetnz.net.nz>> wrote: Well, I would really really like to see what the creative thinking they have done has suggested. I trust our ability as a group to make decisions, and do not believe we should cut off input from any direction... Jordan On 7 July 2015 at 01:13, James Gannon <james@cyberinvasion.net<mailto:james@cyberinvasion.net>> wrote: Hey Avri, Yes the 3rd model was brought up, and the lawyers feel that it might be a cleaner way for us to get the powers that we need. But without a call from the CCWG to present it they feel that its not their position to propose a model on their own initiative. Personally i would like to see what they have come up with but the CCWG would need to ask as an overall group for the chairs to direct them to give some more information on the model if we wanted it. I think if after we hear from them on Tuesdays call we still feel we might have some shortcomings that it might be the time to ask them about the 3rd option. Also +1 I think they are really enjoying the work and are finding themselves getting more and more involved as we go on, which is great for the CCWG as the more background and details they know the better that are able to give us solid well reasoned advice in my opinion. -James On 6 Jul 2015, at 13:19, Avri Doria <avri@acm.org<mailto:avri@acm.org>> wrote: Hi, I have not had a chance to get back to the recording of the call. Not sure I will, that time was the time I had for that call and that is why i was listening then. In any case, the lawyers were talking about a new model they had come up with, but not knowing what to do about it since they had not been asked for a new model. I was told to leave before I got to hear the end of that story. Or about the model itself. Anyone who has had a chance to listen, whatever happened? avri ps. sometimes i think the lawyers are getting interested in what we are doing, almost like stakeholders. not that i expect them to give up their hourly rates because they are stakeholders. On 06-Jul-15 05:07, James Gannon wrote: I listened to the last co-chairs lawyers’ call at; https://community.icann.org/pages/viewpage.action?pageId=53782602<https://urldefense.proofpoint.com/v2/url?u=https-3A__community.icann.org_pages_viewpage.action-3FpageId-3D53782602&d=AwMFaQ&c=MOptNlVtIETeDALC_lULrw&r=62cJFOifzm6X_GRlaq8Mo8TjDmrxdYahOP8WDDkMr4k&m=rX8zWSdUbF0XJ6RQyX5HABE7NaQIgAXHj6WfvEXkLh8&s=5REzt6Gk0Mt5evnhe_F8O87Kpc4hX8wql7vP--WYsnQ&e=> (I’m a glutton for punishment) It was a short call and I’ll make a particular note that Leon and Mathieu made a point of not making any decisions on behalf of the whole group and made it clear anything requiring a decision must be made by the overall CCWG, so I was happy with that side of things myself, most of my own fears about not having a sub-group are somewhat assuaged. So my paraphrasing and overview is: · Lawyers working hard on the models for us collaboratively between the two firms since BA · Lawyers are prepping a presentation to give to us ASAP before Paris if possible, that presentation will take the majority of a call, it can’t be done quickly, they need about 45mins uninterrupted to go through the presentation and then would likely need Q&A time after they present. · Some small wording/clarifications to come back to the CCWG to make sure everyone’s on the same page · Everyone feels Paris will be an important time for the models, lawyers will be ready for a grilling on the details of the models from us to flesh out any of our concerns/questions Note that the above is all my very condensed overview of the conversations. It seemed like a productive call to me. -James *From:*accountability-cross-community-bounces@icann.org<mailto:accountability-cross-community-bounces@icann.org> [mailto:accountability-cross-community-bounces@icann.org<mailto:accountability-cross-community-bounces@icann.org>] *On Behalf Of *Greg Shatan *Sent:* Monday, July 06, 2015 5:33 AM *To:* Carlos Raul *Cc:* accountability-cross-community@icann.org<mailto:accountability-cross-community@icann.org> *Subject:* Re: [CCWG-ACCT] Who is managing the lawyers and what have they beenasked to do? Carlos, As the legal sub-team was disbanded, your guess is as good as mine..... Greg On Mon, Jul 6, 2015 at 12:27 AM, Carlos Raul <carlosraulg@gmail.com<mailto:carlosraulg@gmail.com> <mailto:carlosraulg@gmail.com>> wrote: Thank you Greg! It makes a lot of sense and I guess those are all good reasons as we hired them in the first place. What are the next steps now? What happened in the recent call? Best regards Carlos Raúl Gutiérrez +506 8837 7176<tel:%2B506%208837%207176> <tel:%2B506%208837%207176> Skype carlos.raulg _________ Apartado 1571-1000 *COSTA RICA* On Mon, Jul 6, 2015 at 12:02 AM, Greg Shatan <gregshatanipc@gmail.com<mailto:gregshatanipc@gmail.com> <mailto:gregshatanipc@gmail.com>> wrote: Chris, That was tried to some extent, at least in the CWG. There are several substantial problems with that approach. First, lawyers are not fungible. The particular legal skills, background and experience required for the issues before both WGs are fairly specific, and in some cases, very specific. The primary core competency needed here is corporate governance. While a number of lawyers in the community have a reasonable working knowledge of the area, at least in their home jurisdictions, I don't believe there are any who would say that this is their primary focus and expertise -- at least none who identified themselves to either WG. The second core competency required, especially in the CCWG, is non-profit law. Again there are a number of lawyers with a decent working knowledge of this fairly broad field, but not as a primary focus. There may be a couple of lawyers in the community who would claim this fairly broad field as a primary focus and expertise -- but none who became involved with either WG. This then becomes further narrowed by jurisdiction. Since ICANN is a California non-profit corporation, US corporate governance and non-profit experience is more relevant than experience from other jurisdictions, and California law corporate governance and non-profit experience is more relevant than that from other US jurisdictions. In my experience, the more a US lawyer focuses on a particular substantive area, the greater their knowledge of and comfort with state law issues in US state jurisdictions other than their own (e.g., someone who spend a majority of their time working in corporate governance will have a greater knowledge of the law, issues, approaches and trends outside their primary state of practice, while someone who spends a relatively small amount of time in the area will tend to feel less comfortable outside their home jurisdiction). (An exception is that many US lawyers have specific knowledge of certain Delaware corporate law issues, because Delaware often serves as the state of incorporation for entities operating elsewhere.) Second, lawyers in the community will seldom be seen as neutral advisors, no matter how hard they try. They will tend to be seen as working from their point of view or stakeholder group or "special interest" or desired outcome, even if they are trying to be even-handed. Over the course of time, this balancing act would tend to become more untenable. Third, the amount of time it would take to provide truly definitive legal advice (research, careful drafting, discussions with relevant "clients", etc.) would be prohibitive, even compared to the substantial amount of time it takes to provide reasonably well-informed and competent legal-based viewpoints in the course of either WG's work. Fourth, in order to formally counsel the community, the lawyer or lawyers in question would have to enter into a formal attorney-client relationship. Under US law, an attorney-client relationship may inadvertently be created by the attorney's actions, so attorneys try to be careful about not providing formal legal advice without a formal engagement (sometimes providing an explicit "caveat" if they feel they might be getting too close to providing legal advice). If the attorney is employed by a corporation, they would likely be unable to take on such a representation due to the terms of their employment, and that is before getting to an exploration of conflict of interest issues. If the attorney is employed by a firm, the firm would have to sign off on the representation, again dealing with potential conflict issues. Fifth, even if the above issues were all somehow resolved, it would be highly unlikely that any such attorney would provide substantial amounts of advice, written memos, counseling, etc. on a pro bono (unpaid) basis, especially given the time-consuming nature of the work. Pro bono advice and representation is generally accorded to individuals and entities that could not otherwise be able to pay for it. That is clearly not the case here, at least with ICANN taking financial responsibility. It would likely be very difficult to justify this to, e.g., a firm's pro bono committee, as a valid pro bono representation. Sixth, if ICANN were not taking the role they are taking, it would be extremely difficult to identify the "client" in this situation. The "community" is a collection of sectors, mostly represented by various ICANN-created structures, which in turn have members of widely varying types (individuals, corporations, sovereigns, non-profits, IGOs, partnerships, etc.). This would also make it extremely difficult to enter into a formal counseling relationship with the "community." Seventh, this is a sensitive, high-profile, transformative set of actions we are involved in, which is subject to an extraordinary amount of scrutiny, not least that of the NTIA and the US Congress. That eliminates any possibility of providing informal, off-the-cuff, reasonably well-informed but not quite expert, "non-advice" advice -- which might happen in a more obscure exercise. There's simply too much at stake. Finally, I would say that a number of attorneys involved in one or both of the WGs are in fact providing a significant amount of legal knowledge and experience to the WGs, helping to frame issues, whether in terms of general leadership (e.g., Thomas, Leon, Becky) or more specifically in a "lawyer-as-client" capacity -- working with outside counsel, tackling the more legalistic issues, providing as much legal background and knowledge as possible without providing the type of formal legal advice that would tend to create an attorney-client relationship, etc. So I do think that many lawyers in the community are giving greatly of themselves in this process, even though they cannot and would not be able to formally be engaged by the community as its "counsel of record." In sum, it might be a nice thought in theory, but it is no way a practical possibility. Greg On Sat, Jul 4, 2015 at 3:08 AM, CW Lists <lists@christopherwilkinson.eu<mailto:lists@christopherwilkinson.eu> <mailto:lists@christopherwilkinson.eu>> wrote: Good morning: I had decided not to enter this debate. But I am bound to say that the thought had occurred to me at the time, that there were more than enough qualified lawyers in this community that they could perfectly well have counselled … themselves. CW On 04 Jul 2015, at 08:41, Greg Shatan <gregshatanipc@gmail.com<mailto:gregshatanipc@gmail.com> <mailto:gregshatanipc@gmail.com>> wrote: Wolfgang, To your first point, the billing rates were clearly stated in the law firms' engagement letters. To your second point, I'm sure we could all think of other projects and goals where the money could have been "better spent." You've stated yours. But that is not the proper test. This was and continues to be money we need to spend to achieve the goals we have set. Under different circumstances, perhaps it would be a different amount (or maybe none at all). But it was strongly felt at the outset that the group needed to have independent counsel. Clearly that counsel needed to have recognized expertise in the appropriate legal areas. As such, I believe we made excellent choices and have been very well represented. As to your "better spent" test, I just had to have $4000.00 worth of emergency dental work done. This money definitely could have been "better spent" on a nice vacation, redecorating our living room or on donations to my favored charitable causes. But I had no choice, other than to choose which dentist and endodontist I went to, and I wasn't going to cut corners -- the dental work was a necessity. Similarly, the legal work we are getting is a necessity and whether we would have preferred to spend the money elsewhere is not merely irrelevant, it is an incorrect and inappropriate proposition. Many of us are investing vast quantities of time that could be "better spent" elsewhere as well, but we are willing (grudgingly sometimes) to spend the time it takes to get it right, because we believe it needs to be done. This is the appropriate measure, whether it comes to our time or counsels' time. If we believe in this project, we have to invest in it, and do what it takes to succeed. Of course, this investment has to be managed wisely and cost-effectively, and by and large, I believe the CCWG has done that reasonably well -- not perfectly, but reasonably well and with "course corrections" along the way intended to improve that management. It's certainly fair to ask, as Robin has done, for a better understanding of that management as we go along. But asserting that the money could have been "better spent" elsewhere sets up a false test that we should not use to evaluate this important aspect of our work. Instead, we need to focus on whether the money was "well spent" on these critical legal services. If you have reason to believe it was not, that could be useful to know. That would at least be the right discussion to have. Greg On Sat, Jul 4, 2015 at 1:13 AM, "Kleinwächter, Wolfgang" <wolfgang.kleinwaechter@medienkomm.uni-halle.de<mailto:wolfgang.kleinwaechter@medienkomm.uni-halle.de> <mailto:wolfgang.kleinwaechter@medienkomm.uni-halle.de>> wrote: HI, and please if you ask outside lawyers, ask for the price tag in advance. Some of the money spend fo lawyers could have been spend better to suppport and enable Internet user and non-commercial groups in developing countries. Wolfgang -----Ursprüngliche Nachricht----- Von: accountability-cross-community-bounces@icann.org<mailto:accountability-cross-community-bounces@icann.org> <mailto:accountability-cross-community-bounces@icann.org> im Auftrag von Robin Gross Gesendet: Fr 03.07.2015 14:57 An: accountability-cross-community@icann.org<mailto:accountability-cross-community@icann.org> <mailto:accountability-cross-community@icann.org> Community Betreff: [CCWG-ACCT] Who is managing the lawyers and what have they beenasked to do? After the legal sub-team was disbanded, I haven't been able to follow what communications are happening with CCWG and the independent lawyers we retained. I understand the lawyers are currently "working on the various models" and will present something to us regarding that work soon. However, *what exactly* have the lawyers been asked to do and *who* asked them? If there are written instructions, may the group please see them? Who is now taking on the role of managing the outside attorneys for this group, including providing instructions and certifying legal work? Sorry, but I'm really trying to understand what is happening, and there doesn't seem to be much information in the public on this (or if there is, I can't find it). Thanks for any information anyone can provide. Best, Robin _______________________________________________ Accountability-Cross-Community mailing list Accountability-Cross-Community@icann.org<mailto:Accountability-Cross-Community@icann.org> <mailto:Accountability-Cross-Community@icann.org> https://mm.icann.org/mailman/listinfo/accountability-cross-community<https://urldefense.proofpoint.com/v2/url?u=https-3A__mm.icann.org_mailman_listinfo_accountability-2Dcross-2Dcommunity&d=AwMFaQ&c=MOptNlVtIETeDALC_lULrw&r=62cJFOifzm6X_GRlaq8Mo8TjDmrxdYahOP8WDDkMr4k&m=rX8zWSdUbF0XJ6RQyX5HABE7NaQIgAXHj6WfvEXkLh8&s=Yqq66BmsF0-t9R7GjryZsv1k1c4OBxUhFvNoM2kB7g8&e=> _______________________________________________ Accountability-Cross-Community mailing list Accountability-Cross-Community@icann.org<mailto:Accountability-Cross-Community@icann.org> <mailto:Accountability-Cross-Community@icann.org> 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Jordan Carter Chief Executive InternetNZ 04 495 2118 (office) | +64 21 442 649<tel:%2B64%2021%20442%20649> (mob) jordan@internetnz.net.nz<mailto:jordan@internetnz.net.nz> Skype: jordancarter A better world through a better Internet _______________________________________________ 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<https://urldefense.proofpoint.com/v2/url?u=https-3A__mm.icann.org_mailman_listinfo_accountability-2Dcross-2Dcommunity&d=AwMFaQ&c=MOptNlVtIETeDALC_lULrw&r=62cJFOifzm6X_GRlaq8Mo8TjDmrxdYahOP8WDDkMr4k&m=rX8zWSdUbF0XJ6RQyX5HABE7NaQIgAXHj6WfvEXkLh8&s=Yqq66BmsF0-t9R7GjryZsv1k1c4OBxUhFvNoM2kB7g8&e=> _______________________________________________ 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<https://urldefense.proofpoint.com/v2/url?u=https-3A__mm.icann.org_mailman_listinfo_accountability-2Dcross-2Dcommunity&d=AwMFaQ&c=MOptNlVtIETeDALC_lULrw&r=62cJFOifzm6X_GRlaq8Mo8TjDmrxdYahOP8WDDkMr4k&m=rX8zWSdUbF0XJ6RQyX5HABE7NaQIgAXHj6WfvEXkLh8&s=Yqq66BmsF0-t9R7GjryZsv1k1c4OBxUhFvNoM2kB7g8&e=> _______________________________________________ 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<https://urldefense.proofpoint.com/v2/url?u=https-3A__mm.icann.org_mailman_listinfo_accountability-2Dcross-2Dcommunity&d=AwMFaQ&c=MOptNlVtIETeDALC_lULrw&r=62cJFOifzm6X_GRlaq8Mo8TjDmrxdYahOP8WDDkMr4k&m=rX8zWSdUbF0XJ6RQyX5HABE7NaQIgAXHj6WfvEXkLh8&s=Yqq66BmsF0-t9R7GjryZsv1k1c4OBxUhFvNoM2kB7g8&e=> -- ------------------------------------------------------------------------ Seun Ojedeji, Federal University Oye-Ekiti web: http://www.fuoye.edu.ng<https://urldefense.proofpoint.com/v2/url?u=http-3A__www.fuoye.edu.ng&d=AwMFaQ&c=MOptNlVtIETeDALC_lULrw&r=62cJFOifzm6X_GRlaq8Mo8TjDmrxdYahOP8WDDkMr4k&m=rX8zWSdUbF0XJ6RQyX5HABE7NaQIgAXHj6WfvEXkLh8&s=JO_X0eTa_TpfkJXFV8e7p5fCVLDvN5atmTw0JvZra7w&e=> Mobile: +2348035233535 alt email:seun.ojedeji@fuoye.edu.ng<mailto:seun.ojedeji@fuoye.edu.ng> The key to understanding is humility - my view !
+1. Well said. On Mon, Jul 6, 2015 at 9:04 PM, Jonathan Zuck <JZuck@actonline.org> wrote:
Hmm. I think it’s important to bear in mind that there was overwhelming consensus among the public comments to support the membership model. The detractors from the model, while important and perhaps critical, are not in the majority. I’m not sure this process speaks to how we better use counsel as much as how we achieve consensus on principles.
*From:* accountability-cross-community-bounces@icann.org [mailto: accountability-cross-community-bounces@icann.org] *On Behalf Of *Seun Ojedeji *Sent:* Monday, July 6, 2015 3:50 PM *To:* Becky Burr *Cc:* accountability-cross-community@icann.org *Subject:* Re: [CCWG-ACCT] Who is managing the lawyers and what have they beenasked to do?
Hi Becky,
Thanks for asking, item 3 is actually in connection to the fact that such veto may not be possible without item 1(as I understood it) and that is why I said an indirect veto can happen not that I was entirely suggesting that those powers be off the table.
It seem however that folks are only looking at the powers and not at what it will take to have them.
By the way, I also did put in a reservation that we may not necessarily agree with those views but my concern is mainly that the ccwg does not spend so much time developing proposals that we know has certain implementation requirements that are not compatible with the ICANN community structure. I think we should learn from the the past (based on comments from the last PC) and utilize legal council and volunteer hours more effectively.
FWIW speaking as participant.
Regards
On 6 Jul 2015 8:08 pm, "Burr, Becky" <Becky.Burr@neustar.biz> wrote:
Seun,
I am not sure why we would take direct budget/strat plan veto off the table. Could you explain? Thanks.
Becky
J. Beckwith Burr
*Neustar, Inc. /* Deputy General Counsel and Chief Privacy Officer
1775 Pennsylvania Avenue NW, Washington, DC 20006
Office: + 1.202.533.2932 Mobile: +1.202.352.6367 / becky.burr@neustar.biz / www.neustar.biz
*From: *Seun Ojedeji <seun.ojedeji@gmail.com> *Date: *Monday, July 6, 2015 at 11:09 AM *To: *Robin Gross <robin@ipjustice.org> *Cc: *Accountability Community <accountability-cross-community@icann.org> *Subject: *Re: [CCWG-ACCT] Who is managing the lawyers and what have they beenasked to do?
Hi,
I have no problem with having a new proposal presented. However it is important that there some adherence to basic principles on proposals that the ccwg would not want to explore. Three areas comes to mind:
- Its my understanding that anything that will turn some/all of the SO/AC to members and thereby exposing them to legal challenge is not acceptable
- Its my understanding that anything that allows removal of individual board member without the approval of the entire(or larger part) of the community is not acceptable
- Its my understanding that a solution that allows direct community veto on certain elements like budget, strategic plan et all is not acceptable but an indirect enforcement could be considered (i.e using a power to get another power executed indirectly)
Some/none of the above may be acceptable by us, but my point is that there should be some focus going forward, especially if the target of ICANN54 is to be meet
Regards
On Mon, Jul 6, 2015 at 3:37 PM, Robin Gross <robin@ipjustice.org> wrote:
I would also like to hear what they propose at this stage. I really don't see how it could hurt to have another proposal to consider. Larry Strickling did say he wanted us to be sure we examined all the options carefully.
Thanks,
Robin
On Jul 6, 2015, at 7:32 AM, Greg Shatan wrote:
I agree. We should have the benefit of their thoughts.
Greg
On Mon, Jul 6, 2015 at 9:38 AM, Jordan Carter <jordan@internetnz.net.nz> wrote:
Well, I would really really like to see what the creative thinking they have done has suggested. I trust our ability as a group to make decisions, and do not believe we should cut off input from any direction...
Jordan
On 7 July 2015 at 01:13, James Gannon <james@cyberinvasion.net> wrote:
Hey Avri,
Yes the 3rd model was brought up, and the lawyers feel that it might be a cleaner way for us to get the powers that we need.
But without a call from the CCWG to present it they feel that its not their position to propose a model on their own initiative.
Personally i would like to see what they have come up with but the CCWG would need to ask as an overall group for the chairs to direct them to give some more information on the model if we wanted it.
I think if after we hear from them on Tuesdays call we still feel we might have some shortcomings that it might be the time to ask them about the 3rd option.
Also +1 I think they are really enjoying the work and are finding themselves getting more and more involved as we go on, which is great for the CCWG as the more background and details they know the better that are able to give us solid well reasoned advice in my opinion.
-James
On 6 Jul 2015, at 13:19, Avri Doria <avri@acm.org> wrote:
Hi,
I have not had a chance to get back to the recording of the call. Not sure I will, that time was the time I had for that call and that is why i was listening then.
In any case, the lawyers were talking about a new model they had come up with, but not knowing what to do about it since they had not been asked for a new model.
I was told to leave before I got to hear the end of that story. Or about the model itself. Anyone who has had a chance to listen, whatever happened?
avri
ps. sometimes i think the lawyers are getting interested in what we are doing, almost like stakeholders. not that i expect them to give up their hourly rates because they are stakeholders.
On 06-Jul-15 05:07, James Gannon wrote:
I listened to the last co-chairs lawyers’ call at; https://community.icann.org/pages/viewpage.action?pageId=53782602 <https://urldefense.proofpoint.com/v2/url?u=https-3A__community.icann.org_pag...> (I’m a glutton for punishment)
It was a short call and I’ll make a particular note that Leon and Mathieu made a point of not making any decisions on behalf of the whole group and made it clear anything requiring a decision must be made by the overall CCWG, so I was happy with that side of things myself, most of my own fears about not having a sub-group are somewhat assuaged.
So my paraphrasing and overview is:
· Lawyers working hard on the models for us collaboratively between the two firms since BA
· Lawyers are prepping a presentation to give to us ASAP before Paris if possible, that presentation will take the majority of a call, it can’t be done quickly, they need about 45mins uninterrupted to go through the presentation and then would likely need Q&A time after they present.
· Some small wording/clarifications to come back to the CCWG to make sure everyone’s on the same page
· Everyone feels Paris will be an important time for the models, lawyers will be ready for a grilling on the details of the models from us to flesh out any of our concerns/questions
Note that the above is all my very condensed overview of the conversations.
It seemed like a productive call to me.
-James
*From:*accountability-cross-community-bounces@icann.org [mailto:accountability-cross-community-bounces@icann.org] *On Behalf Of *Greg Shatan *Sent:* Monday, July 06, 2015 5:33 AM *To:* Carlos Raul *Cc:* accountability-cross-community@icann.org *Subject:* Re: [CCWG-ACCT] Who is managing the lawyers and what have they beenasked to do?
Carlos,
As the legal sub-team was disbanded, your guess is as good as mine.....
Greg
On Mon, Jul 6, 2015 at 12:27 AM, Carlos Raul <carlosraulg@gmail.com <mailto:carlosraulg@gmail.com <carlosraulg@gmail.com>>> wrote:
Thank you Greg!
It makes a lot of sense and I guess those are all good reasons as we hired them in the first place. What are the next steps now? What happened in the recent call?
Best regards
Carlos Raúl Gutiérrez
+506 8837 7176 <tel:%2B506%208837%207176 <%2B506%208837%207176>>
Skype carlos.raulg
_________
Apartado 1571-1000
*COSTA RICA*
On Mon, Jul 6, 2015 at 12:02 AM, Greg Shatan <gregshatanipc@gmail.com <mailto:gregshatanipc@gmail.com <gregshatanipc@gmail.com>>> wrote:
Chris,
That was tried to some extent, at least in the CWG.
There are several substantial problems with that approach.
First, lawyers are not fungible. The particular legal skills, background and experience required for the issues before both WGs are fairly specific, and in some cases, very specific. The primary core competency needed here is corporate governance. While a number of lawyers in the community have a reasonable working knowledge of the area, at least in their home jurisdictions, I don't believe there are any who would say that this is their primary focus and expertise -- at least none who identified themselves to either WG. The second core competency required, especially in the CCWG, is non-profit law. Again there are a number of lawyers with a decent working knowledge of this fairly broad field, but not as a primary focus. There may be a couple of lawyers in the community who would claim this fairly broad field as a primary focus and expertise -- but none who became involved with either WG. This then becomes further narrowed by jurisdiction. Since ICANN is a California non-profit corporation, US corporate governance and non-profit experience is more relevant than experience from other jurisdictions, and California law corporate governance and non-profit experience is more relevant than that from other US jurisdictions. In my experience, the more a US lawyer focuses on a particular substantive area, the greater their knowledge of and comfort with state law issues in US state jurisdictions other than their own (e.g., someone who spend a majority of their time working in corporate governance will have a greater knowledge of the law, issues, approaches and trends outside their primary state of practice, while someone who spends a relatively small amount of time in the area will tend to feel less comfortable outside their home jurisdiction). (An exception is that many US lawyers have specific knowledge of certain Delaware corporate law issues, because Delaware often serves as the state of incorporation for entities operating elsewhere.)
Second, lawyers in the community will seldom be seen as neutral advisors, no matter how hard they try. They will tend to be seen as working from their point of view or stakeholder group or "special interest" or desired outcome, even if they are trying to be even-handed. Over the course of time, this balancing act would tend to become more untenable.
Third, the amount of time it would take to provide truly definitive legal advice (research, careful drafting, discussions with relevant "clients", etc.) would be prohibitive, even compared to the substantial amount of time it takes to provide reasonably well-informed and competent legal-based viewpoints in the course of either WG's work.
Fourth, in order to formally counsel the community, the lawyer or lawyers in question would have to enter into a formal attorney-client relationship. Under US law, an attorney-client relationship may inadvertently be created by the attorney's actions, so attorneys try to be careful about not providing formal legal advice without a formal engagement (sometimes providing an explicit "caveat" if they feel they might be getting too close to providing legal advice). If the attorney is employed by a corporation, they would likely be unable to take on such a representation due to the terms of their employment, and that is before getting to an exploration of conflict of interest issues. If the attorney is employed by a firm, the firm would have to sign off on the representation, again dealing with potential conflict issues.
Fifth, even if the above issues were all somehow resolved, it would be highly unlikely that any such attorney would provide substantial amounts of advice, written memos, counseling, etc. on a pro bono (unpaid) basis, especially given the time-consuming nature of the work. Pro bono advice and representation is generally accorded to individuals and entities that could not otherwise be able to pay for it. That is clearly not the case here, at least with ICANN taking financial responsibility. It would likely be very difficult to justify this to, e.g., a firm's pro bono committee, as a valid pro bono representation.
Sixth, if ICANN were not taking the role they are taking, it would be extremely difficult to identify the "client" in this situation. The "community" is a collection of sectors, mostly represented by various ICANN-created structures, which in turn have members of widely varying types (individuals, corporations, sovereigns, non-profits, IGOs, partnerships, etc.). This would also make it extremely difficult to enter into a formal counseling relationship with the "community."
Seventh, this is a sensitive, high-profile, transformative set of actions we are involved in, which is subject to an extraordinary amount of scrutiny, not least that of the NTIA and the US Congress. That eliminates any possibility of providing informal, off-the-cuff, reasonably well-informed but not quite expert, "non-advice" advice -- which might happen in a more obscure exercise. There's simply too much at stake.
Finally, I would say that a number of attorneys involved in one or both of the WGs are in fact providing a significant amount of legal knowledge and experience to the WGs, helping to frame issues, whether in terms of general leadership (e.g., Thomas, Leon, Becky) or more specifically in a "lawyer-as-client" capacity -- working with outside counsel, tackling the more legalistic issues, providing as much legal background and knowledge as possible without providing the type of formal legal advice that would tend to create an attorney-client relationship, etc. So I do think that many lawyers in the community are giving greatly of themselves in this process, even though they cannot and would not be able to formally be engaged by the community as its "counsel of record."
In sum, it might be a nice thought in theory, but it is no way a practical possibility.
Greg
On Sat, Jul 4, 2015 at 3:08 AM, CW Lists <lists@christopherwilkinson.eu <mailto:lists@christopherwilkinson.eu <lists@christopherwilkinson.eu>>> wrote:
Good morning:
I had decided not to enter this debate. But I am bound to say that the thought had occurred to me at the time, that there were more than enough qualified lawyers in this community that they could perfectly well have counselled … themselves.
CW
On 04 Jul 2015, at 08:41, Greg Shatan <gregshatanipc@gmail.com <mailto:gregshatanipc@gmail.com <gregshatanipc@gmail.com>>> wrote:
Wolfgang,
To your first point, the billing rates were clearly stated in the law firms' engagement letters.
To your second point, I'm sure we could all think of other projects and goals where the money could have been "better spent." You've stated yours. But that is not the proper test. This was and continues to be money we need to spend to achieve the goals we have set. Under different circumstances, perhaps it would be a different amount (or maybe none at all). But it was strongly felt at the outset that the group needed to have independent counsel. Clearly that counsel needed to have recognized expertise in the appropriate legal areas. As such, I believe we made excellent choices and have been very well represented.
As to your "better spent" test, I just had to have $4000.00 worth of emergency dental work done. This money definitely could have been "better spent" on a nice vacation, redecorating our living room or on donations to my favored charitable causes. But I had no choice, other than to choose which dentist and endodontist I went to, and I wasn't going to cut corners -- the dental work was a necessity. Similarly, the legal work we are getting is a necessity and whether we would have preferred to spend the money elsewhere is not merely irrelevant, it is an incorrect and inappropriate proposition. Many of us are investing vast quantities of time that could be "better spent" elsewhere as well, but we are willing (grudgingly sometimes) to spend the time it takes to get it right, because we believe it needs to be done. This is the appropriate measure, whether it comes to our time or counsels' time. If we believe in this project, we have to invest in it, and do what it takes to succeed.
Of course, this investment has to be managed wisely and cost-effectively, and by and large, I believe the CCWG has done that reasonably well -- not perfectly, but reasonably well and with "course corrections" along the way intended to improve that management. It's certainly fair to ask, as Robin has done, for a better understanding of that management as we go along. But asserting that the money could have been "better spent" elsewhere sets up a false test that we should not use to evaluate this important aspect of our work. Instead, we need to focus on whether the money was "well spent" on these critical legal services. If you have reason to believe it was not, that could be useful to know. That would at least be the right discussion to have.
Greg
On Sat, Jul 4, 2015 at 1:13 AM, "Kleinwächter, Wolfgang" <wolfgang.kleinwaechter@medienkomm.uni-halle.de <mailto:wolfgang.kleinwaechter@medienkomm.uni-halle.de <wolfgang.kleinwaechter@medienkomm.uni-halle.de>>> wrote:
HI,
and please if you ask outside lawyers, ask for the price tag in advance. Some of the money spend fo lawyers could have been spend better to suppport and enable Internet user and non-commercial groups in developing countries.
Wolfgang
-----Ursprüngliche Nachricht----- Von: accountability-cross-community-bounces@icann.org < mailto:accountability-cross-community-bounces@icann.org <accountability-cross-community-bounces@icann.org>> im Auftrag von Robin Gross Gesendet: Fr 03.07.2015 14:57 An: accountability-cross-community@icann.org <mailto:accountability-cross-community@icann.org <accountability-cross-community@icann.org>> Community Betreff: [CCWG-ACCT] Who is managing the lawyers and what have they beenasked to do?
After the legal sub-team was disbanded, I haven't been able to follow what communications are happening with CCWG and the independent lawyers we retained.
I understand the lawyers are currently "working on the various models" and will present something to us regarding that work soon. However, *what exactly* have the lawyers been asked to do and *who* asked them? If there are written instructions, may the group please see them? Who is now taking on the role of managing the outside attorneys for this group, including providing instructions and certifying legal work?
Sorry, but I'm really trying to understand what is happening, and there doesn't seem to be much information in the public on this (or if there is, I can't find it). Thanks for any information anyone can provide.
Best, Robin
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*Seun Ojedeji, Federal University Oye-Ekiti web: * *http://www.fuoye.edu.ng <https://urldefense.proofpoint.com/v2/url?u=http-3A__www.fuoye.edu.ng&d=AwMFa...> **Mobile: +2348035233535 <%2B2348035233535>* *alt email:seun.ojedeji@fuoye.edu.ng <seun.ojedeji@fuoye.edu.ng>*
The key to understanding is humility - my view !
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Hi, I believe membership raises the issues of accountability to the full diversity of stakeholders to a much higher threshold, including the issue of the degree to which ICANN is accountable to stakeholders not included among our SG/C/RALO/ALS / as well as among parrticpating CCs and govts. I think enough of the comments bring out questions of accountability in a mebership organization to make the membership option less than optimal. avri On 06-Jul-15 19:05, Edward Morris wrote:
+1. Well said.
On Mon, Jul 6, 2015 at 9:04 PM, Jonathan Zuck <JZuck@actonline.org <mailto:JZuck@actonline.org>> wrote:
Hmm. I think it’s important to bear in mind that there was overwhelming consensus among the public comments to support the membership model. The detractors from the model, while important and perhaps critical, are not in the majority. I’m not sure this process speaks to how we better use counsel as much as how we achieve consensus on principles.
*From:*accountability-cross-community-bounces@icann.org <mailto:accountability-cross-community-bounces@icann.org> [mailto:accountability-cross-community-bounces@icann.org <mailto:accountability-cross-community-bounces@icann.org>] *On Behalf Of *Seun Ojedeji *Sent:* Monday, July 6, 2015 3:50 PM *To:* Becky Burr *Cc:* accountability-cross-community@icann.org <mailto:accountability-cross-community@icann.org> *Subject:* Re: [CCWG-ACCT] Who is managing the lawyers and what have they beenasked to do?
Hi Becky,
Thanks for asking, item 3 is actually in connection to the fact that such veto may not be possible without item 1(as I understood it) and that is why I said an indirect veto can happen not that I was entirely suggesting that those powers be off the table.
It seem however that folks are only looking at the powers and not at what it will take to have them.
By the way, I also did put in a reservation that we may not necessarily agree with those views but my concern is mainly that the ccwg does not spend so much time developing proposals that we know has certain implementation requirements that are not compatible with the ICANN community structure. I think we should learn from the the past (based on comments from the last PC) and utilize legal council and volunteer hours more effectively.
FWIW speaking as participant.
Regards
On 6 Jul 2015 8:08 pm, "Burr, Becky" <Becky.Burr@neustar.biz <mailto:Becky.Burr@neustar.biz>> wrote:
Seun,
I am not sure why we would take direct budget/strat plan veto off the table. Could you explain? Thanks.
Becky
J. Beckwith Burr
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*From: *Seun Ojedeji <seun.ojedeji@gmail.com <mailto:seun.ojedeji@gmail.com>> *Date: *Monday, July 6, 2015 at 11:09 AM *To: *Robin Gross <robin@ipjustice.org <mailto:robin@ipjustice.org>> *Cc: *Accountability Community <accountability-cross-community@icann.org <mailto:accountability-cross-community@icann.org>> *Subject: *Re: [CCWG-ACCT] Who is managing the lawyers and what have they beenasked to do?
Hi,
I have no problem with having a new proposal presented. However it is important that there some adherence to basic principles on proposals that the ccwg would not want to explore. Three areas comes to mind:
- Its my understanding that anything that will turn some/all of the SO/AC to members and thereby exposing them to legal challenge is not acceptable
- Its my understanding that anything that allows removal of individual board member without the approval of the entire(or larger part) of the community is not acceptable
- Its my understanding that a solution that allows direct community veto on certain elements like budget, strategic plan et all is not acceptable but an indirect enforcement could be considered (i.e using a power to get another power executed indirectly)
Some/none of the above may be acceptable by us, but my point is that there should be some focus going forward, especially if the target of ICANN54 is to be meet
Regards
On Mon, Jul 6, 2015 at 3:37 PM, Robin Gross <robin@ipjustice.org <mailto:robin@ipjustice.org>> wrote:
I would also like to hear what they propose at this stage. I really don't see how it could hurt to have another proposal to consider. Larry Strickling did say he wanted us to be sure we examined all the options carefully.
Thanks,
Robin
On Jul 6, 2015, at 7:32 AM, Greg Shatan wrote:
I agree. We should have the benefit of their thoughts.
Greg
On Mon, Jul 6, 2015 at 9:38 AM, Jordan Carter <jordan@internetnz.net.nz <mailto:jordan@internetnz.net.nz>> wrote:
Well, I would really really like to see what the creative thinking they have done has suggested. I trust our ability as a group to make decisions, and do not believe we should cut off input from any direction...
Jordan
On 7 July 2015 at 01:13, James Gannon <james@cyberinvasion.net <mailto:james@cyberinvasion.net>> wrote:
Hey Avri,
Yes the 3rd model was brought up, and the lawyers feel that it might be a cleaner way for us to get the powers that we need.
But without a call from the CCWG to present it they feel that its not their position to propose a model on their own initiative.
Personally i would like to see what they have come up with but the CCWG would need to ask as an overall group for the chairs to direct them to give some more information on the model if we wanted it.
I think if after we hear from them on Tuesdays call we still feel we might have some shortcomings that it might be the time to ask them about the 3rd option.
Also +1 I think they are really enjoying the work and are finding themselves getting more and more involved as we go on, which is great for the CCWG as the more background and details they know the better that are able to give us solid well reasoned advice in my opinion.
-James
On 6 Jul 2015, at 13:19, Avri Doria <avri@acm.org <mailto:avri@acm.org>> wrote:
Hi,
I have not had a chance to get back to the recording of the call. Not sure I will, that time was the time I had for that call and that is why i was listening then.
In any case, the lawyers were talking about a new model they had come up with, but not knowing what to do about it since they had not been asked for a new model.
I was told to leave before I got to hear the end of that story. Or about the model itself. Anyone who has had a chance to listen, whatever happened?
avri
ps. sometimes i think the lawyers are getting interested in what we are doing, almost like stakeholders. not that i expect them to give up their hourly rates because they are stakeholders.
On 06-Jul-15 05:07, James Gannon wrote:
I listened to the last co-chairs lawyers’ call at; https://community.icann.org/pages/viewpage.action?pageId=53782602 <https://urldefense.proofpoint.com/v2/url?u=https-3A__community.icann.org_pag...> (I’m a glutton for punishment)
It was a short call and I’ll make a particular note that Leon and Mathieu made a point of not making any decisions on behalf of the whole group and made it clear anything requiring a decision must be made by the overall CCWG, so I was happy with that side of things myself, most of my own fears about not having a sub-group are somewhat assuaged.
So my paraphrasing and overview is:
· Lawyers working hard on the models for us collaboratively between the two firms since BA
· Lawyers are prepping a presentation to give to us ASAP before Paris if possible, that presentation will take the majority of a call, it can’t be done quickly, they need about 45mins uninterrupted to go through the presentation and then would likely need Q&A time after they present.
· Some small wording/clarifications to come back to the CCWG to make sure everyone’s on the same page
· Everyone feels Paris will be an important time for the models, lawyers will be ready for a grilling on the details of the models from us to flesh out any of our concerns/questions
Note that the above is all my very condensed overview of the conversations.
It seemed like a productive call to me.
-James
*From:*accountability-cross-community-bounces@icann.org <mailto:accountability-cross-community-bounces@icann.org> [mailto:accountability-cross-community-bounces@icann.org <mailto:accountability-cross-community-bounces@icann.org>] *On Behalf Of *Greg Shatan *Sent:* Monday, July 06, 2015 5:33 AM *To:* Carlos Raul *Cc:* accountability-cross-community@icann.org <mailto:accountability-cross-community@icann.org> *Subject:* Re: [CCWG-ACCT] Who is managing the lawyers and what have they beenasked to do?
Carlos,
As the legal sub-team was disbanded, your guess is as good as mine.....
Greg
On Mon, Jul 6, 2015 at 12:27 AM, Carlos Raul <carlosraulg@gmail.com <mailto:carlosraulg@gmail.com> <mailto:carlosraulg@gmail.com>> wrote:
Thank you Greg!
It makes a lot of sense and I guess those are all good reasons as we hired them in the first place. What are the next steps now? What happened in the recent call?
Best regards
Carlos Raúl Gutiérrez
+506 8837 7176 <tel:%2B506%208837%207176> <tel:%2B506%208837%207176>
Skype carlos.raulg
_________
Apartado 1571-1000
*COSTA RICA*
On Mon, Jul 6, 2015 at 12:02 AM, Greg Shatan <gregshatanipc@gmail.com <mailto:gregshatanipc@gmail.com> <mailto:gregshatanipc@gmail.com>> wrote:
Chris,
That was tried to some extent, at least in the CWG.
There are several substantial problems with that approach.
First, lawyers are not fungible. The particular legal skills, background and experience required for the issues before both WGs are fairly specific, and in some cases, very specific. The primary core competency needed here is corporate governance. While a number of lawyers in the community have a reasonable working knowledge of the area, at least in their home jurisdictions, I don't believe there are any who would say that this is their primary focus and expertise -- at least none who identified themselves to either WG. The second core competency required, especially in the CCWG, is non-profit law. Again there are a number of lawyers with a decent working knowledge of this fairly broad field, but not as a primary focus. There may be a couple of lawyers in the community who would claim this fairly broad field as a primary focus and expertise -- but none who became involved with either WG. This then becomes further narrowed by jurisdiction. Since ICANN is a California non-profit corporation, US corporate governance and non-profit experience is more relevant than experience from other jurisdictions, and California law corporate governance and non-profit experience is more relevant than that from other US jurisdictions. In my experience, the more a US lawyer focuses on a particular substantive area, the greater their knowledge of and comfort with state law issues in US state jurisdictions other than their own (e.g., someone who spend a majority of their time working in corporate governance will have a greater knowledge of the law, issues, approaches and trends outside their primary state of practice, while someone who spends a relatively small amount of time in the area will tend to feel less comfortable outside their home jurisdiction). (An exception is that many US lawyers have specific knowledge of certain Delaware corporate law issues, because Delaware often serves as the state of incorporation for entities operating elsewhere.)
Second, lawyers in the community will seldom be seen as neutral advisors, no matter how hard they try. They will tend to be seen as working from their point of view or stakeholder group or "special interest" or desired outcome, even if they are trying to be even-handed. Over the course of time, this balancing act would tend to become more untenable.
Third, the amount of time it would take to provide truly definitive legal advice (research, careful drafting, discussions with relevant "clients", etc.) would be prohibitive, even compared to the substantial amount of time it takes to provide reasonably well-informed and competent legal-based viewpoints in the course of either WG's work.
Fourth, in order to formally counsel the community, the lawyer or lawyers in question would have to enter into a formal attorney-client relationship. Under US law, an attorney-client relationship may inadvertently be created by the attorney's actions, so attorneys try to be careful about not providing formal legal advice without a formal engagement (sometimes providing an explicit "caveat" if they feel they might be getting too close to providing legal advice). If the attorney is employed by a corporation, they would likely be unable to take on such a representation due to the terms of their employment, and that is before getting to an exploration of conflict of interest issues. If the attorney is employed by a firm, the firm would have to sign off on the representation, again dealing with potential conflict issues.
Fifth, even if the above issues were all somehow resolved, it would be highly unlikely that any such attorney would provide substantial amounts of advice, written memos, counseling, etc. on a pro bono (unpaid) basis, especially given the time-consuming nature of the work. Pro bono advice and representation is generally accorded to individuals and entities that could not otherwise be able to pay for it. That is clearly not the case here, at least with ICANN taking financial responsibility. It would likely be very difficult to justify this to, e.g., a firm's pro bono committee, as a valid pro bono representation.
Sixth, if ICANN were not taking the role they are taking, it would be extremely difficult to identify the "client" in this situation. The "community" is a collection of sectors, mostly represented by various ICANN-created structures, which in turn have members of widely varying types (individuals, corporations, sovereigns, non-profits, IGOs, partnerships, etc.). This would also make it extremely difficult to enter into a formal counseling relationship with the "community."
Seventh, this is a sensitive, high-profile, transformative set of actions we are involved in, which is subject to an extraordinary amount of scrutiny, not least that of the NTIA and the US Congress. That eliminates any possibility of providing informal, off-the-cuff, reasonably well-informed but not quite expert, "non-advice" advice -- which might happen in a more obscure exercise. There's simply too much at stake.
Finally, I would say that a number of attorneys involved in one or both of the WGs are in fact providing a significant amount of legal knowledge and experience to the WGs, helping to frame issues, whether in terms of general leadership (e.g., Thomas, Leon, Becky) or more specifically in a "lawyer-as-client" capacity -- working with outside counsel, tackling the more legalistic issues, providing as much legal background and knowledge as possible without providing the type of formal legal advice that would tend to create an attorney-client relationship, etc. So I do think that many lawyers in the community are giving greatly of themselves in this process, even though they cannot and would not be able to formally be engaged by the community as its "counsel of record."
In sum, it might be a nice thought in theory, but it is no way a practical possibility.
Greg
On Sat, Jul 4, 2015 at 3:08 AM, CW Lists <lists@christopherwilkinson.eu <mailto:lists@christopherwilkinson.eu> <mailto:lists@christopherwilkinson.eu>> wrote:
Good morning:
I had decided not to enter this debate. But I am bound to say that the thought had occurred to me at the time, that there were more than enough qualified lawyers in this community that they could perfectly well have counselled … themselves.
CW
On 04 Jul 2015, at 08:41, Greg Shatan <gregshatanipc@gmail.com <mailto:gregshatanipc@gmail.com> <mailto:gregshatanipc@gmail.com>> wrote:
Wolfgang,
To your first point, the billing rates were clearly stated in the law firms' engagement letters.
To your second point, I'm sure we could all think of other projects and goals where the money could have been "better spent." You've stated yours. But that is not the proper test. This was and continues to be money we need to spend to achieve the goals we have set. Under different circumstances, perhaps it would be a different amount (or maybe none at all). But it was strongly felt at the outset that the group needed to have independent counsel. Clearly that counsel needed to have recognized expertise in the appropriate legal areas. As such, I believe we made excellent choices and have been very well represented.
As to your "better spent" test, I just had to have $4000.00 worth of emergency dental work done. This money definitely could have been "better spent" on a nice vacation, redecorating our living room or on donations to my favored charitable causes. But I had no choice, other than to choose which dentist and endodontist I went to, and I wasn't going to cut corners -- the dental work was a necessity. Similarly, the legal work we are getting is a necessity and whether we would have preferred to spend the money elsewhere is not merely irrelevant, it is an incorrect and inappropriate proposition. Many of us are investing vast quantities of time that could be "better spent" elsewhere as well, but we are willing (grudgingly sometimes) to spend the time it takes to get it right, because we believe it needs to be done. This is the appropriate measure, whether it comes to our time or counsels' time. If we believe in this project, we have to invest in it, and do what it takes to succeed.
Of course, this investment has to be managed wisely and cost-effectively, and by and large, I believe the CCWG has done that reasonably well -- not perfectly, but reasonably well and with "course corrections" along the way intended to improve that management. It's certainly fair to ask, as Robin has done, for a better understanding of that management as we go along. But asserting that the money could have been "better spent" elsewhere sets up a false test that we should not use to evaluate this important aspect of our work. Instead, we need to focus on whether the money was "well spent" on these critical legal services. If you have reason to believe it was not, that could be useful to know. That would at least be the right discussion to have.
Greg
On Sat, Jul 4, 2015 at 1:13 AM, "Kleinwächter, Wolfgang" <wolfgang.kleinwaechter@medienkomm.uni-halle.de <mailto:wolfgang.kleinwaechter@medienkomm.uni-halle.de> <mailto:wolfgang.kleinwaechter@medienkomm.uni-halle.de>> wrote:
HI,
and please if you ask outside lawyers, ask for the price tag in advance. Some of the money spend fo lawyers could have been spend better to suppport and enable Internet user and non-commercial groups in developing countries.
Wolfgang
-----Ursprüngliche Nachricht----- Von: accountability-cross-community-bounces@icann.org <mailto:accountability-cross-community-bounces@icann.org> <mailto:accountability-cross-community-bounces@icann.org> im Auftrag von Robin Gross Gesendet: Fr 03.07.2015 14:57 An: accountability-cross-community@icann.org <mailto:accountability-cross-community@icann.org> <mailto:accountability-cross-community@icann.org> Community Betreff: [CCWG-ACCT] Who is managing the lawyers and what have they beenasked to do?
After the legal sub-team was disbanded, I haven't been able to follow what communications are happening with CCWG and the independent lawyers we retained.
I understand the lawyers are currently "working on the various models" and will present something to us regarding that work soon. However, *what exactly* have the lawyers been asked to do and *who* asked them? If there are written instructions, may the group please see them? Who is now taking on the role of managing the outside attorneys for this group, including providing instructions and certifying legal work?
Sorry, but I'm really trying to understand what is happening, and there doesn't seem to be much information in the public on this (or if there is, I can't find it). Thanks for any information anyone can provide.
Best, Robin
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The key to understanding is humility - my view !
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Hello Avri,
I believe membership raises the issues of accountability to the full diversity of stakeholders to a much higher threshold, including the issue of the degree to which ICANN is accountable to stakeholders not included among our SG/C/RALO/ALS / as well as among parrticpating CCs and govts.
Please, if possible, raise your concerns stating fact rather than belief. Maybe there is something I have missed. There is absolutely no difference in the openness to non ICANN stakeholders between the empowered membership and empowered designator models. At least I don't see any. Both are based upon the current SOAC's. If there is a difference in this area I need to and want to be educated. Please respond with specific and detailed instances or examples of why what you claim is true is. Vague generalities are not particularly helpful. Again, I am open to be educated and persuaded but with substantive fact rather than vague as yet unsubstantiated beliefs. No model is as open to non SOAC's as is Malcolm's proposal for individual membership. That, again, is a membership model. Do you support this open membership model and if not why not? Would you prefer other models to be looked at that are not based upon the SOAC's? I think that would be a very reasonable position and one I certainly am open to supporting if a workable model would be proposed. As yet I have not seen one. Have you? Should we try to find one?
I think enough of the comments bring out questions of accountability in a mebership organization to make the membership option less than optimal.
What comments are you referring to? Certainly not the public comments which were basically supportive of membership. Are these comments you refer to based upon vague generalities or specific problems? If there are specific problems what specifically are they? Should we not determine whether there are solutions to those problems rather than just dismissing the model outright? If not, what are your views as to the ultimate apparent unenforceability of the designator model in certain areas? Do you disagree with Paul Rosenzweig when he states that "a direct community veto of budget and strategic plan remains essential to accountability"? If not, what do you propose to do in these areas without membership. Should we simply forget them? I do think there may be another option or two out there and hopefully working with our counsel we'll find them. In the interim, I really am looking to be educated. No one has taught me more about ICANN since I became involved in it than you Avri. I'm just not easily persuadable by vague opinions, I'm a fact based sort of guy. As this process has moved forward I've seen your views and positions change. To me, that is an admirable sign of someone truly looking for an optimal answer rather than one who is clinging to a defined position. I'm just having some trouble understanding, factually, the specific objections you are now raising about membership. I hope you can help me understand so I can better test and evaluate my own views.. Thanks, Ed
On 06-Jul-15 19:05, Edward Morris wrote:
+1. Well said.
On Mon, Jul 6, 2015 at 9:04 PM, Jonathan Zuck <JZuck@actonline.org <mailto:JZuck@actonline.org>> wrote:
Hmm. I think it’s important to bear in mind that there was overwhelming consensus among the public comments to support the membership model. The detractors from the model, while important and perhaps critical, are not in the majority. I’m not sure this process speaks to how we better use counsel as much as how we achieve consensus on principles.
*From:*accountability-cross-community-bounces@icann.org <mailto:accountability-cross-community-bounces@icann.org> [mailto:accountability-cross-community-bounces@icann.org <mailto:accountability-cross-community-bounces@icann.org>] *On Behalf Of *Seun Ojedeji *Sent:* Monday, July 6, 2015 3:50 PM *To:* Becky Burr *Cc:* accountability-cross-community@icann.org <mailto:accountability-cross-community@icann.org> *Subject:* Re: [CCWG-ACCT] Who is managing the lawyers and what have they beenasked to do?
Hi Becky,
Thanks for asking, item 3 is actually in connection to the fact that such veto may not be possible without item 1(as I understood it) and that is why I said an indirect veto can happen not that I was entirely suggesting that those powers be off the table.
It seem however that folks are only looking at the powers and not at what it will take to have them.
By the way, I also did put in a reservation that we may not necessarily agree with those views but my concern is mainly that the ccwg does not spend so much time developing proposals that we know has certain implementation requirements that are not compatible with the ICANN community structure. I think we should learn from the the past (based on comments from the last PC) and utilize legal council and volunteer hours more effectively.
FWIW speaking as participant.
Regards
On 6 Jul 2015 8:08 pm, "Burr, Becky" <Becky.Burr@neustar.biz <mailto:Becky.Burr@neustar.biz>> wrote:
Seun,
I am not sure why we would take direct budget/strat plan veto off the table. Could you explain? Thanks.
Becky
J. Beckwith Burr
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*From: *Seun Ojedeji <seun.ojedeji@gmail.com <mailto:seun.ojedeji@gmail.com>> *Date: *Monday, July 6, 2015 at 11:09 AM *To: *Robin Gross <robin@ipjustice.org <mailto:robin@ipjustice.org>> *Cc: *Accountability Community <accountability-cross-community@icann.org <mailto:accountability-cross-community@icann.org>> *Subject: *Re: [CCWG-ACCT] Who is managing the lawyers and what have they beenasked to do?
Hi,
I have no problem with having a new proposal presented. However it is important that there some adherence to basic principles on proposals that the ccwg would not want to explore. Three areas comes to mind:
- Its my understanding that anything that will turn some/all of the SO/AC to members and thereby exposing them to legal challenge is not acceptable
- Its my understanding that anything that allows removal of individual board member without the approval of the entire(or larger part) of the community is not acceptable
- Its my understanding that a solution that allows direct community veto on certain elements like budget, strategic plan et all is not acceptable but an indirect enforcement could be considered (i.e using a power to get another power executed indirectly)
Some/none of the above may be acceptable by us, but my point is that there should be some focus going forward, especially if the target of ICANN54 is to be meet
Regards
On Mon, Jul 6, 2015 at 3:37 PM, Robin Gross <robin@ipjustice.org <mailto:robin@ipjustice.org>> wrote:
I would also like to hear what they propose at this stage. I really don't see how it could hurt to have another proposal to consider. Larry Strickling did say he wanted us to be sure we examined all the options carefully.
Thanks,
Robin
On Jul 6, 2015, at 7:32 AM, Greg Shatan wrote:
I agree. We should have the benefit of their thoughts.
Greg
On Mon, Jul 6, 2015 at 9:38 AM, Jordan Carter <jordan@internetnz.net.nz <mailto:jordan@internetnz.net.nz>> wrote:
Well, I would really really like to see what the creative thinking they have done has suggested. I trust our ability as a group to make decisions, and do not believe we should cut off input from any direction...
Jordan
On 7 July 2015 at 01:13, James Gannon <james@cyberinvasion.net <mailto:james@cyberinvasion.net>> wrote:
Hey Avri,
Yes the 3rd model was brought up, and the lawyers feel that it might be a cleaner way for us to get the powers that we need.
But without a call from the CCWG to present it they feel that its not their position to propose a model on their own initiative.
Personally i would like to see what they have come up with but the CCWG would need to ask as an overall group for the chairs to direct them to give some more information on the model if we wanted it.
I think if after we hear from them on Tuesdays call we still feel we might have some shortcomings that it might be the time to ask them about the 3rd option.
Also +1 I think they are really enjoying the work and are finding themselves getting more and more involved as we go on, which is great for the CCWG as the more background and details they know the better that are able to give us solid well reasoned advice in my opinion.
-James
On 6 Jul 2015, at 13:19, Avri Doria <avri@acm.org <mailto:avri@acm.org>> wrote:
Hi,
I have not had a chance to get back to the recording of the call. Not sure I will, that time was the time I had for that call and that is why i was listening then.
In any case, the lawyers were talking about a new model they had come up with, but not knowing what to do about it since they had not been asked for a new model.
I was told to leave before I got to hear the end of that story. Or about the model itself. Anyone who has had a chance to listen, whatever happened?
avri
ps. sometimes i think the lawyers are getting interested in what we are doing, almost like stakeholders. not that i expect them to give up their hourly rates because they are stakeholders.
On 06-Jul-15 05:07, James Gannon wrote:
I listened to the last co-chairs lawyers’ call at;
https://community.icann.org/pages/viewpage.action?pageId=53782602
<
https://urldefense.proofpoint.com/v2/url?u=https-3A__community.icann.org_pag...
(I’m a glutton for punishment)
It was a short call and I’ll make a particular note that Leon and Mathieu made a point of not making any decisions on behalf of the whole group and made it clear anything requiring a decision must be made by the overall CCWG, so I was happy with that side of things myself, most of my own fears about not having a sub-group are somewhat assuaged.
So my paraphrasing and overview is:
· Lawyers working hard on the models for us collaboratively between the two firms since BA
· Lawyers are prepping a presentation to give to us ASAP before Paris if possible, that presentation will take the majority of a call, it can’t be done quickly, they need about 45mins uninterrupted to go through the presentation and then would likely need Q&A time after they present.
· Some small wording/clarifications to come back to the CCWG to make sure everyone’s on the same page
· Everyone feels Paris will be an important time for the models, lawyers will be ready for a grilling on the details of the models from us to flesh out any of our concerns/questions
Note that the above is all my very condensed overview of the conversations.
It seemed like a productive call to me.
-James
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*On Behalf Of *Greg Shatan *Sent:* Monday, July 06, 2015 5:33 AM *To:* Carlos Raul *Cc:* accountability-cross-community@icann.org <mailto:
accountability-cross-community@icann.org>
*Subject:* Re: [CCWG-ACCT] Who is managing the lawyers and what have they beenasked to do?
Carlos,
As the legal sub-team was disbanded, your guess is as good as mine.....
Greg
On Mon, Jul 6, 2015 at 12:27 AM, Carlos Raul <carlosraulg@gmail.com <mailto:carlosraulg@gmail.com> <mailto:carlosraulg@gmail.com>> wrote:
Thank you Greg!
It makes a lot of sense and I guess those are all good reasons as we hired them in the first place. What are the next steps now? What happened in the recent call?
Best regards
Carlos Raúl Gutiérrez
+506 8837 7176 <tel:%2B506%208837%207176> <tel:%2B506%208837%207176>
Skype carlos.raulg
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On Mon, Jul 6, 2015 at 12:02 AM, Greg Shatan <gregshatanipc@gmail.com <mailto:gregshatanipc@gmail.com>
<mailto:gregshatanipc@gmail.com>>
wrote:
Chris,
That was tried to some extent, at least in the CWG.
There are several substantial problems with that approach.
First, lawyers are not fungible. The particular legal skills, background and experience required for the issues before both WGs are fairly specific, and in some cases, very specific. The primary core competency needed here is corporate governance. While a number of lawyers in the community have a reasonable working knowledge of the area, at least in their home jurisdictions, I don't believe there are any who would say that this is their primary focus and expertise -- at least none who identified themselves to either WG. The second core competency required, especially in the CCWG, is non-profit law. Again there are a number of lawyers with a decent working knowledge of this fairly broad field, but not as a primary focus. There may be a couple of lawyers in the community who would claim this fairly broad field as a primary focus and expertise -- but none who became involved with either WG. This then becomes further narrowed by jurisdiction. Since ICANN is a California non-profit corporation, US corporate governance and non-profit experience is more relevant than experience from other jurisdictions, and California law corporate governance and non-profit experience is more relevant than that from other US jurisdictions. In my experience, the more a US lawyer focuses on a particular substantive area, the greater their knowledge of and comfort with state law issues in US state jurisdictions other than their own (e.g., someone who spend a majority of their time working in corporate governance will have a greater knowledge of the law, issues, approaches and trends outside their primary state of practice, while someone who spends a relatively small amount of time in the area will tend to feel less comfortable outside their home jurisdiction). (An exception is that many US lawyers have specific knowledge of certain Delaware corporate law issues, because Delaware often serves as the state of incorporation for entities operating elsewhere.)
Second, lawyers in the community will seldom be seen as neutral advisors, no matter how hard they try. They will tend to be seen as working from their point of view or stakeholder group or "special interest" or desired outcome, even if they are trying to be even-handed. Over the course of time, this balancing act would tend to become more untenable.
Third, the amount of time it would take to provide truly definitive legal advice (research, careful drafting, discussions with relevant "clients", etc.) would be prohibitive, even compared to the substantial amount of time it takes to provide reasonably well-informed and competent legal-based viewpoints in the course of either WG's work.
Fourth, in order to formally counsel the community, the lawyer or lawyers in question would have to enter into a formal attorney-client relationship. Under US law, an attorney-client relationship may inadvertently be created by the attorney's actions, so attorneys try to be careful about not providing formal legal advice without a formal engagement (sometimes providing an explicit "caveat" if they feel they might be getting too close to providing legal advice). If the attorney is employed by a corporation, they would likely be unable to take on such a representation due to the terms of their employment, and that is before getting to an exploration of conflict of interest issues. If the attorney is employed by a firm, the firm would have to sign off on the representation, again dealing with potential conflict issues.
Fifth, even if the above issues were all somehow resolved, it would be highly unlikely that any such attorney would provide substantial amounts of advice, written memos, counseling, etc. on a pro bono (unpaid) basis, especially given the time-consuming nature of the work. Pro bono advice and representation is generally accorded to individuals and entities that could not otherwise be able to pay for it. That is clearly not the case here, at least with ICANN taking financial responsibility. It would likely be very difficult to justify this to, e.g., a firm's pro bono committee, as a valid pro bono representation.
Sixth, if ICANN were not taking the role they are taking, it would be extremely difficult to identify the "client" in this situation. The "community" is a collection of sectors, mostly represented by various ICANN-created structures, which in turn have members of widely varying types (individuals, corporations, sovereigns, non-profits, IGOs, partnerships, etc.). This would also make it extremely difficult to enter into a formal counseling relationship with the "community."
Seventh, this is a sensitive, high-profile, transformative set of actions we are involved in, which is subject to an extraordinary amount of scrutiny, not least that of the NTIA and the US Congress. That eliminates any possibility of providing informal, off-the-cuff, reasonably well-informed
but
not quite expert, "non-advice" advice -- which might happen in a more obscure exercise. There's simply too much at stake.
Finally, I would say that a number of attorneys involved in one or both of the WGs are in fact providing a significant amount of legal knowledge and experience to the WGs, helping to frame issues, whether in terms of general leadership (e.g., Thomas, Leon, Becky) or more specifically in a "lawyer-as-client" capacity -- working with outside counsel, tackling the more legalistic issues, providing as much legal background and knowledge as possible without providing the type of formal legal advice that would tend to create an attorney-client relationship, etc. So I do think that many lawyers in the community are giving greatly of themselves in this process, even though they cannot and would not be able to formally be engaged by the community as its "counsel of record."
In sum, it might be a nice thought in theory, but it is no way a practical possibility.
Greg
On Sat, Jul 4, 2015 at 3:08 AM, CW Lists <lists@christopherwilkinson.eu <mailto:lists@christopherwilkinson.eu> <mailto:
lists@christopherwilkinson.eu>>
wrote:
Good morning:
I had decided not to enter this debate. But I am bound to say that the thought had occurred to me at the time, that there were more than enough qualified lawyers in this community that they could perfectly well have counselled … themselves.
CW
On 04 Jul 2015, at 08:41, Greg Shatan <gregshatanipc@gmail.com <mailto:gregshatanipc@gmail.com>
<mailto:gregshatanipc@gmail.com>>
wrote:
Wolfgang,
To your first point, the billing rates were clearly stated in the law firms' engagement letters.
To your second point, I'm sure we could all think of other projects and goals where the money could have been "better spent." You've stated yours. But that is not the proper test. This was and continues to be money we need to spend to achieve the goals we have set. Under different circumstances, perhaps it would be a different amount (or maybe none at all). But it was strongly felt at the outset that the group needed to have independent counsel. Clearly that counsel needed to have recognized expertise in the appropriate legal areas. As such, I believe we made excellent choices and have been very well represented.
As to your "better spent" test, I just had to have $4000.00 worth of emergency dental work done. This money definitely could have been "better spent" on a nice vacation, redecorating our living room or on donations to my favored charitable causes. But I had no choice, other than to choose which dentist and endodontist I went to, and I wasn't going to cut corners -- the dental work was a necessity. Similarly, the legal work we are getting is a necessity and whether we would have preferred to spend the money elsewhere is not merely irrelevant, it is an incorrect and inappropriate proposition. Many of us are investing vast quantities of time that could be "better spent" elsewhere as well, but we are willing (grudgingly sometimes) to spend the time it takes to get it right, because we believe it needs to be done. This is the appropriate measure, whether it comes to our time or counsels' time. If we believe in this project, we have to invest in it, and do what it takes to succeed.
Of course, this investment has to be managed wisely and cost-effectively, and by and large, I believe the CCWG has done that reasonably well -- not perfectly, but reasonably well and with "course corrections" along the way intended to improve that management. It's certainly fair to ask, as Robin has done, for a better understanding of that management as we go along. But asserting that the money could have been "better spent" elsewhere sets up a false test that we should not use to evaluate this important aspect of our work. Instead, we need to focus on whether the money was "well spent" on these critical legal services. If you have reason to believe it was not, that could be useful to know. That would at least be the right discussion to have.
Greg
On Sat, Jul 4, 2015 at 1:13 AM, "Kleinwächter, Wolfgang" <
wolfgang.kleinwaechter@medienkomm.uni-halle.de
<mailto:
wolfgang.kleinwaechter@medienkomm.uni-halle.de>
<mailto:
wolfgang.kleinwaechter@medienkomm.uni-halle.de>>
wrote:
HI,
and please if you ask outside lawyers, ask for the price tag in advance. Some of the money spend fo lawyers could have been spend better to suppport and enable Internet user and non-commercial groups in developing countries.
Wolfgang
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im Auftrag von Robin Gross Gesendet: Fr 03.07.2015 14:57 An:
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Community Betreff: [CCWG-ACCT] Who is managing the lawyers and what have they beenasked to do?
After the legal sub-team was disbanded, I haven't been able to follow what communications are happening with CCWG and the independent lawyers we retained.
I understand the lawyers are currently "working on the various models" and will present something to us regarding that work soon. However, *what exactly* have the lawyers been asked to do and *who* asked them? If there are written instructions, may the group please see them? Who is now taking on the role of managing the outside attorneys for this group, including providing instructions and certifying legal work?
Sorry, but I'm really trying to understand what is happening, and there doesn't seem to be much information in the public on this (or if there is, I can't find it). Thanks for any information anyone can provide.
Best, Robin
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Hi, To start, I believe that facts are just things that people believe to be the case. I try not to speak of anything stronger that a belief. Both my personal history and world history, even history of science - that bastion of fact, shows me that yesterday's Fact is often just a matter of prejudice, superstition and point of view. In terms of the accountability problem with the membership model, it has been discussed before. Fairly extensively. Some of the gaps such as those exposed by the UA have been eliminated, but others have not. Some involve the degree to which the various SOAC are really the solid organizations we portray. As I wrote in an earlier message where i spoke of the SOAC themselves:
Having been a member or observer of many of these entities I have fond that they are often disorganized, ruled by a few strong personalities in a sea of apathy, and given to making up rules on the fly when needed. They do not even necessarily follow the rules they have agreed to in the charters, though some do, not all of them. And for the most part, though they are supposed to transparent, most aren't.
Are these structures really fit of unchecked rule? How can we show that? For me the primary deficit is the loss of checks and balances. The current system relies on a set of checks and balances between the Board and the rest of the community. The current problem is that the power of the rest of the community seem too weak to many, allowing the Board to seemingly work without any checks on its activities. By strengthening the community in the designator model, we strengthen the set of checks and balance between the Board and the rest of the community. By doing so, we increase accountability. There is a reciprocity in this notion of accountability, one that does not require external oversight. We vote them in, can appeal the board in a serious manner and will even be able to vote them out by some yet to be determined procedure. And the Board, can review the degree to which the stakeholder groups are fulfilling their mandate to represent the larger community within the ICANN mission. In a sense there is mutual reciprocal oversight. The Board and the rest of the community check each other and establish a functional balance. Most of the this CCWG's activities are working on the details of these check and balances. That is other than the grand reorganization of ICANN into a membership organization. Something that leaves the current check and balances behind and attempts to create a major new structure. In the designator model the Board can make decisions and we can appeal them. And we make recommendations and give advise the Board needs to give it serious consideration on penalty of appeal. In extreme case they can be removed from their duties and we can be subjected to discussions of reorganization. Going to the membership model eliminates this balance by giving the putative community representatives supreme power. How can that power be appealed? Can membership decisions be appealed, by whom and to whom? Who determines whether the ACSO are adequately representing the global community and living up to their obligations under the bylaws? Membership turns the Board into an administrative unit without sufficient power to act as a check or balance to the ACSOs. Eliminating any checks and balances on the ACSO from the accountability equation seems to be a critical failure to me in the creation of a new accountability regime. Perhaps if we were going with the individual membership option a degree of accountability to global members could be argued, not sure. But I believe that is not what we are working on as that would involve even greater difficulty to get right. We are not even working on a model where organizations that exist on their own come together to form a group. Our ACSO are artificial organizations created by and within ICANN. Our multistakeholder model depends on the interaction and interplay of these organization with the Board and on the checks and balances between them. Perhaps you have 'fact based' responses to all the possible accountability questions that NTIA might ask us about this new power structure you favor. I do not believe that you can show how the ACSO will be responsible to the global Internet community. I do not believe you can show how a rogue set of ACSO can be stopped from doing things that harm the organizations or the Internet without allowing the Board some degree of decision making based on the confluence of recommendations and advice received from the various ACSO and the greater community. As was stated in the call by NTIA, it was up to us to show how anything new we created could be held accountable. As far as I can tell in membership there is no way to hold the members accountable. In the designator model we show how we are adding accountability measures. In the membership model we require the ACSO to verify their own representativity, but I have seen no expression of how they can do that or show that it is the case. When I speak of having a "much higher threshold" in proving ACSO accountabilty to the global public interest, this is what I mean. How are you going to prove, as you say - with the facts that you believe in, that the membership model is more accountable given its unassailable postion in a membership organization. I have seen no evidence of membership creating greater accountability to the global public interest. I cannot state that I believe it is impossible for it to do so, just that I have seen no evidence of it. avri On 06-Jul-15 21:01, Edward Morris wrote:
Hello Avri,
I believe membership raises the issues of accountability to the full diversity of stakeholders to a much higher threshold, including the issue of the degree to which ICANN is accountable to stakeholders not included among our SG/C/RALO/ALS / as well as among parrticpating CCs and govts.
Please, if possible, raise your concerns stating fact rather than belief. Maybe there is something I have missed. There is absolutely no difference in the openness to non ICANN stakeholders between the empowered membership and empowered designator models. At least I don't see any. Both are based upon the current SOAC's. If there is a difference in this area I need to and want to be educated. Please respond with specific and detailed instances or examples of why what you claim is true is. Vague generalities are not particularly helpful. Again, I am open to be educated and persuaded but with substantive fact rather than vague as yet unsubstantiated beliefs.
No model is as open to non SOAC's as is Malcolm's proposal for individual membership. That, again, is a membership model. Do you support this open membership model and if not why not? Would you prefer other models to be looked at that are not based upon the SOAC's? I think that would be a very reasonable position and one I certainly am open to supporting if a workable model would be proposed. As yet I have not seen one. Have you? Should we try to find one?
I think enough of the comments bring out questions of accountability in a mebership organization to make the membership option less than optimal.
What comments are you referring to? Certainly not the public comments which were basically supportive of membership. Are these comments you refer to based upon vague generalities or specific problems? If there are specific problems what specifically are they? Should we not determine whether there are solutions to those problems rather than just dismissing the model outright? If not, what are your views as to the ultimate apparent unenforceability of the designator model in certain areas? Do you disagree with Paul Rosenzweig when he states that "a direct community veto of budget and strategic plan remains essential to accountability"? If not, what do you propose to do in these areas without membership. Should we simply forget them?
I do think there may be another option or two out there and hopefully working with our counsel we'll find them.
In the interim, I really am looking to be educated. No one has taught me more about ICANN since I became involved in it than you Avri. I'm just not easily persuadable by vague opinions, I'm a fact based sort of guy. As this process has moved forward I've seen your views and positions change. To me, that is an admirable sign of someone truly looking for an optimal answer rather than one who is clinging to a defined position. I'm just having some trouble understanding, factually, the specific objections you are now raising about membership. I hope you can help me understand so I can better test and evaluate my own views..
Thanks,
Ed
On 06-Jul-15 19:05, Edward Morris wrote: > +1. Well said. > > > On Mon, Jul 6, 2015 at 9:04 PM, Jonathan Zuck <JZuck@actonline.org <mailto:JZuck@actonline.org> > <mailto:JZuck@actonline.org <mailto:JZuck@actonline.org>>> wrote: > > Hmm. I think it’s important to bear in mind that there was > overwhelming consensus among the public comments to support the > membership model. The detractors from the model, while important > and perhaps critical, are not in the majority. I’m not sure this > process speaks to how we better use counsel as much as how we > achieve consensus on principles. > > > > > > > *From:*accountability-cross-community-bounces@icann.org <mailto:accountability-cross-community-bounces@icann.org> > <mailto:accountability-cross-community-bounces@icann.org <mailto:accountability-cross-community-bounces@icann.org>> > [mailto:accountability-cross-community-bounces@icann.org <mailto:accountability-cross-community-bounces@icann.org> > <mailto:accountability-cross-community-bounces@icann.org <mailto:accountability-cross-community-bounces@icann.org>>] *On > Behalf Of *Seun Ojedeji > *Sent:* Monday, July 6, 2015 3:50 PM > *To:* Becky Burr > *Cc:* accountability-cross-community@icann.org <mailto:accountability-cross-community@icann.org> > <mailto:accountability-cross-community@icann.org <mailto:accountability-cross-community@icann.org>> > *Subject:* Re: [CCWG-ACCT] Who is managing the lawyers and what > have they beenasked to do? > > > > Hi Becky, > > Thanks for asking, item 3 is actually in connection to the fact > that such veto may not be possible without item 1(as I understood > it) and that is why I said an indirect veto can happen not that I > was entirely suggesting that those powers be off the table. > > It seem however that folks are only looking at the powers and not > at what it will take to have them. > > By the way, I also did put in a reservation that we may not > necessarily agree with those views but my concern is mainly that > the ccwg does not spend so much time developing proposals that we > know has certain implementation requirements that are not > compatible with the ICANN community structure. I think we should > learn from the the past (based on comments from the last PC) and > utilize legal council and volunteer hours more effectively. > > FWIW speaking as participant. > > Regards > > On 6 Jul 2015 8:08 pm, "Burr, Becky" <Becky.Burr@neustar.biz <mailto:Becky.Burr@neustar.biz> > <mailto:Becky.Burr@neustar.biz <mailto:Becky.Burr@neustar.biz>>> wrote: > > Seun, > > > > I am not sure why we would take direct budget/strat plan veto > off the table. Could you explain? Thanks. > > > > Becky > > J. Beckwith Burr > > *Neustar, Inc. /* Deputy General Counsel and Chief Privacy Officer > > 1775 Pennsylvania Avenue NW, Washington, DC 20006 > > Office: + 1.202.533.2932 <tel:%2B%201.202.533.2932> <tel:%2B%201.202.533.2932> Mobile: > +1.202.352.6367 <tel:%2B1.202.352.6367> > <tel:%2B1.202.352.6367> / becky.burr@neustar.biz <mailto:becky.burr@neustar.biz> > <mailto:becky.burr@neustar.biz <mailto:becky.burr@neustar.biz>> / www.neustar.biz <http://www.neustar.biz> > <http://www.neustar.biz> > > > > *From: *Seun Ojedeji <seun.ojedeji@gmail.com <mailto:seun.ojedeji@gmail.com> > <mailto:seun.ojedeji@gmail.com <mailto:seun.ojedeji@gmail.com>>> > *Date: *Monday, July 6, 2015 at 11:09 AM > *To: *Robin Gross <robin@ipjustice.org <mailto:robin@ipjustice.org> > <mailto:robin@ipjustice.org <mailto:robin@ipjustice.org>>> > *Cc: *Accountability Community > <accountability-cross-community@icann.org <mailto:accountability-cross-community@icann.org> > <mailto:accountability-cross-community@icann.org <mailto:accountability-cross-community@icann.org>>> > *Subject: *Re: [CCWG-ACCT] Who is managing the lawyers and > what have they beenasked to do? > > > > Hi, > > I have no problem with having a new proposal presented. > However it is important that there some adherence to basic > principles on proposals that the ccwg would not want to > explore. Three areas comes to mind: > > - Its my understanding that anything that will turn some/all > of the SO/AC to members and thereby exposing them to legal > challenge is not acceptable > > - Its my understanding that anything that allows removal of > individual board member without the approval of the entire(or > larger part) of the community is not acceptable > > - Its my understanding that a solution that allows direct > community veto on certain elements like budget, strategic plan > et all is not acceptable but an indirect enforcement could be > considered (i.e using a power to get another power executed > indirectly) > > > > Some/none of the above may be acceptable by us, but my point > is that there should be some focus going forward, especially > if the target of ICANN54 is to be meet > > Regards > > > > > > On Mon, Jul 6, 2015 at 3:37 PM, Robin Gross > <robin@ipjustice.org <mailto:robin@ipjustice.org> <mailto:robin@ipjustice.org <mailto:robin@ipjustice.org>>> wrote: > > I would also like to hear what they propose at this > stage. I really don't see how it could hurt to have > another proposal to consider. Larry Strickling did say he > wanted us to be sure we examined all the options carefully. > > > > Thanks, > > Robin > > > > On Jul 6, 2015, at 7:32 AM, Greg Shatan wrote: > > > > I agree. We should have the benefit of their thoughts. > > > > Greg > > > > On Mon, Jul 6, 2015 at 9:38 AM, Jordan Carter > <jordan@internetnz.net.nz <mailto:jordan@internetnz.net.nz> > <mailto:jordan@internetnz.net.nz <mailto:jordan@internetnz.net.nz>>> wrote: > > Well, I would really really like to see what the > creative thinking they have done has suggested. I > trust our ability as a group to make decisions, > and do not believe we should cut off input from > any direction... > > > > Jordan > > > > On 7 July 2015 at 01:13, James Gannon > <james@cyberinvasion.net <mailto:james@cyberinvasion.net> > <mailto:james@cyberinvasion.net <mailto:james@cyberinvasion.net>>> wrote: > > Hey Avri, > > > > Yes the 3rd model was brought up, and the > lawyers feel that it might be a cleaner way > for us to get the powers that we need. > > But without a call from the CCWG to present it > they feel that its not their position to > propose a model on their own initiative. > > > > Personally i would like to see what they have > come up with but the CCWG would need to ask as > an overall group for the chairs to direct them > to give some more information on the model if > we wanted it. > > I think if after we hear from them on Tuesdays > call we still feel we might have some > shortcomings that it might be the time to ask > them about the 3rd option. > > > > Also +1 I think they are really enjoying the > work and are finding themselves getting more > and more involved as we go on, which is great > for the CCWG as the more background and > details they know the better that are able to > give us solid well reasoned advice in my opinion. > > > > -James > > > > > > On 6 Jul 2015, at 13:19, Avri Doria > <avri@acm.org <mailto:avri@acm.org> <mailto:avri@acm.org <mailto:avri@acm.org>>> wrote: > > > > Hi, > > I have not had a chance to get back to the > recording of the call. Not > sure I will, that time was the time I had > for that call and that is why > i was listening then. > > In any case, the lawyers were talking > about a new model they had come up > with, but not knowing what to do about it > since they had not been asked > for a new model. > > I was told to leave before I got to hear > the end of that story. Or about > the model itself. Anyone who has had a > chance to listen, whatever happened? > > avri > > ps. sometimes i think the lawyers are > getting interested in what we are > doing, almost like stakeholders. not that > i expect them to give up their > hourly rates because they are stakeholders. > > On 06-Jul-15 05:07, James Gannon wrote: > > > I listened to the last co-chairs > lawyers’ call at; > https://community.icann.org/pages/viewpage.action?pageId=53782602 > <https://urldefense.proofpoint.com/v2/url?u=https-3A__community.icann.org_pag...> > (I’m a glutton for punishment) > > > > It was a short call and I’ll make a > particular note that Leon and > Mathieu made a point of not making any > decisions on behalf of the > whole group and made it clear anything > requiring a decision must be > made by the overall CCWG, so I was > happy with that side of things > myself, most of my own fears about not > having a sub-group are somewhat > assuaged. > > So my paraphrasing and overview is: > > > > · Lawyers working hard on the > models for us collaboratively > between the two firms since BA > > · Lawyers are prepping a > presentation to give to us ASAP > before Paris if possible, that > presentation will take the majority of > a call, it can’t be done quickly, they > need about 45mins uninterrupted > to go through the presentation and > then would likely need Q&A time > after they present. > > · Some small > wording/clarifications to come back to > the CCWG > to make sure everyone’s on the same page > > · Everyone feels Paris will be > an important time for the > models, lawyers will be ready for a > grilling on the details of the > models from us to flesh out any of our > concerns/questions > > > > Note that the above is all my very > condensed overview of the > conversations. > > It seemed like a productive call to me. > > > > -James > > > > > > *From:*accountability-cross-community-bounces@icann.org <mailto:accountability-cross-community-bounces@icann.org> > <mailto:accountability-cross-community-bounces@icann.org <mailto:accountability-cross-community-bounces@icann.org>> > [mailto:accountability-cross-community-bounces@icann.org <mailto:accountability-cross-community-bounces@icann.org> > <mailto:accountability-cross-community-bounces@icann.org <mailto:accountability-cross-community-bounces@icann.org>>] > *On Behalf > Of *Greg Shatan > *Sent:* Monday, July 06, 2015 5:33 AM > *To:* Carlos Raul > *Cc:* > accountability-cross-community@icann.org <mailto:accountability-cross-community@icann.org> > <mailto:accountability-cross-community@icann.org <mailto:accountability-cross-community@icann.org>> > *Subject:* Re: [CCWG-ACCT] Who is > managing the lawyers and what have > they beenasked to do? > > > > Carlos, > > > > As the legal sub-team was disbanded, > your guess is as good as mine..... > > > > Greg > > > > On Mon, Jul 6, 2015 at 12:27 AM, > Carlos Raul <carlosraulg@gmail.com <mailto:carlosraulg@gmail.com> > <mailto:carlosraulg@gmail.com <mailto:carlosraulg@gmail.com>> > <mailto:carlosraulg@gmail.com <mailto:carlosraulg@gmail.com>>> wrote: > > Thank you Greg! > > > > It makes a lot of sense and I guess > those are all good reasons as > we hired them in the first place. > What are the next steps now? > What happened in the recent call? > > > > Best regards > > > > > Carlos Raúl Gutiérrez > > +506 8837 7176 <tel:%2B506%208837%207176> > <tel:%2B506%208837%207176> > <tel:%2B506%208837%207176> > > Skype carlos.raulg > > _________ > > Apartado 1571-1000 > > *COSTA RICA* > > > > > > On Mon, Jul 6, 2015 at 12:02 AM, > Greg Shatan > <gregshatanipc@gmail.com <mailto:gregshatanipc@gmail.com> > <mailto:gregshatanipc@gmail.com <mailto:gregshatanipc@gmail.com>> <mailto:gregshatanipc@gmail.com <mailto:gregshatanipc@gmail.com>>> > wrote: > > Chris, > > > > That was tried to some extent, > at least in the CWG. > > > > There are several substantial > problems with that approach. > > > > First, lawyers are not > fungible. The particular legal skills, > background and experience > required for the issues before both > WGs are fairly specific, and in > some cases, very specific. > The primary core competency > needed here is corporate > governance. While a number of > lawyers in the community have a > reasonable working knowledge of > the area, at least in their > home jurisdictions, I don't > believe there are any who would > say that this is their primary > focus and expertise -- at least > none who identified themselves > to either WG. The second core > competency required, especially > in the CCWG, is non-profit > law. Again there are a number > of lawyers with a decent working > knowledge of this fairly broad > field, but not as a primary > focus. There may be a couple > of lawyers in the community who > would claim this fairly broad > field as a primary focus and > expertise -- but none who > became involved with either WG. > This then becomes further > narrowed by jurisdiction. Since > ICANN is a California > non-profit corporation, US corporate > governance and non-profit > experience is more relevant than > experience from other > jurisdictions, and California law > corporate governance and > non-profit experience is more > relevant than that from other > US jurisdictions. In my > experience, the more a US > lawyer focuses on a particular > substantive area, the greater > their knowledge of and comfort > with state law issues in US > state jurisdictions other than > their own (e.g., someone who > spend a majority of their time > working in corporate governance > will have a greater knowledge > of the law, issues, approaches > and trends outside their > primary state of practice, > while someone who spends a > relatively small amount of time > in the area will tend to feel > less comfortable outside their > home jurisdiction). (An > exception is that many US > lawyers have specific knowledge of > certain Delaware corporate law > issues, because Delaware often > serves as the state of > incorporation for entities operating > elsewhere.) > > > > Second, lawyers in the > community will seldom be seen as > neutral advisors, no matter how > hard they try. They will tend > to be seen as working from > their point of view or stakeholder > group or "special interest" or > desired outcome, even if they > are trying to be even-handed. > Over the course of time, this > balancing act would tend to > become more untenable. > > > > Third, the amount of time it > would take to provide truly > definitive legal advice > (research, careful drafting, > discussions with relevant > "clients", etc.) would be > prohibitive, even compared to > the substantial amount of time > it takes to provide reasonably > well-informed and competent > legal-based viewpoints in the > course of either WG's work. > > > > Fourth, in order to formally > counsel the community, the lawyer > or lawyers in question would > have to enter into a formal > attorney-client relationship. > Under US law, an > attorney-client relationship > may inadvertently be created by > the attorney's actions, so > attorneys try to be careful about > not providing formal legal > advice without a formal engagement > (sometimes providing an > explicit "caveat" if they feel they > might be getting too close to > providing legal advice). If the > attorney is employed by a > corporation, they would likely be > unable to take on such a > representation due to the terms of > their employment, and that is > before getting to an exploration > of conflict of interest > issues. If the attorney is employed > by a firm, the firm would have > to sign off on the > representation, again dealing > with potential conflict issues. > > > > Fifth, even if the above issues > were all somehow resolved, it > would be highly unlikely that > any such attorney would provide > substantial amounts of advice, > written memos, counseling, etc. > on a pro bono (unpaid) basis, > especially given the > time-consuming nature of the > work. Pro bono advice and > representation is generally > accorded to individuals and > entities that could not > otherwise be able to pay for it. That > is clearly not the case here, > at least with ICANN taking > financial responsibility. It > would likely be very difficult > to justify this to, e.g., a > firm's pro bono committee, as a > valid pro bono representation. > > > > Sixth, if ICANN were not taking > the role they are taking, it > would be extremely difficult to > identify the "client" in this > situation. The "community" is > a collection of sectors, > mostly represented by various > ICANN-created structures, which > in turn have members of widely > varying types (individuals, > corporations, sovereigns, > non-profits, IGOs, partnerships, > etc.). This would also make it > extremely difficult to enter > into a formal counseling > relationship with the "community." > > > > Seventh, this is a sensitive, > high-profile, transformative set > of actions we are involved in, > which is subject to an > extraordinary amount of > scrutiny, not least that of the NTIA > and the US Congress. That > eliminates any possibility of > providing informal, > off-the-cuff, reasonably well-informed but > not quite expert, "non-advice" > advice -- which might happen in > a more obscure exercise. > There's simply too much at stake. > > > > Finally, I would say that a > number of attorneys involved in > one or both of the WGs are in > fact providing a significant > amount of legal knowledge and > experience to the WGs, helping > to frame issues, whether in > terms of general leadership (e.g., > Thomas, Leon, Becky) or more > specifically in a > "lawyer-as-client" capacity -- > working with outside counsel, > tackling the more legalistic > issues, providing as much legal > background and knowledge as > possible without providing the > type of formal legal advice > that would tend to create an > attorney-client relationship, > etc. So I do think that many > lawyers in the community are > giving greatly of themselves in > this process, even though they > cannot and would not be able to > formally be engaged by the > community as its "counsel of record." > > > > In sum, it might be a nice > thought in theory, but it is no way > a practical possibility. > > > > Greg > > > > On Sat, Jul 4, 2015 at 3:08 AM, > CW Lists > <lists@christopherwilkinson.eu <mailto:lists@christopherwilkinson.eu> > <mailto:lists@christopherwilkinson.eu <mailto:lists@christopherwilkinson.eu>> > <mailto:lists@christopherwilkinson.eu <mailto:lists@christopherwilkinson.eu>>> > wrote: > > Good morning: > > > > I had decided not to enter > this debate. But I am bound to > say that the thought had > occurred to me at the time, that > there were more than enough > qualified lawyers in this > community that they could > perfectly well have counselled … > themselves. > > > > CW > > > > On 04 Jul 2015, at 08:41, > Greg Shatan > <gregshatanipc@gmail.com <mailto:gregshatanipc@gmail.com> > <mailto:gregshatanipc@gmail.com <mailto:gregshatanipc@gmail.com>> <mailto:gregshatanipc@gmail.com <mailto:gregshatanipc@gmail.com>>> > wrote: > > > > Wolfgang, > > > > To your first point, > the billing rates were clearly > stated in the law > firms' engagement letters. > > > > To your second point, > I'm sure we could all think of > other projects and > goals where the money could have > been "better spent." > You've stated yours. But that > is not the proper > test. This was and continues to be > money we need to spend > to achieve the goals we have > set. Under different > circumstances, perhaps it would > be a different amount > (or maybe none at all). But it > was strongly felt at > the outset that the group needed > to have independent > counsel. Clearly that counsel > needed to have > recognized expertise in the appropriate > legal areas. As such, > I believe we made excellent > choices and have been > very well represented. > > > > As to your "better > spent" test, I just had to have > $4000.00 worth of > emergency dental work done. This > money definitely could > have been "better spent" on a > nice vacation, > redecorating our living room or on > donations to my favored > charitable causes. But I had > no choice, other than > to choose which dentist and > endodontist I went to, > and I wasn't going to cut > corners -- the dental > work was a necessity. > Similarly, the legal > work we are getting is a > necessity and whether > we would have preferred to spend > the money elsewhere is > not merely irrelevant, it is an > incorrect and > inappropriate proposition. Many of us > are investing vast > quantities of time that could be > "better spent" > elsewhere as well, but we are willing > (grudgingly sometimes) > to spend the time it takes to > get it right, because > we believe it needs to be done. > This is the appropriate > measure, whether it comes to > our time or counsels' > time. If we believe in this > project, we have to > invest in it, and do what it takes > to succeed. > > > > Of course, this > investment has to be managed wisely > and cost-effectively, > and by and large, I believe the > CCWG has done that > reasonably well -- not perfectly, > but reasonably well and > with "course corrections" > along the way intended > to improve that management. > It's certainly fair to > ask, as Robin has done, for a > better understanding of > that management as we go > along. But asserting > that the money could have been > "better spent" > elsewhere sets up a false test that we > should not use to > evaluate this important aspect of > our work. Instead, we > need to focus on whether the > money was "well spent" > on these critical legal > services. If you have > reason to believe it was not, > that could be useful to > know. That would at least be > the right discussion to > have. > > > > Greg > > > > On Sat, Jul 4, 2015 at > 1:13 AM, "Kleinwächter, > Wolfgang" > <wolfgang.kleinwaechter@medienkomm.uni-halle.de <mailto:wolfgang.kleinwaechter@medienkomm.uni-halle.de> > <mailto:wolfgang.kleinwaechter@medienkomm.uni-halle.de <mailto:wolfgang.kleinwaechter@medienkomm.uni-halle.de>> > <mailto:wolfgang.kleinwaechter@medienkomm.uni-halle.de <mailto:wolfgang.kleinwaechter@medienkomm.uni-halle.de>>> > wrote: > > HI, > > and please if you > ask outside lawyers, ask for the > price tag in > advance. Some of the money spend fo > lawyers could have > been spend better to suppport > and enable Internet > user and non-commercial groups > in developing > countries. > > > Wolfgang > > > > > > -----Ursprüngliche > Nachricht----- > Von: > accountability-cross-community-bounces@icann.org <mailto:accountability-cross-community-bounces@icann.org> > <mailto:accountability-cross-community-bounces@icann.org <mailto:accountability-cross-community-bounces@icann.org>> > <mailto:accountability-cross-community-bounces@icann.org <mailto:accountability-cross-community-bounces@icann.org>> > im Auftrag von > Robin Gross > Gesendet: Fr > 03.07.2015 14:57 > An: accountability-cross-community@icann.org <mailto:accountability-cross-community@icann.org> > <mailto:accountability-cross-community@icann.org <mailto:accountability-cross-community@icann.org>> > <mailto:accountability-cross-community@icann.org <mailto:accountability-cross-community@icann.org>> > Community > Betreff: > [CCWG-ACCT] Who is managing the lawyers > and what have they > beenasked to do? > > > After the legal > sub-team was disbanded, I haven't > been able to follow > what communications are > happening with CCWG > and the independent lawyers we > retained. > > I understand the > lawyers are currently "working on > the various models" > and will present something to > us regarding that > work soon. However, *what > exactly* have the > lawyers been asked to do and > *who* asked them? > If there are written > instructions, may > the group please see them? Who > is now taking on > the role of managing the outside > attorneys for this > group, including providing > instructions and > certifying legal work? > > Sorry, but I'm > really trying to understand what is > happening, and > there doesn't seem to be much > information in the > public on this (or if there is, > I can't find it). > Thanks for any information > anyone can provide. > > Best, > Robin > > _______________________________________________ > Accountability-Cross-Community > mailing list > Accountability-Cross-Community@icann.org <mailto:Accountability-Cross-Community@icann.org> > <mailto:Accountability-Cross-Community@icann.org <mailto:Accountability-Cross-Community@icann.org>> > <mailto:Accountability-Cross-Community@icann.org <mailto:Accountability-Cross-Community@icann.org>> > https://mm.icann.org/mailman/listinfo/accountability-cross-community > <https://urldefense.proofpoint.com/v2/url?u=https-3A__mm.icann.org_mailman_li...> > > > > _______________________________________________ > Accountability-Cross-Community > mailing list > Accountability-Cross-Community@icann.org <mailto:Accountability-Cross-Community@icann.org> > <mailto:Accountability-Cross-Community@icann.org <mailto:Accountability-Cross-Community@icann.org>> > <mailto:Accountability-Cross-Community@icann.org <mailto:Accountability-Cross-Community@icann.org>> > https://mm.icann.org/mailman/listinfo/accountability-cross-community > <https://urldefense.proofpoint.com/v2/url?u=https-3A__mm.icann.org_mailman_li...> > > > > > > > _______________________________________________ > Accountability-Cross-Community > mailing list > Accountability-Cross-Community@icann.org <mailto:Accountability-Cross-Community@icann.org> > <mailto:Accountability-Cross-Community@icann.org <mailto:Accountability-Cross-Community@icann.org>> > <mailto:Accountability-Cross-Community@icann.org <mailto:Accountability-Cross-Community@icann.org>> > 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Hi Avri, Thank you very much for your comprehensive response. It's very helpful. I need to think about it and evaluate things before responding. Again, thanks for making the effort so I better understand your views and can challenge my own. Ed On Tue, Jul 7, 2015 at 12:52 PM, Avri Doria <avri@acm.org> wrote:
Hi,
To start, I believe that facts are just things that people believe to be the case. I try not to speak of anything stronger that a belief. Both my personal history and world history, even history of science - that bastion of fact, shows me that yesterday's Fact is often just a matter of prejudice, superstition and point of view.
In terms of the accountability problem with the membership model, it has been discussed before. Fairly extensively. Some of the gaps such as those exposed by the UA have been eliminated, but others have not. Some involve the degree to which the various SOAC are really the solid organizations we portray. As I wrote in an earlier message where i spoke of the SOAC themselves:
Having been a member or observer of many of these entities I have fond that they are often disorganized, ruled by a few strong personalities in a sea of apathy, and given to making up rules on the fly when needed. They do not even necessarily follow the rules they have agreed to in the charters, though some do, not all of them. And for the most part, though they are supposed to transparent, most aren't.
Are these structures really fit of unchecked rule? How can we show that?
For me the primary deficit is the loss of checks and balances.
The current system relies on a set of checks and balances between the Board and the rest of the community. The current problem is that the power of the rest of the community seem too weak to many, allowing the Board to seemingly work without any checks on its activities.
By strengthening the community in the designator model, we strengthen the set of checks and balance between the Board and the rest of the community. By doing so, we increase accountability.
There is a reciprocity in this notion of accountability, one that does not require external oversight. We vote them in, can appeal the board in a serious manner and will even be able to vote them out by some yet to be determined procedure. And the Board, can review the degree to which the stakeholder groups are fulfilling their mandate to represent the larger community within the ICANN mission. In a sense there is mutual reciprocal oversight. The Board and the rest of the community check each other and establish a functional balance. Most of the this CCWG's activities are working on the details of these check and balances.
That is other than the grand reorganization of ICANN into a membership organization. Something that leaves the current check and balances behind and attempts to create a major new structure.
In the designator model the Board can make decisions and we can appeal them. And we make recommendations and give advise the Board needs to give it serious consideration on penalty of appeal. In extreme case they can be removed from their duties and we can be subjected to discussions of reorganization.
Going to the membership model eliminates this balance by giving the putative community representatives supreme power. How can that power be appealed? Can membership decisions be appealed, by whom and to whom? Who determines whether the ACSO are adequately representing the global community and living up to their obligations under the bylaws? Membership turns the Board into an administrative unit without sufficient power to act as a check or balance to the ACSOs.
Eliminating any checks and balances on the ACSO from the accountability equation seems to be a critical failure to me in the creation of a new accountability regime. Perhaps if we were going with the individual membership option a degree of accountability to global members could be argued, not sure. But I believe that is not what we are working on as that would involve even greater difficulty to get right. We are not even working on a model where organizations that exist on their own come together to form a group. Our ACSO are artificial organizations created by and within ICANN. Our multistakeholder model depends on the interaction and interplay of these organization with the Board and on the checks and balances between them.
Perhaps you have 'fact based' responses to all the possible accountability questions that NTIA might ask us about this new power structure you favor. I do not believe that you can show how the ACSO will be responsible to the global Internet community. I do not believe you can show how a rogue set of ACSO can be stopped from doing things that harm the organizations or the Internet without allowing the Board some degree of decision making based on the confluence of recommendations and advice received from the various ACSO and the greater community.
As was stated in the call by NTIA, it was up to us to show how anything new we created could be held accountable. As far as I can tell in membership there is no way to hold the members accountable. In the designator model we show how we are adding accountability measures. In the membership model we require the ACSO to verify their own representativity, but I have seen no expression of how they can do that or show that it is the case. When I speak of having a "much higher threshold" in proving ACSO accountabilty to the global public interest, this is what I mean. How are you going to prove, as you say - with the facts that you believe in, that the membership model is more accountable given its unassailable postion in a membership organization.
I have seen no evidence of membership creating greater accountability to the global public interest. I cannot state that I believe it is impossible for it to do so, just that I have seen no evidence of it.
avri
On 06-Jul-15 21:01, Edward Morris wrote:
Hello Avri,
I believe membership raises the issues of accountability to the full diversity of stakeholders to a much higher threshold, including the issue of the degree to which ICANN is accountable to stakeholders not included among our SG/C/RALO/ALS / as well as among parrticpating CCs and govts.
Please, if possible, raise your concerns stating fact rather than belief. Maybe there is something I have missed. There is absolutely no difference in the openness to non ICANN stakeholders between the empowered membership and empowered designator models. At least I don't see any. Both are based upon the current SOAC's. If there is a difference in this area I need to and want to be educated. Please respond with specific and detailed instances or examples of why what you claim is true is. Vague generalities are not particularly helpful. Again, I am open to be educated and persuaded but with substantive fact rather than vague as yet unsubstantiated beliefs.
No model is as open to non SOAC's as is Malcolm's proposal for individual membership. That, again, is a membership model. Do you support this open membership model and if not why not? Would you prefer other models to be looked at that are not based upon the SOAC's? I think that would be a very reasonable position and one I certainly am open to supporting if a workable model would be proposed. As yet I have not seen one. Have you? Should we try to find one?
I think enough of the comments bring out questions of accountability in a mebership organization to make the membership option less than optimal.
What comments are you referring to? Certainly not the public comments which were basically supportive of membership. Are these comments you refer to based upon vague generalities or specific problems? If there are specific problems what specifically are they? Should we not determine whether there are solutions to those problems rather than just dismissing the model outright? If not, what are your views as to the ultimate apparent unenforceability of the designator model in certain areas? Do you disagree with Paul Rosenzweig when he states that "a direct community veto of budget and strategic plan remains essential to accountability"? If not, what do you propose to do in these areas without membership. Should we simply forget them?
I do think there may be another option or two out there and hopefully working with our counsel we'll find them.
In the interim, I really am looking to be educated. No one has taught me more about ICANN since I became involved in it than you Avri. I'm just not easily persuadable by vague opinions, I'm a fact based sort of guy. As this process has moved forward I've seen your views and positions change. To me, that is an admirable sign of someone truly looking for an optimal answer rather than one who is clinging to a defined position. I'm just having some trouble understanding, factually, the specific objections you are now raising about membership. I hope you can help me understand so I can better test and evaluate my own views..
Thanks,
Ed
On 06-Jul-15 19:05, Edward Morris wrote: > +1. Well said. > > > On Mon, Jul 6, 2015 at 9:04 PM, Jonathan Zuck <JZuck@actonline.org <mailto:JZuck@actonline.org> > <mailto:JZuck@actonline.org <mailto:JZuck@actonline.org>>> wrote: > > Hmm. I think it’s important to bear in mind that there was > overwhelming consensus among the public comments to support the > membership model. The detractors from the model, while important > and perhaps critical, are not in the majority. I’m not sure this > process speaks to how we better use counsel as much as how we > achieve consensus on principles. > > > > > > > *From:*accountability-cross-community-bounces@icann.org <mailto:accountability-cross-community-bounces@icann.org> > <mailto:accountability-cross-community-bounces@icann.org <mailto:accountability-cross-community-bounces@icann.org>> > [mailto:accountability-cross-community-bounces@icann.org <mailto:accountability-cross-community-bounces@icann.org> > <mailto:accountability-cross-community-bounces@icann.org <mailto:accountability-cross-community-bounces@icann.org>>] *On > Behalf Of *Seun Ojedeji > *Sent:* Monday, July 6, 2015 3:50 PM > *To:* Becky Burr > *Cc:* accountability-cross-community@icann.org <mailto:accountability-cross-community@icann.org> > <mailto:accountability-cross-community@icann.org <mailto:accountability-cross-community@icann.org>> > *Subject:* Re: [CCWG-ACCT] Who is managing the lawyers and what > have they beenasked to do? > > > > Hi Becky, > > Thanks for asking, item 3 is actually in connection to the fact > that such veto may not be possible without item 1(as I understood > it) and that is why I said an indirect veto can happen not that I > was entirely suggesting that those powers be off the table. > > It seem however that folks are only looking at the powers and not > at what it will take to have them. > > By the way, I also did put in a reservation that we may not > necessarily agree with those views but my concern is mainly that > the ccwg does not spend so much time developing proposals that we > know has certain implementation requirements that are not > compatible with the ICANN community structure. I think we should > learn from the the past (based on comments from the last PC) and > utilize legal council and volunteer hours more effectively. > > FWIW speaking as participant. > > Regards > > On 6 Jul 2015 8:08 pm, "Burr, Becky" <Becky.Burr@neustar.biz <mailto:Becky.Burr@neustar.biz> > <mailto:Becky.Burr@neustar.biz <mailto:Becky.Burr@neustar.biz>>> wrote: > > Seun, > > > > I am not sure why we would take direct budget/strat plan veto > off the table. Could you explain? Thanks. > > > > Becky > > J. Beckwith Burr > > *Neustar, Inc. /* Deputy General Counsel and Chief Privacy Officer > > 1775 Pennsylvania Avenue NW, Washington, DC 20006 > > Office: + 1.202.533.2932 <tel:%2B%201.202.533.2932> <tel:%2B%201.202.533.2932> Mobile: > +1.202.352.6367 <tel:%2B1.202.352.6367> > <tel:%2B1.202.352.6367> / becky.burr@neustar.biz <mailto:becky.burr@neustar.biz> > <mailto:becky.burr@neustar.biz <mailto:becky.burr@neustar.biz>> / www.neustar.biz <http://www.neustar.biz> > <http://www.neustar.biz> > > > > *From: *Seun Ojedeji <seun.ojedeji@gmail.com <mailto:seun.ojedeji@gmail.com> > <mailto:seun.ojedeji@gmail.com <mailto:seun.ojedeji@gmail.com>>> > *Date: *Monday, July 6, 2015 at 11:09 AM > *To: *Robin Gross <robin@ipjustice.org <mailto:robin@ipjustice.org> > <mailto:robin@ipjustice.org <mailto:robin@ipjustice.org>>> > *Cc: *Accountability Community > <accountability-cross-community@icann.org <mailto:accountability-cross-community@icann.org> > <mailto:accountability-cross-community@icann.org <mailto:accountability-cross-community@icann.org>>> > *Subject: *Re: [CCWG-ACCT] Who is managing the lawyers and > what have they beenasked to do? > > > > Hi, > > I have no problem with having a new proposal presented. > However it is important that there some adherence to basic > principles on proposals that the ccwg would not want to > explore. Three areas comes to mind: > > - Its my understanding that anything that will turn some/all > of the SO/AC to members and thereby exposing them to legal > challenge is not acceptable > > - Its my understanding that anything that allows removal of > individual board member without the approval of the entire(or > larger part) of the community is not acceptable > > - Its my understanding that a solution that allows direct > community veto on certain elements like budget, strategic plan > et all is not acceptable but an indirect enforcement could be > considered (i.e using a power to get another power executed > indirectly) > > > > Some/none of the above may be acceptable by us, but my point > is that there should be some focus going forward, especially > if the target of ICANN54 is to be meet > > Regards > > > > > > On Mon, Jul 6, 2015 at 3:37 PM, Robin Gross > <robin@ipjustice.org <mailto:robin@ipjustice.org> <mailto:robin@ipjustice.org <mailto:robin@ipjustice.org>>> wrote: > > I would also like to hear what they propose at this > stage. I really don't see how it could hurt to have > another proposal to consider. Larry Strickling did say he > wanted us to be sure we examined all the options carefully. > > > > Thanks, > > Robin > > > > On Jul 6, 2015, at 7:32 AM, Greg Shatan wrote: > > > > I agree. We should have the benefit of their thoughts. > > > > Greg > > > > On Mon, Jul 6, 2015 at 9:38 AM, Jordan Carter > <jordan@internetnz.net.nz <mailto:jordan@internetnz.net.nz> > <mailto:jordan@internetnz.net.nz <mailto:jordan@internetnz.net.nz>>> wrote: > > Well, I would really really like to see what the > creative thinking they have done has suggested. I > trust our ability as a group to make decisions, > and do not believe we should cut off input from > any direction... > > > > Jordan > > > > On 7 July 2015 at 01:13, James Gannon > <james@cyberinvasion.net <mailto:james@cyberinvasion.net> > <mailto:james@cyberinvasion.net <mailto:james@cyberinvasion.net>>> wrote: > > Hey Avri, > > > > Yes the 3rd model was brought up, and the > lawyers feel that it might be a cleaner way > for us to get the powers that we need. > > But without a call from the CCWG to present it > they feel that its not their position to > propose a model on their own initiative. > > > > Personally i would like to see what they have > come up with but the CCWG would need to ask as > an overall group for the chairs to direct them > to give some more information on the model if > we wanted it. > > I think if after we hear from them on Tuesdays > call we still feel we might have some > shortcomings that it might be the time to ask > them about the 3rd option. > > > > Also +1 I think they are really enjoying the > work and are finding themselves getting more > and more involved as we go on, which is great > for the CCWG as the more background and > details they know the better that are able to > give us solid well reasoned advice in my opinion. > > > > -James > > > > > > On 6 Jul 2015, at 13:19, Avri Doria > <avri@acm.org <mailto:avri@acm.org> <mailto:avri@acm.org <mailto:avri@acm.org>>> wrote: > > > > Hi, > > I have not had a chance to get back to the > recording of the call. Not > sure I will, that time was the time I had > for that call and that is why > i was listening then. > > In any case, the lawyers were talking > about a new model they had come up > with, but not knowing what to do about it > since they had not been asked > for a new model. > > I was told to leave before I got to hear > the end of that story. Or about > the model itself. Anyone who has had a > chance to listen, whatever happened? > > avri > > ps. sometimes i think the lawyers are > getting interested in what we are > doing, almost like stakeholders. not that > i expect them to give up their > hourly rates because they are stakeholders. > > On 06-Jul-15 05:07, James Gannon wrote: > > > I listened to the last co-chairs > lawyers’ call at; > https://community.icann.org/pages/viewpage.action?pageId=53782602 > < https://urldefense.proofpoint.com/v2/url?u=https-3A__community.icann.org_pag...
> (I’m a glutton for punishment) > > > > It was a short call and I’ll make a > particular note that Leon and > Mathieu made a point of not making any > decisions on behalf of the > whole group and made it clear anything > requiring a decision must be > made by the overall CCWG, so I was > happy with that side of things > myself, most of my own fears about not > having a sub-group are somewhat > assuaged. > > So my paraphrasing and overview is: > > > > · Lawyers working hard on the > models for us collaboratively > between the two firms since BA > > · Lawyers are prepping a > presentation to give to us ASAP > before Paris if possible, that > presentation will take the majority of > a call, it can’t be done quickly, they > need about 45mins uninterrupted > to go through the presentation and > then would likely need Q&A time > after they present. > > · Some small > wording/clarifications to come back to > the CCWG > to make sure everyone’s on the same page > > · Everyone feels Paris will be > an important time for the > models, lawyers will be ready for a > grilling on the details of the > models from us to flesh out any of our > concerns/questions > > > > Note that the above is all my very > condensed overview of the > conversations. > > It seemed like a productive call to me. > > > > -James > > > > > > *From:*accountability-cross-community-bounces@icann.org <mailto:accountability-cross-community-bounces@icann.org> > <mailto:accountability-cross-community-bounces@icann.org <mailto:accountability-cross-community-bounces@icann.org>> > [mailto:accountability-cross-community-bounces@icann.org <mailto:accountability-cross-community-bounces@icann.org> > <mailto:accountability-cross-community-bounces@icann.org <mailto:accountability-cross-community-bounces@icann.org>>] > *On Behalf > Of *Greg Shatan > *Sent:* Monday, July 06, 2015 5:33 AM > *To:* Carlos Raul > *Cc:* > accountability-cross-community@icann.org <mailto:accountability-cross-community@icann.org> > <mailto:accountability-cross-community@icann.org <mailto:accountability-cross-community@icann.org>> > *Subject:* Re: [CCWG-ACCT] Who is > managing the lawyers and what have > they beenasked to do? > > > > Carlos, > > > > As the legal sub-team was disbanded, > your guess is as good as mine..... > > > > Greg > > > > On Mon, Jul 6, 2015 at 12:27 AM, > Carlos Raul <carlosraulg@gmail.com <mailto:carlosraulg@gmail.com> > <mailto:carlosraulg@gmail.com <mailto:carlosraulg@gmail.com>> > <mailto:carlosraulg@gmail.com <mailto:carlosraulg@gmail.com>>> wrote: > > Thank you Greg! > > > > It makes a lot of sense and I guess > those are all good reasons as > we hired them in the first place. > What are the next steps now? > What happened in the recent call? > > > > Best regards > > > > > Carlos Raúl Gutiérrez > > +506 8837 7176 <tel:%2B506%208837%207176> > <tel:%2B506%208837%207176> > <tel:%2B506%208837%207176> > > Skype carlos.raulg > > _________ > > Apartado 1571-1000 > > *COSTA RICA* > > > > > > On Mon, Jul 6, 2015 at 12:02 AM, > Greg Shatan > <gregshatanipc@gmail.com <mailto:gregshatanipc@gmail.com> > <mailto:gregshatanipc@gmail.com <mailto:gregshatanipc@gmail.com>> <mailto:gregshatanipc@gmail.com <mailto:gregshatanipc@gmail.com>>> > wrote: > > Chris, > > > > That was tried to some extent, > at least in the CWG. > > > > There are several substantial > problems with that approach. > > > > First, lawyers are not > fungible. The particular legal skills, > background and experience > required for the issues before both > WGs are fairly specific, and in > some cases, very specific. > The primary core competency > needed here is corporate > governance. While a number of > lawyers in the community have a > reasonable working knowledge of > the area, at least in their > home jurisdictions, I don't > believe there are any who would > say that this is their primary > focus and expertise -- at least > none who identified themselves > to either WG. The second core > competency required, especially > in the CCWG, is non-profit > law. Again there are a number > of lawyers with a decent working > knowledge of this fairly broad > field, but not as a primary > focus. There may be a couple > of lawyers in the community who > would claim this fairly broad > field as a primary focus and > expertise -- but none who > became involved with either WG. > This then becomes further > narrowed by jurisdiction. Since > ICANN is a California > non-profit corporation, US corporate > governance and non-profit > experience is more relevant than > experience from other > jurisdictions, and California law > corporate governance and > non-profit experience is more > relevant than that from other > US jurisdictions. In my > experience, the more a US > lawyer focuses on a particular > substantive area, the greater > their knowledge of and comfort > with state law issues in US > state jurisdictions other than > their own (e.g., someone who > spend a majority of their time > working in corporate governance > will have a greater knowledge > of the law, issues, approaches > and trends outside their > primary state of practice, > while someone who spends a > relatively small amount of time > in the area will tend to feel > less comfortable outside their > home jurisdiction). (An > exception is that many US > lawyers have specific knowledge of > certain Delaware corporate law > issues, because Delaware often > serves as the state of > incorporation for entities operating > elsewhere.) > > > > Second, lawyers in the > community will seldom be seen as > neutral advisors, no matter how > hard they try. They will tend > to be seen as working from > their point of view or stakeholder > group or "special interest" or > desired outcome, even if they > are trying to be even-handed. > Over the course of time, this > balancing act would tend to > become more untenable. > > > > Third, the amount of time it > would take to provide truly > definitive legal advice > (research, careful drafting, > discussions with relevant > "clients", etc.) would be > prohibitive, even compared to > the substantial amount of time > it takes to provide reasonably > well-informed and competent > legal-based viewpoints in the > course of either WG's work. > > > > Fourth, in order to formally > counsel the community, the lawyer > or lawyers in question would > have to enter into a formal > attorney-client relationship. > Under US law, an > attorney-client relationship > may inadvertently be created by > the attorney's actions, so > attorneys try to be careful about > not providing formal legal > advice without a formal engagement > (sometimes providing an > explicit "caveat" if they feel they > might be getting too close to > providing legal advice). If the > attorney is employed by a > corporation, they would likely be > unable to take on such a > representation due to the terms of > their employment, and that is > before getting to an exploration > of conflict of interest > issues. If the attorney is employed > by a firm, the firm would have > to sign off on the > representation, again dealing > with potential conflict issues. > > > > Fifth, even if the above issues > were all somehow resolved, it > would be highly unlikely that > any such attorney would provide > substantial amounts of advice, > written memos, counseling, etc. > on a pro bono (unpaid) basis, > especially given the > time-consuming nature of the > work. Pro bono advice and > representation is generally > accorded to individuals and > entities that could not > otherwise be able to pay for it. That > is clearly not the case here, > at least with ICANN taking > financial responsibility. It > would likely be very difficult > to justify this to, e.g., a > firm's pro bono committee, as a > valid pro bono representation. > > > > Sixth, if ICANN were not taking > the role they are taking, it > would be extremely difficult to > identify the "client" in this > situation. The "community" is > a collection of sectors, > mostly represented by various > ICANN-created structures, which > in turn have members of widely > varying types (individuals, > corporations, sovereigns, > non-profits, IGOs, partnerships, > etc.). This would also make it > extremely difficult to enter > into a formal counseling > relationship with the "community." > > > > Seventh, this is a sensitive, > high-profile, transformative set > of actions we are involved in, > which is subject to an > extraordinary amount of > scrutiny, not least that of the NTIA > and the US Congress. That > eliminates any possibility of > providing informal, > off-the-cuff, reasonably well-informed but > not quite expert, "non-advice" > advice -- which might happen in > a more obscure exercise. > There's simply too much at stake. > > > > Finally, I would say that a > number of attorneys involved in > one or both of the WGs are in > fact providing a significant > amount of legal knowledge and > experience to the WGs, helping > to frame issues, whether in > terms of general leadership (e.g., > Thomas, Leon, Becky) or more > specifically in a > "lawyer-as-client" capacity -- > working with outside counsel, > tackling the more legalistic > issues, providing as much legal > background and knowledge as > possible without providing the > type of formal legal advice > that would tend to create an > attorney-client relationship, > etc. So I do think that many > lawyers in the community are > giving greatly of themselves in > this process, even though they > cannot and would not be able to > formally be engaged by the > community as its "counsel of record." > > > > In sum, it might be a nice > thought in theory, but it is no way > a practical possibility. > > > > Greg > > > > On Sat, Jul 4, 2015 at 3:08 AM, > CW Lists > <lists@christopherwilkinson.eu <mailto:lists@christopherwilkinson.eu
> <mailto:lists@christopherwilkinson.eu <mailto:lists@christopherwilkinson.eu>> > <mailto:lists@christopherwilkinson.eu <mailto:lists@christopherwilkinson.eu>>> > wrote: > > Good morning: > > > > I had decided not to enter > this debate. But I am bound to > say that the thought had > occurred to me at the time, that > there were more than enough > qualified lawyers in this > community that they could > perfectly well have counselled … > themselves. > > > > CW > > > > On 04 Jul 2015, at 08:41, > Greg Shatan > <gregshatanipc@gmail.com <mailto:gregshatanipc@gmail.com> > <mailto:gregshatanipc@gmail.com <mailto:gregshatanipc@gmail.com>> <mailto:gregshatanipc@gmail.com <mailto:gregshatanipc@gmail.com>>> > wrote: > > > > Wolfgang, > > > > To your first point, > the billing rates were clearly > stated in the law > firms' engagement letters. > > > > To your second point, > I'm sure we could all think of > other projects and > goals where the money could have > been "better spent." > You've stated yours. But that > is not the proper > test. This was and continues to be > money we need to spend > to achieve the goals we have > set. Under different > circumstances, perhaps it would > be a different amount > (or maybe none at all). But it > was strongly felt at > the outset that the group needed > to have independent > counsel. Clearly that counsel > needed to have > recognized expertise in the appropriate > legal areas. As such, > I believe we made excellent > choices and have been > very well represented. > > > > As to your "better > spent" test, I just had to have > $4000.00 worth of > emergency dental work done. This > money definitely could > have been "better spent" on a > nice vacation, > redecorating our living room or on > donations to my favored > charitable causes. But I had > no choice, other than > to choose which dentist and > endodontist I went to, > and I wasn't going to cut > corners -- the dental > work was a necessity. > Similarly, the legal > work we are getting is a > necessity and whether > we would have preferred to spend > the money elsewhere is > not merely irrelevant, it is an > incorrect and > inappropriate proposition. Many of us > are investing vast > quantities of time that could be > "better spent" > elsewhere as well, but we are willing > (grudgingly sometimes) > to spend the time it takes to > get it right, because > we believe it needs to be done. > This is the appropriate > measure, whether it comes to > our time or counsels' > time. If we believe in this > project, we have to > invest in it, and do what it takes > to succeed. > > > > Of course, this > investment has to be managed wisely > and cost-effectively, > and by and large, I believe the > CCWG has done that > reasonably well -- not perfectly, > but reasonably well and > with "course corrections" > along the way intended > to improve that management. > It's certainly fair to > ask, as Robin has done, for a > better understanding of > that management as we go > along. But asserting > that the money could have been > "better spent" > elsewhere sets up a false test that we > should not use to > evaluate this important aspect of > our work. Instead, we > need to focus on whether the > money was "well spent" > on these critical legal > services. If you have > reason to believe it was not, > that could be useful to > know. That would at least be > the right discussion to > have. > > > > Greg > > > > On Sat, Jul 4, 2015 at > 1:13 AM, "Kleinwächter, > Wolfgang" > <wolfgang.kleinwaechter@medienkomm.uni-halle.de <mailto:wolfgang.kleinwaechter@medienkomm.uni-halle.de> > <mailto:wolfgang.kleinwaechter@medienkomm.uni-halle.de <mailto:wolfgang.kleinwaechter@medienkomm.uni-halle.de>> > <mailto:wolfgang.kleinwaechter@medienkomm.uni-halle.de <mailto:wolfgang.kleinwaechter@medienkomm.uni-halle.de>>> > wrote: > > HI, > > and please if you > ask outside lawyers, ask for the > price tag in > advance. Some of the money spend fo > lawyers could have > been spend better to suppport > and enable Internet > user and non-commercial groups > in developing > countries. > > > Wolfgang > > > > > > -----Ursprüngliche > Nachricht----- > Von: > accountability-cross-community-bounces@icann.org <mailto:accountability-cross-community-bounces@icann.org> > <mailto:accountability-cross-community-bounces@icann.org <mailto:accountability-cross-community-bounces@icann.org>> > <mailto:accountability-cross-community-bounces@icann.org <mailto:accountability-cross-community-bounces@icann.org>> > im Auftrag von > Robin Gross > Gesendet: Fr > 03.07.2015 14:57 > An: accountability-cross-community@icann.org <mailto:accountability-cross-community@icann.org> > <mailto:accountability-cross-community@icann.org <mailto:accountability-cross-community@icann.org>> > <mailto:accountability-cross-community@icann.org <mailto:accountability-cross-community@icann.org>> > Community > Betreff: > [CCWG-ACCT] Who is managing the lawyers > and what have they > beenasked to do? > > > After the legal > sub-team was disbanded, I haven't > been able to follow > what communications are > happening with CCWG > and the independent lawyers we > retained. > > I understand the > lawyers are currently "working on > the various models" > and will present something to > us regarding that > work soon. However, *what > exactly* have the > lawyers been asked to do and > *who* asked them? > If there are written > instructions, may > the group please see them? Who > is now taking on > the role of managing the outside > attorneys for this > group, including providing > instructions and > certifying legal work? > > Sorry, but I'm > really trying to understand what is > happening, and > there doesn't seem to be much > information in the > public on this (or if there is, > I can't find it). > Thanks for any information > anyone can provide. > > Best, > Robin > > _______________________________________________ > Accountability-Cross-Community > mailing list > Accountability-Cross-Community@icann.org <mailto:Accountability-Cross-Community@icann.org> > <mailto:Accountability-Cross-Community@icann.org <mailto:Accountability-Cross-Community@icann.org>> > <mailto:Accountability-Cross-Community@icann.org <mailto:Accountability-Cross-Community@icann.org>> > https://mm.icann.org/mailman/listinfo/accountability-cross-community > < https://urldefense.proofpoint.com/v2/url?u=https-3A__mm.icann.org_mailman_li...
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Hi all, Firstly I think facts speak for themselves, but it is our understanding of them - including how they change through the accumulation of further facts - that changes over time. And I am not a scientist. Nor a lawyer :-) On Avri's broad point, it does summon up a nub of the debate. I reiterate for the record that my concern with ICANN's post-transition reality is that power is concentrated from the status quo (NTIA - Board, with community advice) into a newly powerful and concentrated single entity - the ICANN Board. The purpose of a membership or designator model is to distribute power into the global multistakeholder community, as organised through the SO/AC structure, which is how ICANN organises the various stakeholders with interests in the DNS. There's no claim of perfection in such a model. Quite the opposite. The whole point of a distribution of power is to share accountability and responsibility more broadly. The "voluntary" model concentrates power in one place to an unhealthy degree. It is difficult for me to understand how anyone could accept a clear worsening of accountability and concentration of power that it represents, compared with the status quo. Seems to me the sole difference between members and designators comes down to how strong you want the authority of the community to be. Neither represents "total" power: there is no abrogation in either of the Board's responsibility to govern ICANN consistent with its limited mission and consistent with the global public interest. All that either offers is an acknowledgement that authority in the DNS community should lie with stakeholders. Organised through the SOs and ACs. That's the same as where authority in the RIR community lies. As I understand it, it is also pretty similar to where authority in the protocols community lies. It isn't clear to me why the names community would settle for a less reliable and reputable model. Anyhow, much fodder for thought as we come to Paris. I think we have to acknowledge that the differences here are of degree, except in regards to the voluntary model. That one stands on its own as a unique reallocation of authority into a single place in a manner that would create serious risks for all of us in assuring the stability and security of the DNS. best Jordan On 7 July 2015 at 23:52, Avri Doria <avri@acm.org> wrote:
Hi,
To start, I believe that facts are just things that people believe to be the case. I try not to speak of anything stronger that a belief. Both my personal history and world history, even history of science - that bastion of fact, shows me that yesterday's Fact is often just a matter of prejudice, superstition and point of view.
In terms of the accountability problem with the membership model, it has been discussed before. Fairly extensively. Some of the gaps such as those exposed by the UA have been eliminated, but others have not. Some involve the degree to which the various SOAC are really the solid organizations we portray. As I wrote in an earlier message where i spoke of the SOAC themselves:
Having been a member or observer of many of these entities I have fond that they are often disorganized, ruled by a few strong personalities in a sea of apathy, and given to making up rules on the fly when needed. They do not even necessarily follow the rules they have agreed to in the charters, though some do, not all of them. And for the most part, though they are supposed to transparent, most aren't.
Are these structures really fit of unchecked rule? How can we show that?
For me the primary deficit is the loss of checks and balances.
The current system relies on a set of checks and balances between the Board and the rest of the community. The current problem is that the power of the rest of the community seem too weak to many, allowing the Board to seemingly work without any checks on its activities.
By strengthening the community in the designator model, we strengthen the set of checks and balance between the Board and the rest of the community. By doing so, we increase accountability.
There is a reciprocity in this notion of accountability, one that does not require external oversight. We vote them in, can appeal the board in a serious manner and will even be able to vote them out by some yet to be determined procedure. And the Board, can review the degree to which the stakeholder groups are fulfilling their mandate to represent the larger community within the ICANN mission. In a sense there is mutual reciprocal oversight. The Board and the rest of the community check each other and establish a functional balance. Most of the this CCWG's activities are working on the details of these check and balances.
That is other than the grand reorganization of ICANN into a membership organization. Something that leaves the current check and balances behind and attempts to create a major new structure.
In the designator model the Board can make decisions and we can appeal them. And we make recommendations and give advise the Board needs to give it serious consideration on penalty of appeal. In extreme case they can be removed from their duties and we can be subjected to discussions of reorganization.
Going to the membership model eliminates this balance by giving the putative community representatives supreme power. How can that power be appealed? Can membership decisions be appealed, by whom and to whom? Who determines whether the ACSO are adequately representing the global community and living up to their obligations under the bylaws? Membership turns the Board into an administrative unit without sufficient power to act as a check or balance to the ACSOs.
Eliminating any checks and balances on the ACSO from the accountability equation seems to be a critical failure to me in the creation of a new accountability regime. Perhaps if we were going with the individual membership option a degree of accountability to global members could be argued, not sure. But I believe that is not what we are working on as that would involve even greater difficulty to get right. We are not even working on a model where organizations that exist on their own come together to form a group. Our ACSO are artificial organizations created by and within ICANN. Our multistakeholder model depends on the interaction and interplay of these organization with the Board and on the checks and balances between them.
Perhaps you have 'fact based' responses to all the possible accountability questions that NTIA might ask us about this new power structure you favor. I do not believe that you can show how the ACSO will be responsible to the global Internet community. I do not believe you can show how a rogue set of ACSO can be stopped from doing things that harm the organizations or the Internet without allowing the Board some degree of decision making based on the confluence of recommendations and advice received from the various ACSO and the greater community.
As was stated in the call by NTIA, it was up to us to show how anything new we created could be held accountable. As far as I can tell in membership there is no way to hold the members accountable. In the designator model we show how we are adding accountability measures. In the membership model we require the ACSO to verify their own representativity, but I have seen no expression of how they can do that or show that it is the case. When I speak of having a "much higher threshold" in proving ACSO accountabilty to the global public interest, this is what I mean. How are you going to prove, as you say - with the facts that you believe in, that the membership model is more accountable given its unassailable postion in a membership organization.
I have seen no evidence of membership creating greater accountability to the global public interest. I cannot state that I believe it is impossible for it to do so, just that I have seen no evidence of it.
avri
On 06-Jul-15 21:01, Edward Morris wrote:
Hello Avri,
I believe membership raises the issues of accountability to the full diversity of stakeholders to a much higher threshold, including the issue of the degree to which ICANN is accountable to stakeholders not included among our SG/C/RALO/ALS / as well as among parrticpating CCs and govts.
Please, if possible, raise your concerns stating fact rather than belief. Maybe there is something I have missed. There is absolutely no difference in the openness to non ICANN stakeholders between the empowered membership and empowered designator models. At least I don't see any. Both are based upon the current SOAC's. If there is a difference in this area I need to and want to be educated. Please respond with specific and detailed instances or examples of why what you claim is true is. Vague generalities are not particularly helpful. Again, I am open to be educated and persuaded but with substantive fact rather than vague as yet unsubstantiated beliefs.
No model is as open to non SOAC's as is Malcolm's proposal for individual membership. That, again, is a membership model. Do you support this open membership model and if not why not? Would you prefer other models to be looked at that are not based upon the SOAC's? I think that would be a very reasonable position and one I certainly am open to supporting if a workable model would be proposed. As yet I have not seen one. Have you? Should we try to find one?
I think enough of the comments bring out questions of accountability in a mebership organization to make the membership option less than optimal.
What comments are you referring to? Certainly not the public comments which were basically supportive of membership. Are these comments you refer to based upon vague generalities or specific problems? If there are specific problems what specifically are they? Should we not determine whether there are solutions to those problems rather than just dismissing the model outright? If not, what are your views as to the ultimate apparent unenforceability of the designator model in certain areas? Do you disagree with Paul Rosenzweig when he states that "a direct community veto of budget and strategic plan remains essential to accountability"? If not, what do you propose to do in these areas without membership. Should we simply forget them?
I do think there may be another option or two out there and hopefully working with our counsel we'll find them.
In the interim, I really am looking to be educated. No one has taught me more about ICANN since I became involved in it than you Avri. I'm just not easily persuadable by vague opinions, I'm a fact based sort of guy. As this process has moved forward I've seen your views and positions change. To me, that is an admirable sign of someone truly looking for an optimal answer rather than one who is clinging to a defined position. I'm just having some trouble understanding, factually, the specific objections you are now raising about membership. I hope you can help me understand so I can better test and evaluate my own views..
Thanks,
Ed
On 06-Jul-15 19:05, Edward Morris wrote: > +1. Well said. > > > On Mon, Jul 6, 2015 at 9:04 PM, Jonathan Zuck <JZuck@actonline.org <mailto:JZuck@actonline.org> > <mailto:JZuck@actonline.org <mailto:JZuck@actonline.org>>> wrote: > > Hmm. I think it’s important to bear in mind that there was > overwhelming consensus among the public comments to support the > membership model. The detractors from the model, while important > and perhaps critical, are not in the majority. I’m not sure this > process speaks to how we better use counsel as much as how we > achieve consensus on principles. > > > > > > > *From:*accountability-cross-community-bounces@icann.org <mailto:accountability-cross-community-bounces@icann.org> > <mailto:accountability-cross-community-bounces@icann.org <mailto:accountability-cross-community-bounces@icann.org>> > [mailto:accountability-cross-community-bounces@icann.org <mailto:accountability-cross-community-bounces@icann.org> > <mailto:accountability-cross-community-bounces@icann.org <mailto:accountability-cross-community-bounces@icann.org>>] *On > Behalf Of *Seun Ojedeji > *Sent:* Monday, July 6, 2015 3:50 PM > *To:* Becky Burr > *Cc:* accountability-cross-community@icann.org <mailto:accountability-cross-community@icann.org> > <mailto:accountability-cross-community@icann.org <mailto:accountability-cross-community@icann.org>> > *Subject:* Re: [CCWG-ACCT] Who is managing the lawyers and what > have they beenasked to do? > > > > Hi Becky, > > Thanks for asking, item 3 is actually in connection to the fact > that such veto may not be possible without item 1(as I understood > it) and that is why I said an indirect veto can happen not that I > was entirely suggesting that those powers be off the table. > > It seem however that folks are only looking at the powers and not > at what it will take to have them. > > By the way, I also did put in a reservation that we may not > necessarily agree with those views but my concern is mainly that > the ccwg does not spend so much time developing proposals that we > know has certain implementation requirements that are not > compatible with the ICANN community structure. I think we should > learn from the the past (based on comments from the last PC) and > utilize legal council and volunteer hours more effectively. > > FWIW speaking as participant. > > Regards > > On 6 Jul 2015 8:08 pm, "Burr, Becky" <Becky.Burr@neustar.biz <mailto:Becky.Burr@neustar.biz> > <mailto:Becky.Burr@neustar.biz <mailto:Becky.Burr@neustar.biz>>> wrote: > > Seun, > > > > I am not sure why we would take direct budget/strat plan veto > off the table. Could you explain? Thanks. > > > > Becky > > J. Beckwith Burr > > *Neustar, Inc. /* Deputy General Counsel and Chief Privacy Officer > > 1775 Pennsylvania Avenue NW, Washington, DC 20006 > > Office: + 1.202.533.2932 <tel:%2B%201.202.533.2932> <tel:%2B%201.202.533.2932> Mobile: > +1.202.352.6367 <tel:%2B1.202.352.6367> > <tel:%2B1.202.352.6367> / becky.burr@neustar.biz <mailto:becky.burr@neustar.biz> > <mailto:becky.burr@neustar.biz <mailto:becky.burr@neustar.biz>> / www.neustar.biz <http://www.neustar.biz> > <http://www.neustar.biz> > > > > *From: *Seun Ojedeji <seun.ojedeji@gmail.com <mailto:seun.ojedeji@gmail.com> > <mailto:seun.ojedeji@gmail.com <mailto:seun.ojedeji@gmail.com>>> > *Date: *Monday, July 6, 2015 at 11:09 AM > *To: *Robin Gross <robin@ipjustice.org <mailto:robin@ipjustice.org> > <mailto:robin@ipjustice.org <mailto:robin@ipjustice.org>>> > *Cc: *Accountability Community > <accountability-cross-community@icann.org <mailto:accountability-cross-community@icann.org> > <mailto:accountability-cross-community@icann.org <mailto:accountability-cross-community@icann.org>>> > *Subject: *Re: [CCWG-ACCT] Who is managing the lawyers and > what have they beenasked to do? > > > > Hi, > > I have no problem with having a new proposal presented. > However it is important that there some adherence to basic > principles on proposals that the ccwg would not want to > explore. Three areas comes to mind: > > - Its my understanding that anything that will turn some/all > of the SO/AC to members and thereby exposing them to legal > challenge is not acceptable > > - Its my understanding that anything that allows removal of > individual board member without the approval of the entire(or > larger part) of the community is not acceptable > > - Its my understanding that a solution that allows direct > community veto on certain elements like budget, strategic plan > et all is not acceptable but an indirect enforcement could be > considered (i.e using a power to get another power executed > indirectly) > > > > Some/none of the above may be acceptable by us, but my point > is that there should be some focus going forward, especially > if the target of ICANN54 is to be meet > > Regards > > > > > > On Mon, Jul 6, 2015 at 3:37 PM, Robin Gross > <robin@ipjustice.org <mailto:robin@ipjustice.org> <mailto:robin@ipjustice.org <mailto:robin@ipjustice.org>>> wrote: > > I would also like to hear what they propose at this > stage. I really don't see how it could hurt to have > another proposal to consider. Larry Strickling did say he > wanted us to be sure we examined all the options carefully. > > > > Thanks, > > Robin > > > > On Jul 6, 2015, at 7:32 AM, Greg Shatan wrote: > > > > I agree. We should have the benefit of their thoughts. > > > > Greg > > > > On Mon, Jul 6, 2015 at 9:38 AM, Jordan Carter > <jordan@internetnz.net.nz <mailto:jordan@internetnz.net.nz> > <mailto:jordan@internetnz.net.nz <mailto:jordan@internetnz.net.nz>>> wrote: > > Well, I would really really like to see what the > creative thinking they have done has suggested. I > trust our ability as a group to make decisions, > and do not believe we should cut off input from > any direction... > > > > Jordan > > > > On 7 July 2015 at 01:13, James Gannon > <james@cyberinvasion.net <mailto:james@cyberinvasion.net> > <mailto:james@cyberinvasion.net <mailto:james@cyberinvasion.net>>> wrote: > > Hey Avri, > > > > Yes the 3rd model was brought up, and the > lawyers feel that it might be a cleaner way > for us to get the powers that we need. > > But without a call from the CCWG to present it > they feel that its not their position to > propose a model on their own initiative. > > > > Personally i would like to see what they have > come up with but the CCWG would need to ask as > an overall group for the chairs to direct them > to give some more information on the model if > we wanted it. > > I think if after we hear from them on Tuesdays > call we still feel we might have some > shortcomings that it might be the time to ask > them about the 3rd option. > > > > Also +1 I think they are really enjoying the > work and are finding themselves getting more > and more involved as we go on, which is great > for the CCWG as the more background and > details they know the better that are able to > give us solid well reasoned advice in my opinion. > > > > -James > > > > > > On 6 Jul 2015, at 13:19, Avri Doria > <avri@acm.org <mailto:avri@acm.org> <mailto:avri@acm.org <mailto:avri@acm.org>>> wrote: > > > > Hi, > > I have not had a chance to get back to the > recording of the call. Not > sure I will, that time was the time I had > for that call and that is why > i was listening then. > > In any case, the lawyers were talking > about a new model they had come up > with, but not knowing what to do about it > since they had not been asked > for a new model. > > I was told to leave before I got to hear > the end of that story. Or about > the model itself. Anyone who has had a > chance to listen, whatever happened? > > avri > > ps. sometimes i think the lawyers are > getting interested in what we are > doing, almost like stakeholders. not that > i expect them to give up their > hourly rates because they are stakeholders. > > On 06-Jul-15 05:07, James Gannon wrote: > > > I listened to the last co-chairs > lawyers’ call at; > https://community.icann.org/pages/viewpage.action?pageId=53782602 > < https://urldefense.proofpoint.com/v2/url?u=https-3A__community.icann.org_pag...
> (I’m a glutton for punishment) > > > > It was a short call and I’ll make a > particular note that Leon and > Mathieu made a point of not making any > decisions on behalf of the > whole group and made it clear anything > requiring a decision must be > made by the overall CCWG, so I was > happy with that side of things > myself, most of my own fears about not > having a sub-group are somewhat > assuaged. > > So my paraphrasing and overview is: > > > > · Lawyers working hard on the > models for us collaboratively > between the two firms since BA > > · Lawyers are prepping a > presentation to give to us ASAP > before Paris if possible, that > presentation will take the majority of > a call, it can’t be done quickly, they > need about 45mins uninterrupted > to go through the presentation and > then would likely need Q&A time > after they present. > > · Some small > wording/clarifications to come back to > the CCWG > to make sure everyone’s on the same page > > · Everyone feels Paris will be > an important time for the > models, lawyers will be ready for a > grilling on the details of the > models from us to flesh out any of our > concerns/questions > > > > Note that the above is all my very > condensed overview of the > conversations. > > It seemed like a productive call to me. > > > > -James > > > > > > *From:*accountability-cross-community-bounces@icann.org <mailto:accountability-cross-community-bounces@icann.org> > <mailto:accountability-cross-community-bounces@icann.org <mailto:accountability-cross-community-bounces@icann.org>> > [mailto:accountability-cross-community-bounces@icann.org <mailto:accountability-cross-community-bounces@icann.org> > <mailto:accountability-cross-community-bounces@icann.org <mailto:accountability-cross-community-bounces@icann.org>>] > *On Behalf > Of *Greg Shatan > *Sent:* Monday, July 06, 2015 5:33 AM > *To:* Carlos Raul > *Cc:* > accountability-cross-community@icann.org <mailto:accountability-cross-community@icann.org> > <mailto:accountability-cross-community@icann.org <mailto:accountability-cross-community@icann.org>> > *Subject:* Re: [CCWG-ACCT] Who is > managing the lawyers and what have > they beenasked to do? > > > > Carlos, > > > > As the legal sub-team was disbanded, > your guess is as good as mine..... > > > > Greg > > > > On Mon, Jul 6, 2015 at 12:27 AM, > Carlos Raul <carlosraulg@gmail.com <mailto:carlosraulg@gmail.com> > <mailto:carlosraulg@gmail.com <mailto:carlosraulg@gmail.com>> > <mailto:carlosraulg@gmail.com <mailto:carlosraulg@gmail.com>>> wrote: > > Thank you Greg! > > > > It makes a lot of sense and I guess > those are all good reasons as > we hired them in the first place. > What are the next steps now? > What happened in the recent call? > > > > Best regards > > > > > Carlos Raúl Gutiérrez > > +506 8837 7176 <tel:%2B506%208837%207176> > <tel:%2B506%208837%207176> > <tel:%2B506%208837%207176> > > Skype carlos.raulg > > _________ > > Apartado 1571-1000 > > *COSTA RICA* > > > > > > On Mon, Jul 6, 2015 at 12:02 AM, > Greg Shatan > <gregshatanipc@gmail.com <mailto:gregshatanipc@gmail.com> > <mailto:gregshatanipc@gmail.com <mailto:gregshatanipc@gmail.com>> <mailto:gregshatanipc@gmail.com <mailto:gregshatanipc@gmail.com>>> > wrote: > > Chris, > > > > That was tried to some extent, > at least in the CWG. > > > > There are several substantial > problems with that approach. > > > > First, lawyers are not > fungible. The particular legal skills, > background and experience > required for the issues before both > WGs are fairly specific, and in > some cases, very specific. > The primary core competency > needed here is corporate > governance. While a number of > lawyers in the community have a > reasonable working knowledge of > the area, at least in their > home jurisdictions, I don't > believe there are any who would > say that this is their primary > focus and expertise -- at least > none who identified themselves > to either WG. The second core > competency required, especially > in the CCWG, is non-profit > law. Again there are a number > of lawyers with a decent working > knowledge of this fairly broad > field, but not as a primary > focus. There may be a couple > of lawyers in the community who > would claim this fairly broad > field as a primary focus and > expertise -- but none who > became involved with either WG. > This then becomes further > narrowed by jurisdiction. Since > ICANN is a California > non-profit corporation, US corporate > governance and non-profit > experience is more relevant than > experience from other > jurisdictions, and California law > corporate governance and > non-profit experience is more > relevant than that from other > US jurisdictions. In my > experience, the more a US > lawyer focuses on a particular > substantive area, the greater > their knowledge of and comfort > with state law issues in US > state jurisdictions other than > their own (e.g., someone who > spend a majority of their time > working in corporate governance > will have a greater knowledge > of the law, issues, approaches > and trends outside their > primary state of practice, > while someone who spends a > relatively small amount of time > in the area will tend to feel > less comfortable outside their > home jurisdiction). (An > exception is that many US > lawyers have specific knowledge of > certain Delaware corporate law > issues, because Delaware often > serves as the state of > incorporation for entities operating > elsewhere.) > > > > Second, lawyers in the > community will seldom be seen as > neutral advisors, no matter how > hard they try. They will tend > to be seen as working from > their point of view or stakeholder > group or "special interest" or > desired outcome, even if they > are trying to be even-handed. > Over the course of time, this > balancing act would tend to > become more untenable. > > > > Third, the amount of time it > would take to provide truly > definitive legal advice > (research, careful drafting, > discussions with relevant > "clients", etc.) would be > prohibitive, even compared to > the substantial amount of time > it takes to provide reasonably > well-informed and competent > legal-based viewpoints in the > course of either WG's work. > > > > Fourth, in order to formally > counsel the community, the lawyer > or lawyers in question would > have to enter into a formal > attorney-client relationship. > Under US law, an > attorney-client relationship > may inadvertently be created by > the attorney's actions, so > attorneys try to be careful about > not providing formal legal > advice without a formal engagement > (sometimes providing an > explicit "caveat" if they feel they > might be getting too close to > providing legal advice). If the > attorney is employed by a > corporation, they would likely be > unable to take on such a > representation due to the terms of > their employment, and that is > before getting to an exploration > of conflict of interest > issues. If the attorney is employed > by a firm, the firm would have > to sign off on the > representation, again dealing > with potential conflict issues. > > > > Fifth, even if the above issues > were all somehow resolved, it > would be highly unlikely that > any such attorney would provide > substantial amounts of advice, > written memos, counseling, etc. > on a pro bono (unpaid) basis, > especially given the > time-consuming nature of the > work. Pro bono advice and > representation is generally > accorded to individuals and > entities that could not > otherwise be able to pay for it. That > is clearly not the case here, > at least with ICANN taking > financial responsibility. It > would likely be very difficult > to justify this to, e.g., a > firm's pro bono committee, as a > valid pro bono representation. > > > > Sixth, if ICANN were not taking > the role they are taking, it > would be extremely difficult to > identify the "client" in this > situation. The "community" is > a collection of sectors, > mostly represented by various > ICANN-created structures, which > in turn have members of widely > varying types (individuals, > corporations, sovereigns, > non-profits, IGOs, partnerships, > etc.). This would also make it > extremely difficult to enter > into a formal counseling > relationship with the "community." > > > > Seventh, this is a sensitive, > high-profile, transformative set > of actions we are involved in, > which is subject to an > extraordinary amount of > scrutiny, not least that of the NTIA > and the US Congress. That > eliminates any possibility of > providing informal, > off-the-cuff, reasonably well-informed but > not quite expert, "non-advice" > advice -- which might happen in > a more obscure exercise. > There's simply too much at stake. > > > > Finally, I would say that a > number of attorneys involved in > one or both of the WGs are in > fact providing a significant > amount of legal knowledge and > experience to the WGs, helping > to frame issues, whether in > terms of general leadership (e.g., > Thomas, Leon, Becky) or more > specifically in a > "lawyer-as-client" capacity -- > working with outside counsel, > tackling the more legalistic > issues, providing as much legal > background and knowledge as > possible without providing the > type of formal legal advice > that would tend to create an > attorney-client relationship, > etc. So I do think that many > lawyers in the community are > giving greatly of themselves in > this process, even though they > cannot and would not be able to > formally be engaged by the > community as its "counsel of record." > > > > In sum, it might be a nice > thought in theory, but it is no way > a practical possibility. > > > > Greg > > > > On Sat, Jul 4, 2015 at 3:08 AM, > CW Lists > <lists@christopherwilkinson.eu <mailto:lists@christopherwilkinson.eu
> <mailto:lists@christopherwilkinson.eu <mailto:lists@christopherwilkinson.eu>> > <mailto:lists@christopherwilkinson.eu <mailto:lists@christopherwilkinson.eu>>> > wrote: > > Good morning: > > > > I had decided not to enter > this debate. But I am bound to > say that the thought had > occurred to me at the time, that > there were more than enough > qualified lawyers in this > community that they could > perfectly well have counselled … > themselves. > > > > CW > > > > On 04 Jul 2015, at 08:41, > Greg Shatan > <gregshatanipc@gmail.com <mailto:gregshatanipc@gmail.com> > <mailto:gregshatanipc@gmail.com <mailto:gregshatanipc@gmail.com>> <mailto:gregshatanipc@gmail.com <mailto:gregshatanipc@gmail.com>>> > wrote: > > > > Wolfgang, > > > > To your first point, > the billing rates were clearly > stated in the law > firms' engagement letters. > > > > To your second point, > I'm sure we could all think of > other projects and > goals where the money could have > been "better spent." > You've stated yours. But that > is not the proper > test. This was and continues to be > money we need to spend > to achieve the goals we have > set. Under different > circumstances, perhaps it would > be a different amount > (or maybe none at all). But it > was strongly felt at > the outset that the group needed > to have independent > counsel. Clearly that counsel > needed to have > recognized expertise in the appropriate > legal areas. As such, > I believe we made excellent > choices and have been > very well represented. > > > > As to your "better > spent" test, I just had to have > $4000.00 worth of > emergency dental work done. This > money definitely could > have been "better spent" on a > nice vacation, > redecorating our living room or on > donations to my favored > charitable causes. But I had > no choice, other than > to choose which dentist and > endodontist I went to, > and I wasn't going to cut > corners -- the dental > work was a necessity. > Similarly, the legal > work we are getting is a > necessity and whether > we would have preferred to spend > the money elsewhere is > not merely irrelevant, it is an > incorrect and > inappropriate proposition. Many of us > are investing vast > quantities of time that could be > "better spent" > elsewhere as well, but we are willing > (grudgingly sometimes) > to spend the time it takes to > get it right, because > we believe it needs to be done. > This is the appropriate > measure, whether it comes to > our time or counsels' > time. If we believe in this > project, we have to > invest in it, and do what it takes > to succeed. > > > > Of course, this > investment has to be managed wisely > and cost-effectively, > and by and large, I believe the > CCWG has done that > reasonably well -- not perfectly, > but reasonably well and > with "course corrections" > along the way intended > to improve that management. > It's certainly fair to > ask, as Robin has done, for a > better understanding of > that management as we go > along. But asserting > that the money could have been > "better spent" > elsewhere sets up a false test that we > should not use to > evaluate this important aspect of > our work. Instead, we > need to focus on whether the > money was "well spent" > on these critical legal > services. If you have > reason to believe it was not, > that could be useful to > know. That would at least be > the right discussion to > have. > > > > Greg > > > > On Sat, Jul 4, 2015 at > 1:13 AM, "Kleinwächter, > Wolfgang" > <wolfgang.kleinwaechter@medienkomm.uni-halle.de <mailto:wolfgang.kleinwaechter@medienkomm.uni-halle.de> > <mailto:wolfgang.kleinwaechter@medienkomm.uni-halle.de <mailto:wolfgang.kleinwaechter@medienkomm.uni-halle.de>> > <mailto:wolfgang.kleinwaechter@medienkomm.uni-halle.de <mailto:wolfgang.kleinwaechter@medienkomm.uni-halle.de>>> > wrote: > > HI, > > and please if you > ask outside lawyers, ask for the > price tag in > advance. Some of the money spend fo > lawyers could have > been spend better to suppport > and enable Internet > user and non-commercial groups > in developing > countries. > > > Wolfgang > > > > > > -----Ursprüngliche > Nachricht----- > Von: > accountability-cross-community-bounces@icann.org <mailto:accountability-cross-community-bounces@icann.org> > <mailto:accountability-cross-community-bounces@icann.org <mailto:accountability-cross-community-bounces@icann.org>> > <mailto:accountability-cross-community-bounces@icann.org <mailto:accountability-cross-community-bounces@icann.org>> > im Auftrag von > Robin Gross > Gesendet: Fr > 03.07.2015 14:57 > An: accountability-cross-community@icann.org <mailto:accountability-cross-community@icann.org> > <mailto:accountability-cross-community@icann.org <mailto:accountability-cross-community@icann.org>> > <mailto:accountability-cross-community@icann.org <mailto:accountability-cross-community@icann.org>> > Community > Betreff: > [CCWG-ACCT] Who is managing the lawyers > and what have they > beenasked to do? > > > After the legal > sub-team was disbanded, I haven't > been able to follow > what communications are > happening with CCWG > and the independent lawyers we > retained. > > I understand the > lawyers are currently "working on > the various models" > and will present something to > us regarding that > work soon. However, *what > exactly* have the > lawyers been asked to do and > *who* asked them? > If there are written > instructions, may > the group please see them? Who > is now taking on > the role of managing the outside > attorneys for this > group, including providing > instructions and > certifying legal work? > > Sorry, but I'm > really trying to understand what is > happening, and > there doesn't seem to be much > information in the > public on this (or if there is, > I can't find it). > Thanks for any information > anyone can provide. > > Best, > Robin > > _______________________________________________ > Accountability-Cross-Community > mailing list > Accountability-Cross-Community@icann.org <mailto:Accountability-Cross-Community@icann.org> > <mailto:Accountability-Cross-Community@icann.org <mailto:Accountability-Cross-Community@icann.org>> > <mailto:Accountability-Cross-Community@icann.org <mailto:Accountability-Cross-Community@icann.org>> > https://mm.icann.org/mailman/listinfo/accountability-cross-community > < https://urldefense.proofpoint.com/v2/url?u=https-3A__mm.icann.org_mailman_li...
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-- Jordan Carter Chief Executive *InternetNZ* 04 495 2118 (office) | +64 21 442 649 (mob) jordan@internetnz.net.nz Skype: jordancarter *A better world through a better Internet *
Hi, I do want to point out that I have moved away from the voluntary community model, though it remains dear to my heart to accepting a form of designator model. I also see that the empowered membership models, is in some ways, similar to the empowered designator model. Unfortunately it also has the ability to slide down the slope to a full membership model. and as I have argued, I think that leaves ICANN not only without proper checks and balnces, but into the jaws of the courts. avri On 07-Jul-15 08:29, Jordan Carter wrote:
Hi all,
Firstly I think facts speak for themselves, but it is our understanding of them - including how they change through the accumulation of further facts - that changes over time. And I am not a scientist. Nor a lawyer :-)
On Avri's broad point, it does summon up a nub of the debate. I reiterate for the record that my concern with ICANN's post-transition reality is that power is concentrated from the status quo (NTIA - Board, with community advice) into a newly powerful and concentrated single entity - the ICANN Board.
The purpose of a membership or designator model is to distribute power into the global multistakeholder community, as organised through the SO/AC structure, which is how ICANN organises the various stakeholders with interests in the DNS.
There's no claim of perfection in such a model. Quite the opposite. The whole point of a distribution of power is to share accountability and responsibility more broadly.
The "voluntary" model concentrates power in one place to an unhealthy degree. It is difficult for me to understand how anyone could accept a clear worsening of accountability and concentration of power that it represents, compared with the status quo.
Seems to me the sole difference between members and designators comes down to how strong you want the authority of the community to be. Neither represents "total" power: there is no abrogation in either of the Board's responsibility to govern ICANN consistent with its limited mission and consistent with the global public interest.
All that either offers is an acknowledgement that authority in the DNS community should lie with stakeholders. Organised through the SOs and ACs.
That's the same as where authority in the RIR community lies.
As I understand it, it is also pretty similar to where authority in the protocols community lies.
It isn't clear to me why the names community would settle for a less reliable and reputable model.
Anyhow, much fodder for thought as we come to Paris. I think we have to acknowledge that the differences here are of degree, except in regards to the voluntary model. That one stands on its own as a unique reallocation of authority into a single place in a manner that would create serious risks for all of us in assuring the stability and security of the DNS.
best Jordan
On 7 July 2015 at 23:52, Avri Doria <avri@acm.org <mailto:avri@acm.org>> wrote:
Hi,
To start, I believe that facts are just things that people believe to be the case. I try not to speak of anything stronger that a belief. Both my personal history and world history, even history of science - that bastion of fact, shows me that yesterday's Fact is often just a matter of prejudice, superstition and point of view.
In terms of the accountability problem with the membership model, it has been discussed before. Fairly extensively. Some of the gaps such as those exposed by the UA have been eliminated, but others have not. Some involve the degree to which the various SOAC are really the solid organizations we portray. As I wrote in an earlier message where i spoke of the SOAC themselves: > Having been a member or observer of many of these entities I have fond > that they are often disorganized, ruled by a few strong personalities in > a sea of apathy, and given to making up rules on the fly when needed. > They do not even necessarily follow the rules they have agreed to in the > charters, though some do, not all of them. And for the most part, though > they are supposed to transparent, most aren't.
Are these structures really fit of unchecked rule? How can we show that?
For me the primary deficit is the loss of checks and balances.
The current system relies on a set of checks and balances between the Board and the rest of the community. The current problem is that the power of the rest of the community seem too weak to many, allowing the Board to seemingly work without any checks on its activities.
By strengthening the community in the designator model, we strengthen the set of checks and balance between the Board and the rest of the community. By doing so, we increase accountability.
There is a reciprocity in this notion of accountability, one that does not require external oversight. We vote them in, can appeal the board in a serious manner and will even be able to vote them out by some yet to be determined procedure. And the Board, can review the degree to which the stakeholder groups are fulfilling their mandate to represent the larger community within the ICANN mission. In a sense there is mutual reciprocal oversight. The Board and the rest of the community check each other and establish a functional balance. Most of the this CCWG's activities are working on the details of these check and balances.
That is other than the grand reorganization of ICANN into a membership organization. Something that leaves the current check and balances behind and attempts to create a major new structure.
In the designator model the Board can make decisions and we can appeal them. And we make recommendations and give advise the Board needs to give it serious consideration on penalty of appeal. In extreme case they can be removed from their duties and we can be subjected to discussions of reorganization.
Going to the membership model eliminates this balance by giving the putative community representatives supreme power. How can that power be appealed? Can membership decisions be appealed, by whom and to whom? Who determines whether the ACSO are adequately representing the global community and living up to their obligations under the bylaws? Membership turns the Board into an administrative unit without sufficient power to act as a check or balance to the ACSOs.
Eliminating any checks and balances on the ACSO from the accountability equation seems to be a critical failure to me in the creation of a new accountability regime. Perhaps if we were going with the individual membership option a degree of accountability to global members could be argued, not sure. But I believe that is not what we are working on as that would involve even greater difficulty to get right. We are not even working on a model where organizations that exist on their own come together to form a group. Our ACSO are artificial organizations created by and within ICANN. Our multistakeholder model depends on the interaction and interplay of these organization with the Board and on the checks and balances between them.
Perhaps you have 'fact based' responses to all the possible accountability questions that NTIA might ask us about this new power structure you favor. I do not believe that you can show how the ACSO will be responsible to the global Internet community. I do not believe you can show how a rogue set of ACSO can be stopped from doing things that harm the organizations or the Internet without allowing the Board some degree of decision making based on the confluence of recommendations and advice received from the various ACSO and the greater community.
As was stated in the call by NTIA, it was up to us to show how anything new we created could be held accountable. As far as I can tell in membership there is no way to hold the members accountable. In the designator model we show how we are adding accountability measures. In the membership model we require the ACSO to verify their own representativity, but I have seen no expression of how they can do that or show that it is the case. When I speak of having a "much higher threshold" in proving ACSO accountabilty to the global public interest, this is what I mean. How are you going to prove, as you say - with the facts that you believe in, that the membership model is more accountable given its unassailable postion in a membership organization.
I have seen no evidence of membership creating greater accountability to the global public interest. I cannot state that I believe it is impossible for it to do so, just that I have seen no evidence of it.
avri
On 06-Jul-15 21:01, Edward Morris wrote: > Hello Avri, > > > I believe membership raises the issues of accountability to the full > diversity of stakeholders to a much higher threshold, including the > issue of the degree to which ICANN is accountable to stakeholders not > included among our SG/C/RALO/ALS / as well as among parrticpating CCs > and govts. > > > > Please, if possible, raise your concerns stating fact rather than > belief. Maybe there is something I have missed. There is absolutely no > difference in the openness to non ICANN stakeholders between the > empowered membership and empowered designator models. At least I don't > see any. Both are based upon the current SOAC's. If there is a > difference in this area I need to and want to be educated. Please > respond with specific and detailed instances or examples of why what > you claim is true is. Vague generalities are not particularly helpful. > Again, I am open to be educated and persuaded but with substantive > fact rather than vague as yet unsubstantiated beliefs. > > No model is as open to non SOAC's as is Malcolm's proposal for > individual membership. That, again, is a membership model. Do you > support this open membership model and if not why not? Would you > prefer other models to be looked at that are not based upon the > SOAC's? I think that would be a very reasonable position and one I > certainly am open to supporting if a workable model would be proposed. > As yet I have not seen one. Have you? Should we try to find one? > > > > I think enough of the comments bring out questions of > accountability in > a mebership organization to make the membership option less than > optimal. > > > > What comments are you referring to? Certainly not the public comments > which were basically supportive of membership. Are these comments you > refer to based upon vague generalities or specific problems? If there > are specific problems what specifically are they? Should we not > determine whether there are solutions to those problems rather than > just dismissing the model outright? If not, what are your views as to > the ultimate apparent unenforceability of the designator model in > certain areas? Do you disagree with Paul Rosenzweig when he states > that "a direct community veto of budget and strategic plan remains > essential to accountability"? If not, what do you propose to do in > these areas without membership. Should we simply forget them? > > I do think there may be another option or two out there and hopefully > working with our counsel we'll find them. > > In the interim, I really am looking to be educated. No one has taught > me more about ICANN since I became involved in it than you Avri. I'm > just not easily persuadable by vague opinions, I'm a fact based sort > of guy. As this process has moved forward I've seen your views and > positions change. To me, that is an admirable sign of someone truly > looking for an optimal answer rather than one who is clinging to a > defined position. I'm just having some trouble understanding, > factually, the specific objections you are now raising about > membership. I hope you can help me understand so I can better test and > evaluate my own views.. > > Thanks, > > Ed > > > > On 06-Jul-15 19:05, Edward Morris wrote: > > +1. Well said. > > > > > > On Mon, Jul 6, 2015 at 9:04 PM, Jonathan Zuck > <JZuck@actonline.org <mailto:JZuck@actonline.org> <mailto:JZuck@actonline.org <mailto:JZuck@actonline.org>> > > <mailto:JZuck@actonline.org <mailto:JZuck@actonline.org> <mailto:JZuck@actonline.org <mailto:JZuck@actonline.org>>>> wrote: > > > > Hmm. I think it’s important to bear in mind that there was > > overwhelming consensus among the public comments to support the > > membership model. The detractors from the model, while important > > and perhaps critical, are not in the majority. I’m not sure this > > process speaks to how we better use counsel as much as how we > > achieve consensus on principles. > > > > > > > > > > > > > > *From:*accountability-cross-community-bounces@icann.org <mailto:accountability-cross-community-bounces@icann.org> > <mailto:accountability-cross-community-bounces@icann.org <mailto:accountability-cross-community-bounces@icann.org>> > > <mailto:accountability-cross-community-bounces@icann.org <mailto:accountability-cross-community-bounces@icann.org> > <mailto:accountability-cross-community-bounces@icann.org <mailto:accountability-cross-community-bounces@icann.org>>> > > [mailto:accountability-cross-community-bounces@icann.org <mailto:accountability-cross-community-bounces@icann.org> > <mailto:accountability-cross-community-bounces@icann.org <mailto:accountability-cross-community-bounces@icann.org>> > > <mailto:accountability-cross-community-bounces@icann.org <mailto:accountability-cross-community-bounces@icann.org> > <mailto:accountability-cross-community-bounces@icann.org <mailto:accountability-cross-community-bounces@icann.org>>>] *On > > Behalf Of *Seun Ojedeji > > *Sent:* Monday, July 6, 2015 3:50 PM > > *To:* Becky Burr > > *Cc:* accountability-cross-community@icann.org <mailto:accountability-cross-community@icann.org> > <mailto:accountability-cross-community@icann.org <mailto:accountability-cross-community@icann.org>> > > <mailto:accountability-cross-community@icann.org <mailto:accountability-cross-community@icann.org> > <mailto:accountability-cross-community@icann.org <mailto:accountability-cross-community@icann.org>>> > > *Subject:* Re: [CCWG-ACCT] Who is managing the lawyers and what > > have they beenasked to do? > > > > > > > > Hi Becky, > > > > Thanks for asking, item 3 is actually in connection to the fact > > that such veto may not be possible without item 1(as I > understood > > it) and that is why I said an indirect veto can happen not > that I > > was entirely suggesting that those powers be off the table. > > > > It seem however that folks are only looking at the powers > and not > > at what it will take to have them. > > > > By the way, I also did put in a reservation that we may not > > necessarily agree with those views but my concern is mainly that > > the ccwg does not spend so much time developing proposals > that we > > know has certain implementation requirements that are not > > compatible with the ICANN community structure. I think we should > > learn from the the past (based on comments from the last PC) and > > utilize legal council and volunteer hours more effectively. > > > > FWIW speaking as participant. > > > > Regards > > > > On 6 Jul 2015 8:08 pm, "Burr, Becky" <Becky.Burr@neustar.biz <mailto:Becky.Burr@neustar.biz> > <mailto:Becky.Burr@neustar.biz <mailto:Becky.Burr@neustar.biz>> > > <mailto:Becky.Burr@neustar.biz <mailto:Becky.Burr@neustar.biz> > <mailto:Becky.Burr@neustar.biz <mailto:Becky.Burr@neustar.biz>>>> wrote: > > > > Seun, > > > > > > > > I am not sure why we would take direct budget/strat plan > veto > > off the table. Could you explain? Thanks. > > > > > > > > Becky > > > > J. Beckwith Burr > > > > *Neustar, Inc. /* Deputy General Counsel and Chief > Privacy Officer > > > > 1775 Pennsylvania Avenue NW, Washington, DC 20006 > > > > Office: + 1.202.533.2932 <tel:%2B%201.202.533.2932> <tel:%2B%201.202.533.2932> > <tel:%2B%201.202.533.2932> Mobile: > > +1.202.352.6367 <tel:%2B1.202.352.6367> > > <tel:%2B1.202.352.6367> / becky.burr@neustar.biz <mailto:becky.burr@neustar.biz> > <mailto:becky.burr@neustar.biz <mailto:becky.burr@neustar.biz>> > > <mailto:becky.burr@neustar.biz <mailto:becky.burr@neustar.biz> > <mailto:becky.burr@neustar.biz <mailto:becky.burr@neustar.biz>>> / www.neustar.biz <http://www.neustar.biz> > <http://www.neustar.biz> > > <http://www.neustar.biz> > > > > > > > > *From: *Seun Ojedeji <seun.ojedeji@gmail.com <mailto:seun.ojedeji@gmail.com> > <mailto:seun.ojedeji@gmail.com <mailto:seun.ojedeji@gmail.com>> > > <mailto:seun.ojedeji@gmail.com <mailto:seun.ojedeji@gmail.com> > <mailto:seun.ojedeji@gmail.com <mailto:seun.ojedeji@gmail.com>>>> > > *Date: *Monday, July 6, 2015 at 11:09 AM > > *To: *Robin Gross <robin@ipjustice.org <mailto:robin@ipjustice.org> > <mailto:robin@ipjustice.org <mailto:robin@ipjustice.org>> > > <mailto:robin@ipjustice.org <mailto:robin@ipjustice.org> <mailto:robin@ipjustice.org <mailto:robin@ipjustice.org>>>> > > *Cc: *Accountability Community > > <accountability-cross-community@icann.org <mailto:accountability-cross-community@icann.org> > <mailto:accountability-cross-community@icann.org <mailto:accountability-cross-community@icann.org>> > > <mailto:accountability-cross-community@icann.org <mailto:accountability-cross-community@icann.org> > <mailto:accountability-cross-community@icann.org <mailto:accountability-cross-community@icann.org>>>> > > *Subject: *Re: [CCWG-ACCT] Who is managing the lawyers and > > what have they beenasked to do? > > > > > > > > Hi, > > > > I have no problem with having a new proposal presented. > > However it is important that there some adherence to basic > > principles on proposals that the ccwg would not want to > > explore. Three areas comes to mind: > > > > - Its my understanding that anything that will turn some/all > > of the SO/AC to members and thereby exposing them to legal > > challenge is not acceptable > > > > - Its my understanding that anything that allows removal of > > individual board member without the approval of the > entire(or > > larger part) of the community is not acceptable > > > > - Its my understanding that a solution that allows direct > > community veto on certain elements like budget, > strategic plan > > et all is not acceptable but an indirect enforcement > could be > > considered (i.e using a power to get another power executed > > indirectly) > > > > > > > > Some/none of the above may be acceptable by us, but my point > > is that there should be some focus going forward, especially > > if the target of ICANN54 is to be meet > > > > Regards > > > > > > > > > > > > On Mon, Jul 6, 2015 at 3:37 PM, Robin Gross > > <robin@ipjustice.org <mailto:robin@ipjustice.org> <mailto:robin@ipjustice.org <mailto:robin@ipjustice.org>> > <mailto:robin@ipjustice.org <mailto:robin@ipjustice.org> <mailto:robin@ipjustice.org <mailto:robin@ipjustice.org>>>> wrote: > > > > I would also like to hear what they propose at this > > stage. I really don't see how it could hurt to have > > another proposal to consider. Larry Strickling did > say he > > wanted us to be sure we examined all the options > carefully. > > > > > > > > Thanks, > > > > Robin > > > > > > > > On Jul 6, 2015, at 7:32 AM, Greg Shatan wrote: > > > > > > > > I agree. We should have the benefit of their > thoughts. > > > > > > > > Greg > > > > > > > > On Mon, Jul 6, 2015 at 9:38 AM, Jordan Carter > > <jordan@internetnz.net.nz <mailto:jordan@internetnz.net.nz> > <mailto:jordan@internetnz.net.nz <mailto:jordan@internetnz.net.nz>> > > <mailto:jordan@internetnz.net.nz <mailto:jordan@internetnz.net.nz> > <mailto:jordan@internetnz.net.nz <mailto:jordan@internetnz.net.nz>>>> wrote: > > > > Well, I would really really like to see what the > > creative thinking they have done has > suggested. I > > trust our ability as a group to make decisions, > > and do not believe we should cut off input from > > any direction... > > > > > > > > Jordan > > > > > > > > On 7 July 2015 at 01:13, James Gannon > > <james@cyberinvasion.net <mailto:james@cyberinvasion.net> > <mailto:james@cyberinvasion.net <mailto:james@cyberinvasion.net>> > > <mailto:james@cyberinvasion.net <mailto:james@cyberinvasion.net> > <mailto:james@cyberinvasion.net <mailto:james@cyberinvasion.net>>>> wrote: > > > > Hey Avri, > > > > > > > > Yes the 3rd model was brought up, and the > > lawyers feel that it might be a cleaner way > > for us to get the powers that we need. > > > > But without a call from the CCWG to > present it > > they feel that its not their position to > > propose a model on their own initiative. > > > > > > > > Personally i would like to see what they > have > > come up with but the CCWG would need to > ask as > > an overall group for the chairs to > direct them > > to give some more information on the > model if > > we wanted it. > > > > I think if after we hear from them on > Tuesdays > > call we still feel we might have some > > shortcomings that it might be the time > to ask > > them about the 3rd option. > > > > > > > > Also +1 I think they are really enjoying the > > work and are finding themselves getting more > > and more involved as we go on, which is > great > > for the CCWG as the more background and > > details they know the better that are > able to > > give us solid well reasoned advice in my > opinion. > > > > > > > > -James > > > > > > > > > > > > On 6 Jul 2015, at 13:19, Avri Doria > > <avri@acm.org <mailto:avri@acm.org> <mailto:avri@acm.org <mailto:avri@acm.org>> > <mailto:avri@acm.org <mailto:avri@acm.org> <mailto:avri@acm.org <mailto:avri@acm.org>>>> wrote: > > > > > > > > Hi, > > > > I have not had a chance to get back > to the > > recording of the call. Not > > sure I will, that time was the time > I had > > for that call and that is why > > i was listening then. > > > > In any case, the lawyers were talking > > about a new model they had come up > > with, but not knowing what to do > about it > > since they had not been asked > > for a new model. > > > > I was told to leave before I got to hear > > the end of that story. Or about > > the model itself. Anyone who has had a > > chance to listen, whatever happened? > > > > avri > > > > ps. sometimes i think the lawyers are > > getting interested in what we are > > doing, almost like stakeholders. not > that > > i expect them to give up their > > hourly rates because they are > stakeholders. > > > > On 06-Jul-15 05:07, James Gannon wrote: > > > > > > I listened to the last co-chairs > > lawyers’ call at; > > > https://community.icann.org/pages/viewpage.action?pageId=53782602 > > > <https://urldefense.proofpoint.com/v2/url?u=https-3A__community.icann.org_pag...> > > (I’m a glutton for punishment) > > > > > > > > It was a short call and I’ll make a > > particular note that Leon and > > Mathieu made a point of not > making any > > decisions on behalf of the > > whole group and made it clear > anything > > requiring a decision must be > > made by the overall CCWG, so I was > > happy with that side of things > > myself, most of my own fears > about not > > having a sub-group are somewhat > > assuaged. > > > > So my paraphrasing and overview is: > > > > > > > > · Lawyers working hard > on the > > models for us collaboratively > > between the two firms since BA > > > > · Lawyers are prepping a > > presentation to give to us ASAP > > before Paris if possible, that > > presentation will take the > majority of > > a call, it can’t be done > quickly, they > > need about 45mins uninterrupted > > to go through the presentation and > > then would likely need Q&A time > > after they present. > > > > · Some small > > wording/clarifications to come > back to > > the CCWG > > to make sure everyone’s on the > same page > > > > · Everyone feels Paris > will be > > an important time for the > > models, lawyers will be ready for a > > grilling on the details of the > > models from us to flesh out any > of our > > concerns/questions > > > > > > > > Note that the above is all my very > > condensed overview of the > > conversations. > > > > It seemed like a productive call > to me. > > > > > > > > -James > > > > > > > > > > > > > *From:*accountability-cross-community-bounces@icann.org <mailto:accountability-cross-community-bounces@icann.org> > <mailto:accountability-cross-community-bounces@icann.org <mailto:accountability-cross-community-bounces@icann.org>> > > > <mailto:accountability-cross-community-bounces@icann.org <mailto:accountability-cross-community-bounces@icann.org> > <mailto:accountability-cross-community-bounces@icann.org <mailto:accountability-cross-community-bounces@icann.org>>> > > > [mailto:accountability-cross-community-bounces@icann.org <mailto:accountability-cross-community-bounces@icann.org> > <mailto:accountability-cross-community-bounces@icann.org <mailto:accountability-cross-community-bounces@icann.org>> > > > <mailto:accountability-cross-community-bounces@icann.org <mailto:accountability-cross-community-bounces@icann.org> > <mailto:accountability-cross-community-bounces@icann.org <mailto:accountability-cross-community-bounces@icann.org>>>] > > *On Behalf > > Of *Greg Shatan > > *Sent:* Monday, July 06, 2015 > 5:33 AM > > *To:* Carlos Raul > > *Cc:* > > > accountability-cross-community@icann.org <mailto:accountability-cross-community@icann.org> > <mailto:accountability-cross-community@icann.org <mailto:accountability-cross-community@icann.org>> > > > <mailto:accountability-cross-community@icann.org <mailto:accountability-cross-community@icann.org> > <mailto:accountability-cross-community@icann.org <mailto:accountability-cross-community@icann.org>>> > > *Subject:* Re: [CCWG-ACCT] Who is > > managing the lawyers and what have > > they beenasked to do? > > > > > > > > Carlos, > > > > > > > > As the legal sub-team was disbanded, > > your guess is as good as mine..... > > > > > > > > Greg > > > > > > > > On Mon, Jul 6, 2015 at 12:27 AM, > > Carlos Raul > <carlosraulg@gmail.com <mailto:carlosraulg@gmail.com> <mailto:carlosraulg@gmail.com <mailto:carlosraulg@gmail.com>> > > <mailto:carlosraulg@gmail.com <mailto:carlosraulg@gmail.com> > <mailto:carlosraulg@gmail.com <mailto:carlosraulg@gmail.com>>> > > <mailto:carlosraulg@gmail.com <mailto:carlosraulg@gmail.com> > <mailto:carlosraulg@gmail.com <mailto:carlosraulg@gmail.com>>>> wrote: > > > > Thank you Greg! > > > > > > > > It makes a lot of sense and I > guess > > those are all good reasons as > > we hired them in the first place. > > What are the next steps now? > > What happened in the recent call? > > > > > > > > Best regards > > > > > > > > > > Carlos Raúl Gutiérrez > > > > +506 8837 7176 <tel:%2B506%208837%207176> > <tel:%2B506%208837%207176> > > <tel:%2B506%208837%207176> > > <tel:%2B506%208837%207176> > > > > Skype carlos.raulg > > > > _________ > > > > Apartado 1571-1000 > > > > *COSTA RICA* > > > > > > > > > > > > On Mon, Jul 6, 2015 at 12:02 AM, > > Greg Shatan > > <gregshatanipc@gmail.com <mailto:gregshatanipc@gmail.com> > <mailto:gregshatanipc@gmail.com <mailto:gregshatanipc@gmail.com>> > > <mailto:gregshatanipc@gmail.com <mailto:gregshatanipc@gmail.com> > <mailto:gregshatanipc@gmail.com <mailto:gregshatanipc@gmail.com>>> <mailto:gregshatanipc@gmail.com <mailto:gregshatanipc@gmail.com> > <mailto:gregshatanipc@gmail.com <mailto:gregshatanipc@gmail.com>>>> > > wrote: > > > > Chris, > > > > > > > > That was tried to some > extent, > > at least in the CWG. > > > > > > > > There are several substantial > > problems with that approach. > > > > > > > > First, lawyers are not > > fungible. The particular legal > skills, > > background and experience > > required for the issues before both > > WGs are fairly specific, > and in > > some cases, very specific. > > The primary core competency > > needed here is corporate > > governance. While a > number of > > lawyers in the community have a > > reasonable working > knowledge of > > the area, at least in their > > home jurisdictions, I don't > > believe there are any who would > > say that this is their > primary > > focus and expertise -- at least > > none who identified > themselves > > to either WG. The second core > > competency required, > especially > > in the CCWG, is non-profit > > law. Again there are a number > > of lawyers with a decent working > > knowledge of this fairly > broad > > field, but not as a primary > > focus. There may be a couple > > of lawyers in the community who > > would claim this fairly broad > > field as a primary focus and > > expertise -- but none who > > became involved with either WG. > > This then becomes further > > narrowed by jurisdiction. Since > > ICANN is a California > > non-profit corporation, US corporate > > governance and non-profit > > experience is more relevant than > > experience from other > > jurisdictions, and California law > > corporate governance and > > non-profit experience is more > > relevant than that from other > > US jurisdictions. In my > > experience, the more a US > > lawyer focuses on a particular > > substantive area, the greater > > their knowledge of and comfort > > with state law issues in US > > state jurisdictions other than > > their own (e.g., someone who > > spend a majority of their time > > working in corporate > governance > > will have a greater knowledge > > of the law, issues, > approaches > > and trends outside their > > primary state of practice, > > while someone who spends a > > relatively small amount > of time > > in the area will tend to feel > > less comfortable outside > their > > home jurisdiction). (An > > exception is that many US > > lawyers have specific knowledge of > > certain Delaware > corporate law > > issues, because Delaware often > > serves as the state of > > incorporation for entities operating > > elsewhere.) > > > > > > > > Second, lawyers in the > > community will seldom be seen as > > neutral advisors, no > matter how > > hard they try. They will tend > > to be seen as working from > > their point of view or stakeholder > > group or "special > interest" or > > desired outcome, even if they > > are trying to be even-handed. > > Over the course of time, this > > balancing act would tend to > > become more untenable. > > > > > > > > Third, the amount of time it > > would take to provide truly > > definitive legal advice > > (research, careful drafting, > > discussions with relevant > > "clients", etc.) would be > > prohibitive, even compared to > > the substantial amount of time > > it takes to provide > reasonably > > well-informed and competent > > legal-based viewpoints in the > > course of either WG's work. > > > > > > > > Fourth, in order to formally > > counsel the community, the lawyer > > or lawyers in question would > > have to enter into a formal > > attorney-client relationship. > > Under US law, an > > attorney-client relationship > > may inadvertently be created by > > the attorney's actions, so > > attorneys try to be careful about > > not providing formal legal > > advice without a formal engagement > > (sometimes providing an > > explicit "caveat" if they feel they > > might be getting too close to > > providing legal advice). If the > > attorney is employed by a > > corporation, they would likely be > > unable to take on such a > > representation due to the terms of > > their employment, and that is > > before getting to an exploration > > of conflict of interest > > issues. If the attorney is employed > > by a firm, the firm would > have > > to sign off on the > > representation, again dealing > > with potential conflict issues. > > > > > > > > Fifth, even if the above > issues > > were all somehow resolved, it > > would be highly unlikely that > > any such attorney would provide > > substantial amounts of > advice, > > written memos, counseling, etc. > > on a pro bono (unpaid) basis, > > especially given the > > time-consuming nature of the > > work. Pro bono advice and > > representation is generally > > accorded to individuals and > > entities that could not > > otherwise be able to pay for > it. That > > is clearly not the case here, > > at least with ICANN taking > > financial responsibility. It > > would likely be very difficult > > to justify this to, e.g., a > > firm's pro bono committee, as a > > valid pro bono > representation. > > > > > > > > Sixth, if ICANN were not > taking > > the role they are taking, it > > would be extremely > difficult to > > identify the "client" in this > > situation. The > "community" is > > a collection of sectors, > > mostly represented by various > > ICANN-created structures, which > > in turn have members of > widely > > varying types (individuals, > > corporations, sovereigns, > > non-profits, IGOs, partnerships, > > etc.). This would also > make it > > extremely difficult to enter > > into a formal counseling > > relationship with the "community." > > > > > > > > Seventh, this is a sensitive, > > high-profile, transformative set > > of actions we are > involved in, > > which is subject to an > > extraordinary amount of > > scrutiny, not least that of the NTIA > > and the US Congress. That > > eliminates any possibility of > > providing informal, > > off-the-cuff, reasonably > well-informed but > > not quite expert, > "non-advice" > > advice -- which might happen in > > a more obscure exercise. > > There's simply too much at stake. > > > > > > > > Finally, I would say that a > > number of attorneys involved in > > one or both of the WGs are in > > fact providing a significant > > amount of legal knowledge and > > experience to the WGs, helping > > to frame issues, whether in > > terms of general leadership (e.g., > > Thomas, Leon, Becky) or more > > specifically in a > > "lawyer-as-client" > capacity -- > > working with outside counsel, > > tackling the more legalistic > > issues, providing as much legal > > background and knowledge as > > possible without providing the > > type of formal legal advice > > that would tend to create an > > attorney-client relationship, > > etc. So I do think that many > > lawyers in the community are > > giving greatly of themselves in > > this process, even though > they > > cannot and would not be able to > > formally be engaged by the > > community as its "counsel of > record." > > > > > > > > In sum, it might be a nice > > thought in theory, but it is no way > > a practical possibility. > > > > > > > > Greg > > > > > > > > On Sat, Jul 4, 2015 at > 3:08 AM, > > CW Lists > > > <lists@christopherwilkinson.eu <mailto:lists@christopherwilkinson.eu> <mailto:lists@christopherwilkinson.eu <mailto:lists@christopherwilkinson.eu>> > > > <mailto:lists@christopherwilkinson.eu <mailto:lists@christopherwilkinson.eu> > <mailto:lists@christopherwilkinson.eu <mailto:lists@christopherwilkinson.eu>>> > > > <mailto:lists@christopherwilkinson.eu <mailto:lists@christopherwilkinson.eu> > <mailto:lists@christopherwilkinson.eu <mailto:lists@christopherwilkinson.eu>>>> > > wrote: > > > > Good morning: > > > > > > > > I had decided not to > enter > > this debate. But I am bound to > > say that the thought had > > occurred to me at the time, that > > there were more than > enough > > qualified lawyers in this > > community that they could > > perfectly well have counselled … > > themselves. > > > > > > > > CW > > > > > > > > On 04 Jul 2015, at 08:41, > > Greg Shatan > > > <gregshatanipc@gmail.com <mailto:gregshatanipc@gmail.com> <mailto:gregshatanipc@gmail.com <mailto:gregshatanipc@gmail.com>> > > <mailto:gregshatanipc@gmail.com <mailto:gregshatanipc@gmail.com> > <mailto:gregshatanipc@gmail.com <mailto:gregshatanipc@gmail.com>>> <mailto:gregshatanipc@gmail.com <mailto:gregshatanipc@gmail.com> > <mailto:gregshatanipc@gmail.com <mailto:gregshatanipc@gmail.com>>>> > > wrote: > > > > > > > > Wolfgang, > > > > > > > > To your first point, > > the billing rates were clearly > > stated in the law > > firms' engagement letters. > > > > > > > > To your second point, > > I'm sure we could all think of > > other projects and > > goals where the money could have > > been "better spent." > > You've stated yours. But that > > is not the proper > > test. This was and continues to be > > money we need to > spend > > to achieve the goals we have > > set. Under different > > circumstances, perhaps it would > > be a different amount > > (or maybe none at all). But it > > was strongly felt at > > the outset that the group needed > > to have independent > > counsel. Clearly that counsel > > needed to have > > recognized expertise in the > appropriate > > legal areas. As > such, > > I believe we made excellent > > choices and have been > > very well represented. > > > > > > > > As to your "better > > spent" test, I just had to have > > $4000.00 worth of > > emergency dental work done. This > > money definitely > could > > have been "better spent" on a > > nice vacation, > > redecorating our living room or on > > donations to my > favored > > charitable causes. But I had > > no choice, other than > > to choose which dentist and > > endodontist I > went to, > > and I wasn't going to cut > > corners -- the dental > > work was a necessity. > > Similarly, the legal > > work we are getting is a > > necessity and whether > > we would have preferred to spend > > the money > elsewhere is > > not merely irrelevant, it is an > > incorrect and > > inappropriate proposition. Many > of us > > are investing vast > > quantities of time that could be > > "better spent" > > elsewhere as well, but we are > willing > > (grudgingly > sometimes) > > to spend the time it takes to > > get it right, because > > we believe it needs to be done. > > This is the > appropriate > > measure, whether it comes to > > our time or counsels' > > time. If we believe in this > > project, we have to > > invest in it, and do what it takes > > to succeed. > > > > > > > > Of course, this > > investment has to be managed wisely > > and cost-effectively, > > and by and large, I believe the > > CCWG has done that > > reasonably well -- not perfectly, > > but reasonably > well and > > with "course corrections" > > along the way > intended > > to improve that management. > > It's certainly > fair to > > ask, as Robin has done, for a > > better > understanding of > > that management as we go > > along. But asserting > > that the money could have been > > "better spent" > > elsewhere sets up a false test > that we > > should not use to > > evaluate this important aspect of > > our work. > Instead, we > > need to focus on whether the > > money was "well > spent" > > on these critical legal > > services. If you have > > reason to believe it was not, > > that could be > useful to > > know. That would at least be > > the right > discussion to > > have. > > > > > > > > Greg > > > > > > > > On Sat, Jul 4, > 2015 at > > 1:13 AM, "Kleinwächter, > > Wolfgang" > > > <wolfgang.kleinwaechter@medienkomm.uni-halle.de <mailto:wolfgang.kleinwaechter@medienkomm.uni-halle.de> > <mailto:wolfgang.kleinwaechter@medienkomm.uni-halle.de <mailto:wolfgang.kleinwaechter@medienkomm.uni-halle.de>> > > > <mailto:wolfgang.kleinwaechter@medienkomm.uni-halle.de <mailto:wolfgang.kleinwaechter@medienkomm.uni-halle.de> > <mailto:wolfgang.kleinwaechter@medienkomm.uni-halle.de <mailto:wolfgang.kleinwaechter@medienkomm.uni-halle.de>>> > > > <mailto:wolfgang.kleinwaechter@medienkomm.uni-halle.de <mailto:wolfgang.kleinwaechter@medienkomm.uni-halle.de> > <mailto:wolfgang.kleinwaechter@medienkomm.uni-halle.de <mailto:wolfgang.kleinwaechter@medienkomm.uni-halle.de>>>> > > wrote: > > > > HI, > > > > and please if you > > ask outside lawyers, ask for the > > price tag in > > advance. Some of the money spend fo > > lawyers could > have > > been spend better to suppport > > and enable > Internet > > user and non-commercial groups > > in developing > > countries. > > > > > > Wolfgang > > > > > > > > > > > > > -----Ursprüngliche > > Nachricht----- > > Von: > > > accountability-cross-community-bounces@icann.org <mailto:accountability-cross-community-bounces@icann.org> > <mailto:accountability-cross-community-bounces@icann.org <mailto:accountability-cross-community-bounces@icann.org>> > > > <mailto:accountability-cross-community-bounces@icann.org <mailto:accountability-cross-community-bounces@icann.org> > <mailto:accountability-cross-community-bounces@icann.org <mailto:accountability-cross-community-bounces@icann.org>>> > > > <mailto:accountability-cross-community-bounces@icann.org <mailto:accountability-cross-community-bounces@icann.org> > <mailto:accountability-cross-community-bounces@icann.org <mailto:accountability-cross-community-bounces@icann.org>>> > > im Auftrag von > > Robin Gross > > Gesendet: Fr > > 03.07.2015 14:57 > > An: > accountability-cross-community@icann.org <mailto:accountability-cross-community@icann.org> > <mailto:accountability-cross-community@icann.org <mailto:accountability-cross-community@icann.org>> > > > <mailto:accountability-cross-community@icann.org <mailto:accountability-cross-community@icann.org> > <mailto:accountability-cross-community@icann.org <mailto:accountability-cross-community@icann.org>>> > > > <mailto:accountability-cross-community@icann.org <mailto:accountability-cross-community@icann.org> > <mailto:accountability-cross-community@icann.org <mailto:accountability-cross-community@icann.org>>> > > Community > > Betreff: > > [CCWG-ACCT] Who is managing the > lawyers > > and what have > they > > beenasked to do? > > > > > > After the legal > > sub-team was disbanded, I haven't > > been able to > follow > > what communications are > > happening > with CCWG > > and the independent lawyers we > > retained. > > > > I understand the > > lawyers are currently "working on > > the various > models" > > and will present something to > > us regarding that > > work soon. However, *what > > exactly* have the > > lawyers been asked to do and > > *who* asked them? > > If there are written > > instructions, may > > the group please see them? Who > > is now taking on > > the role of managing the outside > > attorneys for > this > > group, including providing > > instructions and > > certifying legal work? > > > > Sorry, but I'm > > really trying to understand what is > > happening, and > > there doesn't seem to be much > > information > in the > > public on this (or if there is, > > I can't find it). > > Thanks for any information > > anyone can > provide. > > > > Best, > > Robin > > > > > _______________________________________________ > > > Accountability-Cross-Community > > mailing list > > > Accountability-Cross-Community@icann.org <mailto:Accountability-Cross-Community@icann.org> > <mailto:Accountability-Cross-Community@icann.org <mailto:Accountability-Cross-Community@icann.org>> > > > <mailto:Accountability-Cross-Community@icann.org <mailto:Accountability-Cross-Community@icann.org> > <mailto:Accountability-Cross-Community@icann.org <mailto:Accountability-Cross-Community@icann.org>>> > > > 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-- Jordan Carter
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Avri - Does it matter to you if the jaws are the jaws of a court or the jaws of the IRP? B 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 7/7/15, 8:49 AM, "Avri Doria" <avri@acm.org> wrote:
Hi,
I do want to point out that I have moved away from the voluntary community model, though it remains dear to my heart to accepting a form of designator model.
I also see that the empowered membership models, is in some ways, similar to the empowered designator model. Unfortunately it also has the ability to slide down the slope to a full membership model. and as I have argued, I think that leaves ICANN not only without proper checks and balnces, but into the jaws of the courts.
avri
On 07-Jul-15 08:29, Jordan Carter wrote:
Hi all,
Firstly I think facts speak for themselves, but it is our understanding of them - including how they change through the accumulation of further facts - that changes over time. And am not a scientist. Nor a lawyer :-)
On Avri's broad point, it does summn up a nub of the debate. I reiterate for the record that my concern with ICANN's post-transition reality is that power is concentrated from the status quo (NTIA - Board, with community advie) into a newly powerful and concentrated single entity - the ICANN Board.
The purpose of a membership or designator model is to distribute power into the global multistakeholder community, as organised through the SO/AC structure, which is how ICANN organises the various stakeholders with interests in the DNS.
There's no claim of perfection in such a model. Quite the opposite. The whole point of a distribution of power is to share accountability and responsibility more broadly.
The "voluntary" model concentrates power in one place to an unhealthy degree. It is difficult for me to understand how anyone could accept a clear worsening of accountability and concentration of power that it represents, compared with the status quo.
Seems to me the sole difference between members and designators comes down to how strong you want the auhority of the community to be. Neither represents "total" power: there is no abrogation in either of the Board's responsibility to govern ICANN consistent with its limited mission and consistent with the global public interest.
All that either offers is an acknowledgement that authority in the DNS community should lie with stakeholders. Organised through the SOs and ACs.
That's the same as where authority in the RIR community lies.
As I understand it, it is also pretty similar towhere authority in the protocols community lies.
It isn't clear to me why the names community would settle for a less reliable and reputable model.
Anyhow, much fodder for thought as we come to Paris. I think we have to acknowledge that the differences here are of degree, except in regards to the voluntary model. That oe stands on its own as a unique reallocation of authority into a single place in a manner that would ceate serious risks for all of us in assuring the stability and security of the DNS.
best Jordan
On 7 July 2015 at 23:52, Avri Doria <avri@acm.org <mailto:avri@acm.org>> wrote:
Hi,
To start, I believe that facts are just things that people believe to be the case. I try not to speak of anthing stronger that a belief. Both my personal history and world histoy, even history of science - that bastion of fact, shows me that yesterda's Fact is often just a matter of prejudice, superstition and point of view.
In terms of the accountability problem with the membership model, it has been discussed before. Fairly extensively. Some of the gaps such as those exposed by the UA have been eliminated, but others have not. Some involve the degree to which the various SOAC are really the solid organizations we portray. As Iwrote in an earlier message where i spoke of the SOAC themselves: > Having been a member or observer of many of these entities I have fond > that they are often disorganized, ruled by a few strong personalities in > a se of apathy, and given to making up rules on the fly when needed. > They do not even necessarily follow the rules they have agreed to in the > charters, hough some do, not all of them. And for the most part, though > they are supposed to transparent, most aren't.
Are these structures really fit of unchecked rule? How can we show that?
For me the primary deficit is the loss of checks and balances.
The current system relies on a set of checks and balances between the Board andthe rest of the community. The current problem is that the power of the rest of the community seem too weak to many, allowing the Board to seemingly work without any checks on its activities.
By strengthening the community in the designator model, we strengthen the set of checks and balance between the Board and the rest of the community. By doing so, we increase accountability.
There is a reciprocity in this notion of accountability, one that does not require external oversight. We vote them in, can appeal the board in a serious manner and will even be able to vote them out by some yet to be determined procedure. And the Board, can review the degree to which the stakeholder groups are fulfilling their mandate to represent the larger community within the ICANN mission. In a sense there is mutual reciprocal oversight. The Board and the rest of the community check each other and establish a functional balance. Most of the this CCWG's activities are working on the details of these check and balances.
That is other than the grand reorganization of ICANN into a membership organization. Something that leaves the current check and balances behind and attempts to create a major new structure.
In the designator model the Board can make decisions and we can appeal them. And we make recommendations and give advise the Board needs to give it serious consideration on penalty of appeal. In extreme case they can be removed from their duties and we can be subjected to disussions of reorganization.
Going to the membership model eliminaes this balance by giving the putative community representatives supreme power. How can that power be appealed? Can membership decisions be appealed, by whom and to whom? Who determines whether the ACSO are adequately representing the global community and living up to their obligations under the bylaws? Membership turns the Board into an administrative unit without sufficient power to act as a check or balance to the ACSOs.
Eliminating any checks and balances on the ACSO from the accountability equation seems to be a critical failure to me in the creation of a new accountability regime. Perhaps if we were going with the individual membership option a degree of accountability to global members could be argued, not sure. But I believe that is not what we are working on as that would involve even greater difficulty to get right. We are not even working on a model where organizations that exist on their own come together to form a group. Our ACSO are artificial organizations created by and within ICANN. Our multistakeholder model depends on the interaction and interplay of these organization with the Board and on the checks and balances between them.
Perhaps you have 'fact based' responses to all the possible accountability questions that NTIA might ask us about this new power structure you favor. I do not believe tht you can show how the ACSO will be responsible to the global Internet community. I a rogue set of ACSO can be stopped from doing things that harm the organizations or the Internet without allowing the Board some degree of decision making based on the confluence of recommendations and advice received from the various ACSO and the greater community.
As was stated in the call by NTIA, it was up to us to show how anything new we created could be held accountable. As far as I can tell in membership there is no way to hold the members accountable. In the designator model we show how we are adding accountability measures. In the membership model we require the ACSO to verify their own representativity, but I have seen no expression of how they can do that or show that it is the case. When I speak of having a "much higher threshold" in proving ACSO accountabilty to the global public interest, this is what I mean. How are you going to prove, as you say - with the facts that you believe in, that the membership model is more accountable given its unassailable postion in a membership organization.
I have seen no evidence of membership creating greater accountability to the global public interest. I cannot state that I believe it is impossible for it to do so, just that I have seen no evidence of it.
avri
On 06-Jul-15 21:01, Edward Morris wrote: > Hello Avri, > > > I believe membership raises the issues of accountability to the full > diversity of stakeholders to a much higher threshold, including the > issue of the degree to which ICANN is accountable to stakeholders not > included among our SG/C/RALO/ALS / as well as among parrticpating CCs
and govts.
> > > > Please, if possible, raise your concerns stating fact rather than > belief. Maybe there is something I have missed. There is absolutely no > difference in the openness to non ICANN stakeholders between the > empowered membership and empowered designator models.At least I don't > see any. Both are based upon the current SOAC's. If there is a > ifference in this area I need to and want to be educated. Please > respond with specific and detailed instances or examples of why what > you claim is true is. Vague general > Again, I am open to be educated and persuaded but with substantive > fact rather than vague as yet unsubstantiated beliefs. > > No model is as open to non SOAC's as is Malcolm's proposal for > individual membership. That, again, is a membership modip model and if not why not? Would you > prefer other models to be looked at that are not based upon the > SOAC's? I think that would be a very reasonable position and one I > certainly am open to supporting if a workable model would be proposed. > As yet I have not seen o > > > > I think enough of the comments bring out questions of > accountability in > p option less than > optimal. > > > > What comments are you referring to? Certainly not the public comments > which were basically supportive of membership. Are these comments you > refer to based upon vague generalities or specific proboblems what specifically are they? Should we not > determine whether there are solution to those problems rather ht? If not, what are your views as to > the ultimate apparent unenforceability of the designator model in > certain areas? Do you disagree with Paul Rosenzweig when he states > that "a direct community veto of budget and strategic plan remains > essential to accountability"? If not, what do you propose to do in > tese areas without membership. Should we simply forget them? > > I do think there may be another option or two out there and hopefully > working with our counsel we'll find them. > > In the interim, I really am looking to be educated. No one has taught > me more about ICANN since I became involved in it than you Avri. I'm > just not easily persuadable by vague opinions, I'm a fact based sort > of guy. As this process has moved forward I've seen your views and > positions change. To me, that is an admirable sign of someone truly > looking for an optimal answer rather than one who is clinging to a > defined position. I'm just having some trouble understanding, > factually, the specific objections you are now raising about > membership. I hope you can help me understand so I can better test and > evaluate my own views.. > > Thanks, > > Ed > > > > On 06-Jul-15 19:05, Edward Morris wrote: > > +1. Well said. > > > > > > On Mon, Jul 6, 2015 at 9:04 PM, Jonathan Zuck > <JZuck@actonline.org <mailto:JZuck@actonline.org> <mailto:JZuck@actonline.org <mailto:JZuck@actonline.org>> > > <mailto:JZuck@actonline.org <mailto:JZuck@actonline.org> <mailto:JZuck@actonline.org <mailto:JZuck@actonline.org>>>> wrote: > > > > Hmm. I think it¹s important to bear in mind that there was > > overwhelming consensus among the public comments to support the > > membership model. The detractors from the model, while important > > and perhaps critical, are not in the majority. I¹m not sure this > > process speaks to how we better use counsel as much as how we > > achieve consensus on principles. > > > > > > > > > > > > > > *From:*accountability-cross-community-bounces@icann.org <mailto:accountability-cross-community-bounces@icann.org> > <mailto:accountability-cross-community-bounces@icann.org <mailto:accountability-cross-community-bounces@icann.org>> > > <mailto:accountability-cross-community-bounces@icann.org <mailto:accountability-cross-community-bounces@icann.org> > <mailto:accountability-cross-community-bounces@icann.org <mailto:accountability-cross-community-bounces@icann.org>>> > > [mailto:accountability-cross-community-bounces@icann.org <mailto:accountability-cross-community-bounces@icann.org> > <mailto:accountability-cross-community-bounces@icann.org <mailto:accountability-cross-community-bounces@icann.org>> > > <mailto:accountability-cross-community-bounces@icann.org <mailto:accountability-cross-community-bounces@icann.org> > <mailto:accountability-cross-community-bounces@icann.org <mailto:accountability-cross-community-bounces@icann.org>>>] *On > > Behalf Of *Seun Ojedeji > > *Sent:* Monday, July 6, 2015 3:50 PM > > *To:* Becky Burr > > *Cc:* accountability-cross-community@icann.org <mailto:accountability-cross-community@icann.org> > <mailto:accountability-cross-community@icann.org <mailto:accountability-cross-community@icann.org>> > > <mailto:accountability-cross-community@icann.org <mailto:accountability-cross-community@icann.org> > <mailto:accountability-cross-community@icann.org <mailto:accountability-cross-community@icann.org>>> > > *Subject:* Re: [CCWG-ACCT] Who is managing the lawyers and what > > have they beenasked to do? > > > > > > > > Hi Becky, > > > > Thanks for asking, item 3 is actually in connection to the fact > > that such veto may not be possible without item 1(as I > understood > > it) and that is why I said an indirect veto can happen not > that I > > was entirely suggesting that those powers be off the table. > > > > It seem however that folks are only looking at the powers > and not > > at what it will take to have them. > > > > By the way, I also did put in a reservation that we may not > > necessarily agree with those views but my concern is mainly that > > the ccwg does not spend so much time developing proposals > that we > > know has certain implementation requirements that are not > > compatible with the ICANN community structure. I think we should > > learn from the the past (based on comments from the last PC) and > > utilize legal council and volunteer hours more effectively. > > > > FWIW speaking as participant. > > > > Regards > > > > On 6 Jul 2015 8:08 pm, "Burr, Becky" <Becky.Burr@neustar.biz <mailto: > <mailto:Becky.Burr@neustar.biz <mailto:Becky.Burr@neustar.biz>> > > <mailto:Becky.Burr@neustar.biz <mailto:Becky.Burr@neustar.biz> > <mailto:Becky.Burr@neustar.biz <mailto:Becky.Burr@neustar.biz>>>> wrote: > > > > Seun, > > > > > > > > I am not sure why we would take direct budget/strat plan > veto > > off the table. Could you explain? Thanks. > > > > > > > > Becky > > > > J. Beckwith Burr > > > > *Neustar, Inc. /* Deputy General Counsel and Chief > Privacy Officer > > > > 1775 Pennsylvania Avenue NW, Washington, DC 20006 > > > > Office: + 1.202.533.2932 <tel:%2B%201.202.533.2932> <tel:%2B%201.202.533.2932> > <tel:%2B%201.202.533.2932> Mobile: > > +1.202.352.6367 <tel:%2B1.202.352.6367> > > <tel:%2B1.202.352.6367> / becky.burr@neustar.biz <mailto:becky.burr@neustar.biz> > <mailto:becky.burr@neustar.biz <mailto:becky.burr@neustar.biz>> > > <mailto:becky.burr@neustar.biz <mailto:becky.burr@neustar.biz> > <mailto:becky.burr@neustar.biz <mailto:becky.burr@neustar.biz>>> / www.neustar.biz <http://www.neustar.biz> > <http://www.neustar.biz> > > <http://www.neustar.bi > > > > > > *From: *Seun Ojedeji <seun.ojedeji@gmail.com <mailto:seun.ojedeji@gmail.com> > <mailto:seun.ojedeji@gmail.com <mailto:seun.ojedeji@gmail.com>> > > <mailto:seun.ojedeji@gmail.com>> <mailto:seun.ojedeji@gmail.com> > <mailto:seun.ojedeji@gmail.com <mailto:seun.ojedeji@gmail.com>>>> > > *Date: *Monday, July 6, 2015 at 11:09 AM > > *To: *Robin Gross <robin@ipjustice.org <mailto:robin@ipjustice.org> > <mailto:robin@ipjustice.org <mailto:robin@ipjustice.org>> > > <mailto:robin@ipjustice.org <mailto:robin@ipjustice.org> <mailto:robin@ipjustice.org <mailto:robin@ipjustice.org>>>> > > *Cc: *Accountability Community > > <accountability-cross-community@icann.org <mailto:accountability-cross-community@icann.org> > <mailto:accountability-cross-community@icann.org <mailto:accountability-cross-community@icann.org>> > > <mailto:accountability-cross-community@icann.org <mailto:accountability-cross-community@icann.org> > <mailto:accountability-cross-community@icann.org <mailto:accountability-cross-community@icann.org>>>> > > *Subject: *Re: [CCWG-ACCT] Who is managing the lawyers and > > what have they beenasked to do? > > > > > > > > Hi, > > > > I have no problem with having a new proposal presented. > > However it is important that there some adherence to basic > > principles on proposals that the ccwg would not want to > > explore. Three areas comes to mind: > > > > - Its my understanding that anything that will turn some/all > > of the SO/AC to members and thereby exposing them to legal > > challenge is not acceptable > > > > - Its my understanding that anything that alloof > > individual board member without the approval of the > entire(or > > larger part) of the community is not acceptable > > > > - Its my understanding that a solution that allows direct > > community veto on certain elements like budget, > strategic plan > > et all is not acceptable but an indirect enforcement > could be > > considered (i.e using a power to get another power executed > > indirectly) > > > > > > > > Some/none of the above may be acceptable by us, but my point > > is that there should be some focus going forward, especially > > if the target of ICANN54 is to be meet > > > > Regards > > > > > > > > > > > > On Mon, Jul 6, 2015 at 3:37 PM, Robin Gross > > <robin@ipjustice.org <mailto:robin@ipjustice.org> <mailto:robin@ipjustice.org <mailto:robin@ipjustice.org>> > <mailto:robin@ipjustice.org <mailto:robin@ipjustice.org> <mailto:robin@ipjustice.org <mailto:robin@ipjustice.org>>>> wrote: > > > > I would also like to hear what they propose at this > > stage. I really don't see how it could hurt to have > > another proposal to consider. Larry Strickling did > say he > > wanted us to be sure we examined all the options > carefully. > > > > > > > > Thanks, > > > > Robin > > > > > > > > On Jul 6, 2015, t 7:32 AM, Greg Shatan wrote: > > > > > > > > I agree. We should have the benefit of their > thoughts. > > > > > > > > >> > > > > > > > > On Mon, Jul 6, 2015 at 9:38 AM, Jordan Carter > > <jordant.nz <mailto:jordan@internetnz.net.nz> > <mailto:jordan@internetnz.net.nz <mailto:jordan@internetnz.net.nz>> > > <mailto:jordan@internetnz.net.nz <mailto:jordan@internetnz.net.nz> > <mailto:jordan@internetnz.net.nz <mailto:jordan@internetnz.net.nz>>>> wrote: > > > > Well, I would really really like to see what the > > creative thinking they have done has > suggested. I > > trust our ability as a group to make decisions, > > and do not believe we should cut off input from > > any direction... > > > > > > > > Jordan > > > > > > > > On 7 July 2015 at 01:13, James Gannon > > <james@cyberinvasion.net <mailto:james@cyberinvasion.net> > <mailto:james@cyberinvasion.net <mailto:james@cyberinvasion.net>> > > <mailto:james@cyberinvasion.net <mailtberinvasion.net> > <mailto:james@cyberinvasion.net <mailto:james@cyberinvasion.net>>>> wrote: > > > > Hey Avri, > > > > > > > > Yes the 3rd model was brought up, and the > > lawyers feel that it might be a cleaner way for us to get the powers that we need. > > > > But without a call from the CCWG to > present it > > they feel that its not their position to > > propose a model on their own initiative. > > > > > > > > Personally i would like to see what they > have > > come up with but the CCWG would need to > ask as > > an overall group for the chairs to > direct them > > to give some more information on the > model if > > we wanted it. > > > > I think if after we hear from them on > Tuesdays > > call we still feel we might have some > > shortcomings that it might be the time > to ask > > them about the 3rd option. > > > > > > > > Also +1 I think they are really enjoying the > > and are finding themselves getting more > > and more involved as we go on, which is > great > > for the CCWG as the more background and > > details they know the better that are > able to > > give us solid well reasoned advice in my > opinion. > > > > > > > > -James > > > > > > > > > > > > On 6 Jul 2015, at 13:19, Avri Doria > > <avri@acm.org <mailto:avri@acm.org> <mailto:avri@acm.org <mailto:avri@acm.org>> > <mailto:avri@acm.org <mailto:avri@acm.org> <mailto:avri@acm.org <mailto:avri@acm.org>>>> wrote: > > > > > > > > Hi, > > > > I have not had a chance to get back > to the > > recording of the call. Not > > sure I wilt time was the time > I had > > for that call and that is why > > i was listening then. > > > > In any case, th lawyers were talking > > about a new model they had come up > > with, but not knowing what to do > about it > > since they had not been asked > > for a new model.
>
> > I was told to leave before I got to hear > > the end of that story. Or about > > the model itself. Anyone who has had a > > chance to listen, whatever happened? > > > > avri > > > > ps. sometimes i think the lawyers are > > getting interested in what we are > > doing, almost like stakeholders. not > that > > i expect them to give up their > > hourly rates because they are > stakeholders. > > > > On 06-Jul-15 05:07, James Gannon wrote: > > > > > > I listened to the last co-chairs > > lawyers¹ call at; > > >
https://urldefense.proofpoint.com/v2/url?u=https-3A__community.icann.org_ pages_viewpage.action-3FpageId-3D53782602&d=AwIF-g&c=MOptNlVtIETeDALC_lUL rw&r=62cJFOifzm6X_GRlaq8Mo8TjDmrxdYahOP8WDDkMr4k&m=WFn00v80Cv5VwEgmjVcgIG rVjb75abO-S6JrONX7jKM&s=zSmXcLCXRxT8cvoxbhuDA2mgEJqygwNhe2KdqzxJaeo&e= > > >
<https://urldefense.proofpoint.com/v2/url?u=https-3A__community.icann.org _pages_viewpage.action-3FpageId-3D53782602&d=AwMFaQ&c=MOptNlVtIETeDALC_lU Lrw&r=62cJFOifzm6X_GRlaq8Mo8TjDmrxdYahOP8WDDkMr4k&m=rX8zWSdUbF0XJ6RQyX5HA BE7NaQIgAXHj6WfvEXkLh8&s=5REzt6Gk0Mt5evnhe_F8O87Kpc4hX8wql7vP--WYsnQ&e=> > > (I¹m a glutton for punishment) > > > > > > > > It was a short call and I¹ll make a > > particular note that Leon and > > Mathieu made a point of not > making any > > decisions on behalf of the > > whole group and made it clear > anything > > requiring a decision must be > > made by the overall CCWG, so I was > > happy with that side of things > > myself, ost of my own fears > about not > > having a sub-group are somewhat > > assuaged. > > > > So my paraphrasing and overview is: > > > > > > > > · Lawyers working hard > on the > > models for us collaboratively > > between the two firms since BA > > > > · Lawyers are prepping a > > presentation to give to us ASAP > > before Paris if possible, that > > presentation will take the > majority of > > a call, it can¹t be done > quickly, they > > need about 45mins uninterrupted > > to go through the presentation and > > then would likely need Q&A time > > after they present. > > > > · Some small > > wording/clarifications to come > back to > > the CCWG > > to make sure everyone¹s on the > same page > > > > · Everyone feels Paris > will be > > an important time for the > > models, lawyers will be ready for a > > grilling on the details of the > > models from us to flesh out any > of our > > concerns/questions > > > > > > > > Note that the above is all my very > > condensed overview of the > > conversations. > > > > It seemed like a productive call > to me. > > > > > > > > -James > > > > > > > > > > > > > *From:*accountability-cross-community-bounces@icann.org <mailto:accountability-cross-community-bounces@icann.org> > <mailto:accountability-cross-community-bounces@icann.org <mailto:accountability-cross-community-bounces@icann.org>> > > > <mailto:accountability-cross-community-bounces@icann.org <mailto:accountability-cross-community-bounces@icann.org> > <mailto:accountability-cross-community-bounces@icann.org <mailto:accountability-cross-community-bounces@icann.org>>> > > > [mailto:accountability-cross-community-bounces@icann.org <mailto:accountability-cross-community-bounces@icann.org> > <mailto:accountability-cross-community-bounces@icann.org <mailto:accountability-cross-community-bounces@icann.org>> > > > <mailto:accountability-cross-community-bounces@icann.org <mailto:accountability-cross-community-bounces@icann.org> > <mailto:accountability-cross-community-bounces@icann.org <mailto:accountability-cross-community-bounces@icann.org>>>] > > *On Behalf > > Of *Greg Shatan > > *Sent:* Monday, July 06, 2015 > 5:33 AM > > *To:* Carlos Raul > > *Cc:* > > > accountability-cross-community@icann.org <mailto:accountability-cross-community@icann.org> > <mailto:accountability-cross-community@icann.org <mailto:accountability-cross-community@icann.org>> > > > <mailto:accountability-cross-community@icann.org <mailto:accountability-cross-community@icann.org> > <mailto:accountability-cross-community@icann.org <mailto:accountability-cross-community@icann.org>>> > > *Subject:* Re: [CCWG-ACCT] Who is > > managing the lawyers and what have > > they beenasked to do? > > > > > > > > Carlos, > > > > > > > > As the legal sub-team was disbanded, > > your guess is as good as mine..... > > > > > > > > Greg > > > > > > > > On Mon, Jul 6, 2015 at 12:27 AM, > > Carlos Raul > <carlosraulg@gmail.com <mailto:carlosraulg@gmail.com> <mailto:carlosraulg@gmail.com <mailto:carlosraulg@gmail.com>> > > <mailto:carlosraulg@gmail.com <mailto:carlosraulg@gmail.com> > <mailto:carlosraulg@gmail.com <mailto:carlosraulg@gmail.com>>> > > <mailto:carlosraulg@gmail.com <mailto:carlosraulg@gmail.com> > <mailto:carlosraulg@gmail.com <mailto:carlosraulg@gmail.com>>>> wrote: > > > > Thank you Greg! > > > > > > > > It makes a lot of sense and I > guess > > those are all good reasons as > > we hired them in the first place. > > What are the next steps now? > > What happened in the recent call? > > > > > > > > Best regards > > > > > > > > > > Carlos Raúl Gutiérrez > > > > +506 8837 7176 <tel:%2B506%208837%207176> > <tel:%2B506%208837%207176> > > <tel:%2B506%208837%207176> > > <tel:%2B506%208837%207176> > > > > Skype carlos.raulg > > > > _________ > > > > Apartado 1571-1000 > > > > *COSTA RICA* > > > > > > > > > > > > On Mon, Jul 6, 2015 at 12:02 AM, > > Greg Shatan > > <gregshatanipc@gmail.com <mailto:gregshatanipc@gmail.com> > <mailto:gregshatanipc@gmail.com <mailto:gregshatanipc@gmail.com>> > > <mailto:gregshatanipc@gmail.com <mailto:gregshatanipc@gmail.com> > <mailto:gregshatanipc@gmail.com <mailto:gregshatanipc@gmail.com>>> <mailto:gregshatanipc@gmail.com <mailto:gregshatanipc@gmail.com> > <mailto:gregshatanipc@gmail.com <mailto:gregshatanipc@gmail.com>>>> > > wrote: > > > > Chris, > > > > > > > > That was tried to some > extent, > > at least in the CWG. > > > > > > > > There are several substantial > > problems with that approach. > > > > > > > > First, lawyers are not > > fungible. The particular legal > skills, > > background and experience > > required for the issues before both > > WGs are fairly specific, > and in > > some cases, very specific. > > The primary core competency > > needed here is corporate > > governance. While a > number of > > lawyers in the community have a > > reasonable working > knowledge of > > the area, at least in their > > home jurisdictions, I don't > > believe there are any who would > > say that this is their > primary > > focus and expertise -- at least > > none who identified > themselves > > to either WG. The second core > > competency required, > especially > > in the CCWG, is non-profit > > law. Again there are a number > > of lawyers with a decent working > > knowledge of this fairly > broad > > field, but not as a primary > > focus. There may be a couple > > of lawyers in the community who > > would claim this fairly broad > > field as a primary focus and > > expertise -- but none who > > became involved with either WG. > > This then becomes further > > narrowed by jurisdiction. Since > > ICANN is a California > > non-profit corporation, US corporate > > governance and non-profit > > experience is more relevant than > > experience from other > > jurisdictions, and California law > > corporate governance and > > non-profit experience is more > > relevant than that from other > > US jurisdictions. In my > > experience, the more a US > > lawyer focuses on a particular > > substantive area, the greater > > their knowledge of and comfort > > with state law issues in US > > state jurisdictions other than > > their own (e.g., someone who > > spend a majority of their time > > working in corporate > governance > > will have a greater knowledge > > of the law, issues, > approaches > > and trends outside their > > primary state of practice, > > while someone who spends a > > relatively small amount > of time > > in the area will tend to feel > > less comfortable outside > their > > home jurisdiction). (An > > exception is that many US > > lawyers have specific knowledge of > > certain Delaware > corporate law > > issues, because Delaware often > > serves as the state of > > incorporation for entities operating > > elsewhere.) > > > > > > > > Second, lawyers in the > > community will seldom be seen as > > neutral advisors, no > matter how > > hard they try. They will tend > > to be seen as working from > > their point of view or stakeholder > > group or "special > interest" or > > desired outcome, even if they > > are trying to be even-handed. > > Over the course of time, this > > balancing act would tend to > > become more untenable. > > > > > > > > Third, the amount of time it > > would take to provide truly > > definitive legal advice > > (research, careful drafting, > > discussions with relevant > > "clients", etc.) would be > > prohibitive, even compared to > > the substantial amount of time > > it takes to provide > reasonably > > well-informed and competent > > legal-based viewpoints in the > > course of either WG's work. > > > > > > > > Fourth, in order to formally > > counsel the community, the lawyer > > or lawyers in question would > > have to enter into a formal > > attorney-client relationship. > > Under US law, an > > attorney-client relationship > > may inadvertently be created by > > the attorney's actions, so > > attorneys try to be careful about > > not providing formal legal > > advice without a formal engagement > > (sometimes providing an > > explicit "caveat" if they feel they > > might be getting too close to > > providing legal advice). If the > > attorney is employed by a > > corporation, they would likely be > > unable to take on such a > > representation due to the terms of > > their employment, and that is > > before getting to an exploration > > of conflict of interest > > issues. If the attorney is employed > > by a firm, the firm would > have > > to sign off on the > > representation, again dealing > > with potential conflict issues. > > > > > > > > Fifth, even if the above > issues > > were all somehow resolved, it > > would be highly unlikely that > > any such attorney would provide > > substantial amounts of > advice, > > written memos, counseling, etc. > > on a pro bono (unpaid) basis, > > especially given the > > time-consuming nature of the > > work. Pro bono advice and > > representation is generally > > accorded to individuals and > > entities that could not > > otherwise be able to pay for > it. That > > is clearly not the case here, > > at least with ICANN taking > > financial responsibility. It > > would likely be very difficult > > to justify this to, e.g., a > > firm's pro bono committee, as a > > valid pro bono > representation. > > > > > > > > Sixth, if ICANN were not > taking > > the role they are taking, it > > would be extremely > difficult to > > identify the "client" in this > > situation. The > "community" is > > a collection of sectors, > > mostly represented by various > > ICANN-created structures, which > > in turn have members of > widely > > varying types (individuals, > > corporations, sovereigns, > > non-profits, IGOs, partnerships, > > etc.). This would also > make it > > extremely difficult to enter > > into a formal counseling > > relationship with the "community." > > > > > > > > Seventh, this is a sensitive, > > high-profile, transformative set > > of actions we are > involved in, > > which is subject to an > > extraordinary amount of > > scrutiny, not least that of the NTIA > > and the US Congress. That > > eliminates any possibility of > > providing informal, > > off-the-cuff, reasonably > well-informed but > > not quite expert, > "non-advice" > > advice -- which might happen in > > a more obscure exercise. > > There's simply too much at stake. > > > > > > > > Finally, I would say that a > > number of attorneys involved in > > one or both of the WGs are in > > fact providing a significant > > amount of legal knowledge and > > experience to the WGs, helping > > to frame issues, whether in > > terms of general leadership (e.g., > > Thomas, Leon, Becky) or more > > specifically in a > > "lawyer-as-client" > capacity -- > > working with outside counsel, > > tackling the more legalistic > > issues, providing as much legal > > background and knowledge as > > possible without providing the > > type of formal legal advice > > that would tend to create an > > attorney-client relationship, > > etc. So I do think that many > > lawyers in the community are > > giving greatly of themselves in > > this process, even though > they > > cannot and would not be able to > > formally be engaged by the > > community as its "counsel of > record." > > > > > > > > In sum, it might be a nice > > thought in theory, but it is no way > > a practical possibility. > > > > > > > > Greg > > > > > > > > On Sat, Jul 4, 2015 at > 3:08 AM, > > CW Lists > > > <lists@christopherwilkinson.eu <mailto:lists@christopherwilkinson.eu> <mailto:lists@christopherwilkinson.eu <mailto:lists@christopherwilkinson.eu>> > > > <mailto:lists@christopherwilkinson.eu <mailto:lists@christopherwilkinson.eu> > <mailto:lists@christopherwilkinson.eu <mailto:lists@christopherwilkinson.eu>>> > > > <mailto:lists@christopherwilkinson.eu <mailto:lists@christopherwilkinson.eu> > <mailto:lists@christopherwilkinson.eu <mailto:lists@christopherwilkinson.eu>>>> > > wrote: > > > > Good morning: > > > > > > > > I had decided not to > enter > > this debate. But I am bound to > > say that the thought had > > occurred to me at the time, that > > there were more than > enough > > qualified lawyers in this > > community that they could > > perfectly well have counselled S > > themselves. > > > > > > > > CW > > > > > > > > On 04 Jul 2015, at 08:41, > > Greg Shatan > > > <gregshatanipc@gmail.com <mailto:gregshatanipc@gmail.com> <mailto:gregshatanipc@gmail.com <mailto:gregshatanipc@gmail.com>> > > <mailto:gregshatanipc@gmail.com <mailto:gregshatanipc@gmail.com> > <mailto:gregshatanipc@gmail.com <mailto:gregshatanipc@gmail.com>>> <mailto:gregshatanipc@gmail.com <mailto:gregshatanipc@gmail.com> > <mailto:gregshatanipc@gmail.com <mailto:gregshatanipc@gmail.com>>>> > > wrote: > > > > > > > > Wolfgang, > > > > > > > > To your first point, > > the billing rates were clearly > > stated in the law > > firms' engagement letters. > > > > > > > > To your second point, > > I'm sure we could all think of > > other projects and > > goals where the money could have > > been "better spent." > > You've stated yours. But that > > is not the proper > > test. This was and continues to be > > money we need to > spend > > to achieve the goals we have > > set. Under different > > circumstances, perhaps it would > > be a different amount > > (or maybe none at all). But it > > was strongly felt at > > the outset that the group needed > > to have independent > > counsel. Clearly that counsel > > needed to have > > recognized expertise in the > appropriate > > legal areas. As > such, > > I believe we made excellent > > choices and have been > > very well represented. > > > > > > > > As to your "better > > spent" test, I just had to have > > $4000.00 worth of > > emergency dental work done. This > > money definitely > could > > have been "better spent" on a > > nice vacation, > > redecorating our living room or on > > donations to my > favored > > charitable causes. But I had > > no choice, other than > > to choose which dentist and > > endodontist I > went to, > > and I wasn't going to cut > > corners -- the dental > > work was a necessity. > > Similarly, the legal > > work we are getting is a > > necessity and whether > > we would have preferred to spend > > the money > elsewhere is > > not merely irrelevant, it is an > > incorrect and > > inappropriate proposition. Many > of us > > are investing vast > > quantities of time that could be > > "better spent" > > elsewhere as well, but we are > willing > > (grudgingly > sometimes) > > to spend the time it takes to > > get it right, because > > we believe it needs to be done. > > This is the > appropriate > > measure, whether it comes to > > our time or counsels' > > time. If we believe in this > > project, we have to > > invest in it, and do what it takes > > to succeed. > > > > > > > > Of course, this > > investment has to be managed wisely > > and cost-effectively, > > and by and large, I believe the > > CCWG has done that > > reasonably well -- not perfectly, > > but reasonably > well and > > with "course corrections" > > along the way > intended > > to improve that management. > > It's certainly > fair to > > ask, as Robin has done, for a > > better > understanding of > > that management as we go > > along. But asserting > > that the money could have been > > "better spent" > > elsewhere sets up a false test > that we > > should not use to > > evaluate this important aspect of > > our work. > Instead, we > > need to focus on whether the > > money was "well > spent" > > on these critical legal > > services. If you have > > reason to believe it was not, > > that could be > useful to > > know. That would at least be > > the right > discussion to > > have. > > > > > > > > Greg > > > > > > > > On Sat, Jul 4, > 2015 at > > 1:13 AM, "Kleinwächter, > > Wolfgang" > > > <wolfgang.kleinwaechter@medienkomm.uni-halle.de <mailto:wolfgang.kleinwaechter@medienkomm.uni-halle.de> > <mailto:wolfgang.kleinwaechter@medienkomm.uni-halle.de <mailto:wolfgang.kleinwaechter@medienkomm.uni-halle.de>> > > > <mailto:wolfgang.kleinwaechter@medienkomm.uni-halle.de <mailto:wolfgang.kleinwaechter@medienkomm.uni-halle.de> > <mailto:wolfgang.kleinwaechter@medienkomm.uni-halle.de <mailto:wolfgang.kleinwaechter@medienkomm.uni-halle.de>>> > > > <mailto:wolfgang.kleinwaechter@medienkomm.uni-halle.de <mailto:wolfgang.kleinwaechter@medienkomm.uni-halle.de> > <mailto:wolfgang.kleinwaechter@medienkomm.uni-halle.de <mailto:wolfgang.kleinwaechter@medienkomm.uni-halle.de>>>> > > wrote: > > > > HI, > > > > and please if you > > ask outside lawyers, ask for the > > price tag in > > advance. Some of the money spend fo > > lawyers could > have > > been spend better to suppport > > and enable > Internet > > user and non-commercial groups > > in developing > > countries. > > > > > > Wolfgang > > > > > > > > > > > > > -----Ursprüngliche > > Nachricht----- > > Von: > > > accountability-cross-community-bounces@icann.org <mailto:accountability-cross-community-bounces@icann.org> > <mailto:accountability-cross-community-bounces@icann.org <mailto:accountability-cross-community-bounces@icann.org>> > > > <mailto:accountability-cross-community-bounces@icann.org <mailto:accountability-cross-community-bounces@icann.org> > <mailto:accountability-cross-community-bounces@icann.org <mailto:accountability-cross-community-bounces@icann.org>>> > > > <mailto:accountability-cross-community-bounces@icann.org <mailto:accountability-cross-community-bounces@icann.org> > <mailto:accountability-cross-community-bounces@icann.org <mailto:accountability-cross-community-bounces@icann.org>>> > > im Auftrag von > > Robin Gross > > Gesendet: Fr > > 03.07.2015 14:57 > > An: > accountability-cross-community@icann.org <mailto:accountability-cross-community@icann.org> > <mailto:accountability-cross-community@icann.org <mailto:accountability-cross-community@icann.org>> > > > <mailto:accountability-cross-community@icann.org <mailto:accountability-cross-community@icann.org> > <mailto:accountability-cross-community@icann.org <mailto:accountability-cross-community@icann.org>>> > > > <mailto:accountability-cross-community@icann.org <mailto:accountability-cross-community@icann.org> > <mailto:accountability-cross-community@icann.org <mailto:accountability-cross-community@icann.org>>> > > Community > > Betreff: > > [CCWG-ACCT] Who is managing the > lawyers > > and what have > they > > beenasked to do? > > > > > > After the legal > > sub-team was disbanded, I haven't > > been able to > follow > > what communications are > > happening > with CCWG > > and the independent lawyers we > > retained. > > > > I understand the > > lawyers are currently "working on > > the various > models" > > and will present something to > > us regarding that > > work soon. However, *what > > exactly* have the > > lawyers been asked to do and > > *who* asked them? > > If there are written > > instructions, may > > the group please see them? Who > > is now taking on > > the role of managing the outside > > attorneys for > this > > group, including providing > > instructions and > > certifying legal work? > > > > Sorry, but I'm > > really trying to understand what is > > happening, and > > there doesn't seem to be much > > information > in the > > public on this (or if there is, > > I can't find it). > > Thanks for any information > > anyone can > provide. > > > > Best, > > Robin > > > > > _______________________________________________ > > > Accountability-Cross-Community > > mailing list > > > Accountability-Cross-Community@icann.org <mailto:Accountability-Cross-Community@icann.org> > <mailto:Accountability-Cross-Community@icann.org <mailto:Accountability-Cross-Community@icann.org>> > > > <mailto:Accountability-Cross-Community@icann.org <mailto:Accountability-Cross-Community@icann.org> > <mailto:Accountability-Cross-Community@icann.org <mailto:Accountability-Cross-Community@icann.org>>> > > > <mailto:Accountability-Cross-Community@icann.org <mailto:Accountability-Cross-Community@icann.org> > <mailto:Accountability-Cross-Community@icann.org <mailto:Accountability-Cross-Community@icann.org>>> > > >
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<https://urldefense.proofpoint.com/v2/url?u=https-3A__mm.icann.org_mailma n_listinfo_accountability-2Dcross-2Dcommunity&d=AwMFaQ&c=MOptNlVtIETeDALC _lULrw&r=62cJFOifzm6X_GRlaq8Mo8TjDmrxdYahOP8WDDkMr4k&m=rX8zWSdUbF0XJ6RQyX 5HABE7NaQIgAXHj6WfvEXkLh8&s=Yqq66BmsF0-t9R7GjryZsv1k1c4OBxUhFvNoM2kB7g8&e => > > > > > > > > > > > _______________________________________________ > > Accountability-Cross-Community mailing list > > Accountability-Cross-Community@icann.org <mailto:Accountability-Cross-Community@icann.org> > <mailto:Accountability-Cross-Community@icann.org <mailto:Accountability-Cross-Community@icann.org>> > > > <mailto:Accountability-Cross-Community@icann.org <mailto:Accountability-Cross-Community@icann.org> > <mailto:Accountability-Cross-Community@icann.org <mailto:Accountability-Cross-Community@icann.org>>> > > >
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<https://urldefense.proofpoint.com/v2/url?u=https-3A__mm.icann.org_mailma n_listinfo_accountability-2Dcross-2Dcommunity&d=AwMFaQ&c=MOptNlVtIETeDALC _lULrw&r=62cJFOifzm6X_GRlaq8Mo8TjDmrxdYahOP8WDDkMr4k&m=rX8zWSdUbF0XJ6RQyX 5HABE7NaQIgAXHj6WfvEXkLh8&s=Yqq66BmsF0-t9R7GjryZsv1k1c4OBxUhFvNoM2kB7g8&e => > > > > > > > > > > > > -- > > > > Jordan Carter > > > > Chief Executive > > *InternetNZ* > > > > 04 495 2118 (office) | +64 21 442 649 > > <tel:%2B64%2021%20442%20649> (mob) > > jordan@internetnz.net.nz <mailto:jordan@internetnz.net.nz> > <mailto:jordan@internetnz.net.nz <mailto:jordan@internetnz.net.nz>> > > <mailto:jordan@internetnz.net.nz <mailto:jordan@internetnz.net.nz> > <mailto:jordan@internetnz.net.nz <mailto:jordan@internetnz.net.nz>>> > > Skype: jordancarter > > > > /A better world through a better Internet / > > > > > > _______________________________________________ > > Accountability-Cross-Community mailing list > > Accountability-Cross-Community@icann.org <mailto:Accountability-Cross-Community@icann.org> > <mailto:Accountability-Cross-Community@icann.org <mailto:Accountability-Cross-Community@icann.org>> > > > <mailto:Accountability-Cross-Community@icann.org <mailto:Accountability-Cross-Community@icann.org> > <mailto:Accountability-Cross-Community@icann.org <mailto:Accountability-Cross-Community@icann.org>>> > > >
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Hi, Yes. The jaws of the IRP are the right jaws in my view. avri On 08-Jul-15 16:42, Burr, Becky wrote:
Avri -
Does it matter to you if the jaws are the jaws of a court or the jaws of the IRP?
B 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 7/7/15, 8:49 AM, "Avri Doria" <avri@acm.org> wrote:
Hi,
I do want to point out that I have moved away from the voluntary community model, though it remains dear to my heart to accepting a form of designator model.
I also see that the empowered membership models, is in some ways, similar to the empowered designator model. Unfortunately it also has the ability to slide down the slope to a full membership model. and as I have argued, I think that leaves ICANN not only without proper checks and balnces, but into the jaws of the courts.
avri
On 07-Jul-15 08:29, Jordan Carter wrote:
Hi all,
Firstly I think facts speak for themselves, but it is our understanding of them - including how they change through the accumulation of further facts - that changes over time. And am not a scientist. Nor a lawyer :-)
On Avri's broad point, it does summn up a nub of the debate. I reiterate for the record that my concern with ICANN's post-transition reality is that power is concentrated from the status quo (NTIA - Board, with community advie) into a newly powerful and concentrated single entity - the ICANN Board.
The purpose of a membership or designator model is to distribute power into the global multistakeholder community, as organised through the SO/AC structure, which is how ICANN organises the various stakeholders with interests in the DNS.
There's no claim of perfection in such a model. Quite the opposite. The whole point of a distribution of power is to share accountability and responsibility more broadly.
The "voluntary" model concentrates power in one place to an unhealthy degree. It is difficult for me to understand how anyone could accept a clear worsening of accountability and concentration of power that it represents, compared with the status quo.
Seems to me the sole difference between members and designators comes down to how strong you want the auhority of the community to be. Neither represents "total" power: there is no abrogation in either of the Board's responsibility to govern ICANN consistent with its limited mission and consistent with the global public interest.
All that either offers is an acknowledgement that authority in the DNS community should lie with stakeholders. Organised through the SOs and ACs.
That's the same as where authority in the RIR community lies.
As I understand it, it is also pretty similar towhere authority in the protocols community lies.
It isn't clear to me why the names community would settle for a less reliable and reputable model.
Anyhow, much fodder for thought as we come to Paris. I think we have to acknowledge that the differences here are of degree, except in regards to the voluntary model. That oe stands on its own as a unique reallocation of authority into a single place in a manner that would ceate serious risks for all of us in assuring the stability and security of the DNS.
best Jordan
On 7 July 2015 at 23:52, Avri Doria <avri@acm.org <mailto:avri@acm.org>> wrote:
Hi,
To start, I believe that facts are just things that people believe to be the case. I try not to speak of anthing stronger that a belief. Both my personal history and world histoy, even history of science - that bastion of fact, shows me that yesterda's Fact is often just a matter of prejudice, superstition and point of view.
In terms of the accountability problem with the membership model, it has been discussed before. Fairly extensively. Some of the gaps such as those exposed by the UA have been eliminated, but others have not. Some involve the degree to which the various SOAC are really the solid organizations we portray. As Iwrote in an earlier message where i spoke of the SOAC themselves: > Having been a member or observer of many of these entities I have fond > that they are often disorganized, ruled by a few strong personalities in > a se of apathy, and given to making up rules on the fly when needed. > They do not even necessarily follow the rules they have agreed to in the > charters, hough some do, not all of them. And for the most part, though > they are supposed to transparent, most aren't.
Are these structures really fit of unchecked rule? How can we show that?
For me the primary deficit is the loss of checks and balances.
The current system relies on a set of checks and balances between the Board andthe rest of the community. The current problem is that the power of the rest of the community seem too weak to many, allowing the Board to seemingly work without any checks on its activities.
By strengthening the community in the designator model, we strengthen the set of checks and balance between the Board and the rest of the community. By doing so, we increase accountability.
There is a reciprocity in this notion of accountability, one that does not require external oversight. We vote them in, can appeal the board in a serious manner and will even be able to vote them out by some yet to be determined procedure. And the Board, can review the degree to which the stakeholder groups are fulfilling their mandate to represent the larger community within the ICANN mission. In a sense there is mutual reciprocal oversight. The Board and the rest of the community check each other and establish a functional balance. Most of the this CCWG's activities are working on the details of these check and balances.
That is other than the grand reorganization of ICANN into a membership organization. Something that leaves the current check and balances behind and attempts to create a major new structure.
In the designator model the Board can make decisions and we can appeal them. And we make recommendations and give advise the Board needs to give it serious consideration on penalty of appeal. In extreme case they can be removed from their duties and we can be subjected to disussions of reorganization.
Going to the membership model eliminaes this balance by giving the putative community representatives supreme power. How can that power be appealed? Can membership decisions be appealed, by whom and to whom? Who determines whether the ACSO are adequately representing the global community and living up to their obligations under the bylaws? Membership turns the Board into an administrative unit without sufficient power to act as a check or balance to the ACSOs.
Eliminating any checks and balances on the ACSO from the accountability equation seems to be a critical failure to me in the creation of a new accountability regime. Perhaps if we were going with the individual membership option a degree of accountability to global members could be argued, not sure. But I believe that is not what we are working on as that would involve even greater difficulty to get right. We are not even working on a model where organizations that exist on their own come together to form a group. Our ACSO are artificial organizations created by and within ICANN. Our multistakeholder model depends on the interaction and interplay of these organization with the Board and on the checks and balances between them.
Perhaps you have 'fact based' responses to all the possible accountability questions that NTIA might ask us about this new power structure you favor. I do not believe tht you can show how the ACSO will be responsible to the global Internet community. I a rogue set of ACSO can be stopped from doing things that harm the organizations or the Internet without allowing the Board some degree of decision making based on the confluence of recommendations and advice received from the various ACSO and the greater community.
As was stated in the call by NTIA, it was up to us to show how anything new we created could be held accountable. As far as I can tell in membership there is no way to hold the members accountable. In the designator model we show how we are adding accountability measures. In the membership model we require the ACSO to verify their own representativity, but I have seen no expression of how they can do that or show that it is the case. When I speak of having a "much higher threshold" in proving ACSO accountabilty to the global public interest, this is what I mean. How are you going to prove, as you say - with the facts that you believe in, that the membership model is more accountable given its unassailable postion in a membership organization.
I have seen no evidence of membership creating greater accountability to the global public interest. I cannot state that I believe it is impossible for it to do so, just that I have seen no evidence of it.
avri
On 06-Jul-15 21:01, Edward Morris wrote: > Hello Avri, > > > I believe membership raises the issues of accountability to the full > diversity of stakeholders to a much higher threshold, including the > issue of the degree to which ICANN is accountable to stakeholders not > included among our SG/C/RALO/ALS / as well as among parrticpating CCs
and govts.
> > > > Please, if possible, raise your concerns stating fact rather than > belief. Maybe there is something I have missed. There is absolutely no > difference in the openness to non ICANN stakeholders between the > empowered membership and empowered designator models.At least I don't > see any. Both are based upon the current SOAC's. If there is a > ifference in this area I need to and want to be educated. Please > respond with specific and detailed instances or examples of why what > you claim is true is. Vague general > Again, I am open to be educated and persuaded but with substantive > fact rather than vague as yet unsubstantiated beliefs. > > No model is as open to non SOAC's as is Malcolm's proposal for > individual membership. That, again, is a membership modip model and if not why not? Would you > prefer other models to be looked at that are not based upon the > SOAC's? I think that would be a very reasonable position and one I > certainly am open to supporting if a workable model would be proposed. > As yet I have not seen o > > > > I think enough of the comments bring out questions of > accountability in > p option less than > optimal. > > > > What comments are you referring to? Certainly not the public comments > which were basically supportive of membership. Are these comments you > refer to based upon vague generalities or specific proboblems what specifically are they? Should we not > determine whether there are solution to those problems rather ht? If not, what are your views as to > the ultimate apparent unenforceability of the designator model in > certain areas? Do you disagree with Paul Rosenzweig when he states > that "a direct community veto of budget and strategic plan remains > essential to accountability"? If not, what do you propose to do in > tese areas without membership. Should we simply forget them? > > I do think there may be another option or two out there and hopefully > working with our counsel we'll find them. > > In the interim, I really am looking to be educated. No one has taught > me more about ICANN since I became involved in it than you Avri. I'm > just not easily persuadable by vague opinions, I'm a fact based sort > of guy. As this process has moved forward I've seen your views and > positions change. To me, that is an admirable sign of someone truly > looking for an optimal answer rather than one who is clinging to a > defined position. I'm just having some trouble understanding, > factually, the specific objections you are now raising about > membership. I hope you can help me understand so I can better test and > evaluate my own views.. > > Thanks, > > Ed > > > > On 06-Jul-15 19:05, Edward Morris wrote: > > +1. Well said. > > > > > > On Mon, Jul 6, 2015 at 9:04 PM, Jonathan Zuck > <JZuck@actonline.org <mailto:JZuck@actonline.org> <mailto:JZuck@actonline.org <mailto:JZuck@actonline.org>> > > <mailto:JZuck@actonline.org <mailto:JZuck@actonline.org> <mailto:JZuck@actonline.org <mailto:JZuck@actonline.org>>>> wrote: > > > > Hmm. I think it¹s important to bear in mind that there was > > overwhelming consensus among the public comments to support the > > membership model. The detractors from the model, while important > > and perhaps critical, are not in the majority. I¹m not sure this > > process speaks to how we better use counsel as much as how we > > achieve consensus on principles. > > > > > > > > > > > > > > *From:*accountability-cross-community-bounces@icann.org <mailto:accountability-cross-community-bounces@icann.org> > <mailto:accountability-cross-community-bounces@icann.org <mailto:accountability-cross-community-bounces@icann.org>> > > <mailto:accountability-cross-community-bounces@icann.org <mailto:accountability-cross-community-bounces@icann.org> > <mailto:accountability-cross-community-bounces@icann.org <mailto:accountability-cross-community-bounces@icann.org>>> > > [mailto:accountability-cross-community-bounces@icann.org <mailto:accountability-cross-community-bounces@icann.org> > <mailto:accountability-cross-community-bounces@icann.org <mailto:accountability-cross-community-bounces@icann.org>> > > <mailto:accountability-cross-community-bounces@icann.org <mailto:accountability-cross-community-bounces@icann.org> > <mailto:accountability-cross-community-bounces@icann.org <mailto:accountability-cross-community-bounces@icann.org>>>] *On > > Behalf Of *Seun Ojedeji > > *Sent:* Monday, July 6, 2015 3:50 PM > > *To:* Becky Burr > > *Cc:* accountability-cross-community@icann.org <mailto:accountability-cross-community@icann.org> > <mailto:accountability-cross-community@icann.org <mailto:accountability-cross-community@icann.org>> > > <mailto:accountability-cross-community@icann.org <mailto:accountability-cross-community@icann.org> > <mailto:accountability-cross-community@icann.org <mailto:accountability-cross-community@icann.org>>> > > *Subject:* Re: [CCWG-ACCT] Who is managing the lawyers and what > > have they beenasked to do? > > > > > > > > Hi Becky, > > > > Thanks for asking, item 3 is actually in connection to the fact > > that such veto may not be possible without item 1(as I > understood > > it) and that is why I said an indirect veto can happen not > that I > > was entirely suggesting that those powers be off the table. > > > > It seem however that folks are only looking at the powers > and not > > at what it will take to have them. > > > > By the way, I also did put in a reservation that we may not > > necessarily agree with those views but my concern is mainly that > > the ccwg does not spend so much time developing proposals > that we > > know has certain implementation requirements that are not > > compatible with the ICANN community structure. I think we should > > learn from the the past (based on comments from the last PC) and > > utilize legal council and volunteer hours more effectively. > > > > FWIW speaking as participant. > > > > Regards > > > > On 6 Jul 2015 8:08 pm, "Burr, Becky" <Becky.Burr@neustar.biz <mailto: > <mailto:Becky.Burr@neustar.biz <mailto:Becky.Burr@neustar.biz>> > > <mailto:Becky.Burr@neustar.biz <mailto:Becky.Burr@neustar.biz> > <mailto:Becky.Burr@neustar.biz <mailto:Becky.Burr@neustar.biz>>>> wrote: > > > > Seun, > > > > > > > > I am not sure why we would take direct budget/strat plan > veto > > off the table. Could you explain? Thanks. > > > > > > > > Becky > > > > J. Beckwith Burr > > > > *Neustar, Inc. /* Deputy General Counsel and Chief > Privacy Officer > > > > 1775 Pennsylvania Avenue NW, Washington, DC 20006 > > > > Office: + 1.202.533.2932 <tel:%2B%201.202.533.2932> <tel:%2B%201.202.533.2932> > <tel:%2B%201.202.533.2932> Mobile: > > +1.202.352.6367 <tel:%2B1.202.352.6367> > > <tel:%2B1.202.352.6367> / becky.burr@neustar.biz <mailto:becky.burr@neustar.biz> > <mailto:becky.burr@neustar.biz <mailto:becky.burr@neustar.biz>> > > <mailto:becky.burr@neustar.biz <mailto:becky.burr@neustar.biz> > <mailto:becky.burr@neustar.biz <mailto:becky.burr@neustar.biz>>> / www.neustar.biz <http://www.neustar.biz> > <http://www.neustar.biz> > > <http://www.neustar.bi > > > > > > *From: *Seun Ojedeji <seun.ojedeji@gmail.com <mailto:seun.ojedeji@gmail.com> > <mailto:seun.ojedeji@gmail.com <mailto:seun.ojedeji@gmail.com>> > > <mailto:seun.ojedeji@gmail.com>> <mailto:seun.ojedeji@gmail.com> > <mailto:seun.ojedeji@gmail.com <mailto:seun.ojedeji@gmail.com>>>> > > *Date: *Monday, July 6, 2015 at 11:09 AM > > *To: *Robin Gross <robin@ipjustice.org <mailto:robin@ipjustice.org> > <mailto:robin@ipjustice.org <mailto:robin@ipjustice.org>> > > <mailto:robin@ipjustice.org <mailto:robin@ipjustice.org> <mailto:robin@ipjustice.org <mailto:robin@ipjustice.org>>>> > > *Cc: *Accountability Community > > <accountability-cross-community@icann.org <mailto:accountability-cross-community@icann.org> > <mailto:accountability-cross-community@icann.org <mailto:accountability-cross-community@icann.org>> > > <mailto:accountability-cross-community@icann.org <mailto:accountability-cross-community@icann.org> > <mailto:accountability-cross-community@icann.org <mailto:accountability-cross-community@icann.org>>>> > > *Subject: *Re: [CCWG-ACCT] Who is managing the lawyers and > > what have they beenasked to do? > > > > > > > > Hi, > > > > I have no problem with having a new proposal presented. > > However it is important that there some adherence to basic > > principles on proposals that the ccwg would not want to > > explore. Three areas comes to mind: > > > > - Its my understanding that anything that will turn some/all > > of the SO/AC to members and thereby exposing them to legal > > challenge is not acceptable > > > > - Its my understanding that anything that alloof > > individual board member without the approval of the > entire(or > > larger part) of the community is not acceptable > > > > - Its my understanding that a solution that allows direct > > community veto on certain elements like budget, > strategic plan > > et all is not acceptable but an indirect enforcement > could be > > considered (i.e using a power to get another power executed > > indirectly) > > > > > > > > Some/none of the above may be acceptable by us, but my point > > is that there should be some focus going forward, especially > > if the target of ICANN54 is to be meet > > > > Regards > > > > > > > > > > > > On Mon, Jul 6, 2015 at 3:37 PM, Robin Gross > > <robin@ipjustice.org <mailto:robin@ipjustice.org> <mailto:robin@ipjustice.org <mailto:robin@ipjustice.org>> > <mailto:robin@ipjustice.org <mailto:robin@ipjustice.org> <mailto:robin@ipjustice.org <mailto:robin@ipjustice.org>>>> wrote: > > > > I would also like to hear what they propose at this > > stage. I really don't see how it could hurt to have > > another proposal to consider. Larry Strickling did > say he > > wanted us to be sure we examined all the options > carefully. > > > > > > > > Thanks, > > > > Robin > > > > > > > > On Jul 6, 2015, t 7:32 AM, Greg Shatan wrote: > > > > > > > > I agree. We should have the benefit of their > thoughts. > > > > > > > > >> > > > > > > > > On Mon, Jul 6, 2015 at 9:38 AM, Jordan Carter > > <jordant.nz <mailto:jordan@internetnz.net.nz> > <mailto:jordan@internetnz.net.nz <mailto:jordan@internetnz.net.nz>> > > <mailto:jordan@internetnz.net.nz <mailto:jordan@internetnz.net.nz> > <mailto:jordan@internetnz.net.nz <mailto:jordan@internetnz.net.nz>>>> wrote: > > > > Well, I would really really like to see what the > > creative thinking they have done has > suggested. I > > trust our ability as a group to make decisions, > > and do not believe we should cut off input from > > any direction... > > > > > > > > Jordan > > > > > > > > On 7 July 2015 at 01:13, James Gannon > > <james@cyberinvasion.net <mailto:james@cyberinvasion.net> > <mailto:james@cyberinvasion.net <mailto:james@cyberinvasion.net>> > > <mailto:james@cyberinvasion.net <mailtberinvasion.net> > <mailto:james@cyberinvasion.net <mailto:james@cyberinvasion.net>>>> wrote: > > > > Hey Avri, > > > > > > > > Yes the 3rd model was brought up, and the > > lawyers feel that it might be a cleaner way for us to get the powers that we need. > > > > But without a call from the CCWG to > present it > > they feel that its not their position to > > propose a model on their own initiative. > > > > > > > > Personally i would like to see what they > have > > come up with but the CCWG would need to > ask as > > an overall group for the chairs to > direct them > > to give some more information on the > model if > > we wanted it. > > > > I think if after we hear from them on > Tuesdays > > call we still feel we might have some > > shortcomings that it might be the time > to ask > > them about the 3rd option. > > > > > > > > Also +1 I think they are really enjoying the > > and are finding themselves getting more > > and more involved as we go on, which is > great > > for the CCWG as the more background and > > details they know the better that are > able to > > give us solid well reasoned advice in my > opinion. > > > > > > > > -James > > > > > > > > > > > > On 6 Jul 2015, at 13:19, Avri Doria > > <avri@acm.org <mailto:avri@acm.org> <mailto:avri@acm.org <mailto:avri@acm.org>> > <mailto:avri@acm.org <mailto:avri@acm.org> <mailto:avri@acm.org <mailto:avri@acm.org>>>> wrote: > > > > > > > > Hi, > > > > I have not had a chance to get back > to the > > recording of the call. Not > > sure I wilt time was the time > I had > > for that call and that is why > > i was listening then. > > > > In any case, th lawyers were talking > > about a new model they had come up > > with, but not knowing what to do > about it > > since they had not been asked > > for a new model.
>
> > I was told to leave before I got to hear > > the end of that story. Or about > > the model itself. Anyone who has had a > > chance to listen, whatever happened? > > > > avri > > > > ps. sometimes i think the lawyers are > > getting interested in what we are > > doing, almost like stakeholders. not > that > > i expect them to give up their > > hourly rates because they are > stakeholders. > > > > On 06-Jul-15 05:07, James Gannon wrote: > > > > > > I listened to the last co-chairs > > lawyers¹ call at; > > >
https://urldefense.proofpoint.com/v2/url?u=https-3A__community.icann.org_ pages_viewpage.action-3FpageId-3D53782602&d=AwIF-g&c=MOptNlVtIETeDALC_lUL rw&r=62cJFOifzm6X_GRlaq8Mo8TjDmrxdYahOP8WDDkMr4k&m=WFn00v80Cv5VwEgmjVcgIG rVjb75abO-S6JrONX7jKM&s=zSmXcLCXRxT8cvoxbhuDA2mgEJqygwNhe2KdqzxJaeo&e= > > >
<https://urldefense.proofpoint.com/v2/url?u=https-3A__community.icann.org _pages_viewpage.action-3FpageId-3D53782602&d=AwMFaQ&c=MOptNlVtIETeDALC_lU Lrw&r=62cJFOifzm6X_GRlaq8Mo8TjDmrxdYahOP8WDDkMr4k&m=rX8zWSdUbF0XJ6RQyX5HA BE7NaQIgAXHj6WfvEXkLh8&s=5REzt6Gk0Mt5evnhe_F8O87Kpc4hX8wql7vP--WYsnQ&e=> > > (I¹m a glutton for punishment) > > > > > > > > It was a short call and I¹ll make a > > particular note that Leon and > > Mathieu made a point of not > making any > > decisions on behalf of the > > whole group and made it clear > anything > > requiring a decision must be > > made by the overall CCWG, so I was > > happy with that side of things > > myself, ost of my own fears > about not > > having a sub-group are somewhat > > assuaged. > > > > So my paraphrasing and overview is: > > > > > > > > · Lawyers working hard > on the > > models for us collaboratively > > between the two firms since BA > > > > · Lawyers are prepping a > > presentation to give to us ASAP > > before Paris if possible, that > > presentation will take the > majority of > > a call, it can¹t be done > quickly, they > > need about 45mins uninterrupted > > to go through the presentation and > > then would likely need Q&A time > > after they present. > > > > · Some small > > wording/clarifications to come > back to > > the CCWG > > to make sure everyone¹s on the > same page > > > > · Everyone feels Paris > will be > > an important time for the > > models, lawyers will be ready for a > > grilling on the details of the > > models from us to flesh out any > of our > > concerns/questions > > > > > > > > Note that the above is all my very > > condensed overview of the > > conversations. > > > > It seemed like a productive call > to me. > > > > > > > > -James > > > > > > > > > > > > > *From:*accountability-cross-community-bounces@icann.org <mailto:accountability-cross-community-bounces@icann.org> > <mailto:accountability-cross-community-bounces@icann.org <mailto:accountability-cross-community-bounces@icann.org>> > > > <mailto:accountability-cross-community-bounces@icann.org <mailto:accountability-cross-community-bounces@icann.org> > <mailto:accountability-cross-community-bounces@icann.org <mailto:accountability-cross-community-bounces@icann.org>>> > > > [mailto:accountability-cross-community-bounces@icann.org <mailto:accountability-cross-community-bounces@icann.org> > <mailto:accountability-cross-community-bounces@icann.org <mailto:accountability-cross-community-bounces@icann.org>> > > > <mailto:accountability-cross-community-bounces@icann.org <mailto:accountability-cross-community-bounces@icann.org> > <mailto:accountability-cross-community-bounces@icann.org <mailto:accountability-cross-community-bounces@icann.org>>>] > > *On Behalf > > Of *Greg Shatan > > *Sent:* Monday, July 06, 2015 > 5:33 AM > > *To:* Carlos Raul > > *Cc:* > > > accountability-cross-community@icann.org <mailto:accountability-cross-community@icann.org> > <mailto:accountability-cross-community@icann.org <mailto:accountability-cross-community@icann.org>> > > > <mailto:accountability-cross-community@icann.org <mailto:accountability-cross-community@icann.org> > <mailto:accountability-cross-community@icann.org <mailto:accountability-cross-community@icann.org>>> > > *Subject:* Re: [CCWG-ACCT] Who is > > managing the lawyers and what have > > they beenasked to do? > > > > > > > > Carlos, > > > > > > > > As the legal sub-team was disbanded, > > your guess is as good as mine..... > > > > > > > > Greg > > > > > > > > On Mon, Jul 6, 2015 at 12:27 AM, > > Carlos Raul > <carlosraulg@gmail.com <mailto:carlosraulg@gmail.com> <mailto:carlosraulg@gmail.com <mailto:carlosraulg@gmail.com>> > > <mailto:carlosraulg@gmail.com <mailto:carlosraulg@gmail.com> > <mailto:carlosraulg@gmail.com <mailto:carlosraulg@gmail.com>>> > > <mailto:carlosraulg@gmail.com <mailto:carlosraulg@gmail.com> > <mailto:carlosraulg@gmail.com <mailto:carlosraulg@gmail.com>>>> wrote: > > > > Thank you Greg! > > > > > > > > It makes a lot of sense and I > guess > > those are all good reasons as > > we hired them in the first place. > > What are the next steps now? > > What happened in the recent call? > > > > > > > > Best regards > > > > > > > > > > Carlos Raúl Gutiérrez > > > > +506 8837 7176 <tel:%2B506%208837%207176> > <tel:%2B506%208837%207176> > > <tel:%2B506%208837%207176> > > <tel:%2B506%208837%207176> > > > > Skype carlos.raulg > > > > _________ > > > > Apartado 1571-1000 > > > > *COSTA RICA* > > > > > > > > > > > > On Mon, Jul 6, 2015 at 12:02 AM, > > Greg Shatan > > <gregshatanipc@gmail.com <mailto:gregshatanipc@gmail.com> > <mailto:gregshatanipc@gmail.com <mailto:gregshatanipc@gmail.com>> > > <mailto:gregshatanipc@gmail.com <mailto:gregshatanipc@gmail.com> > <mailto:gregshatanipc@gmail.com <mailto:gregshatanipc@gmail.com>>> <mailto:gregshatanipc@gmail.com <mailto:gregshatanipc@gmail.com> > <mailto:gregshatanipc@gmail.com <mailto:gregshatanipc@gmail.com>>>> > > wrote: > > > > Chris, > > > > > > > > That was tried to some > extent, > > at least in the CWG. > > > > > > > > There are several substantial > > problems with that approach. > > > > > > > > First, lawyers are not > > fungible. The particular legal > skills, > > background and experience > > required for the issues before both > > WGs are fairly specific, > and in > > some cases, very specific. > > The primary core competency > > needed here is corporate > > governance. While a > number of > > lawyers in the community have a > > reasonable working > knowledge of > > the area, at least in their > > home jurisdictions, I don't > > believe there are any who would > > say that this is their > primary > > focus and expertise -- at least > > none who identified > themselves > > to either WG. The second core > > competency required, > especially > > in the CCWG, is non-profit > > law. Again there are a number > > of lawyers with a decent working > > knowledge of this fairly > broad > > field, but not as a primary > > focus. There may be a couple > > of lawyers in the community who > > would claim this fairly broad > > field as a primary focus and > > expertise -- but none who > > became involved with either WG. > > This then becomes further > > narrowed by jurisdiction. Since > > ICANN is a California > > non-profit corporation, US corporate > > governance and non-profit > > experience is more relevant than > > experience from other > > jurisdictions, and California law > > corporate governance and > > non-profit experience is more > > relevant than that from other > > US jurisdictions. In my > > experience, the more a US > > lawyer focuses on a particular > > substantive area, the greater > > their knowledge of and comfort > > with state law issues in US > > state jurisdictions other than > > their own (e.g., someone who > > spend a majority of their time > > working in corporate > governance > > will have a greater knowledge > > of the law, issues, > approaches > > and trends outside their > > primary state of practice, > > while someone who spends a > > relatively small amount > of time > > in the area will tend to feel > > less comfortable outside > their > > home jurisdiction). (An > > exception is that many US > > lawyers have specific knowledge of > > certain Delaware > corporate law > > issues, because Delaware often > > serves as the state of > > incorporation for entities operating > > elsewhere.) > > > > > > > > Second, lawyers in the > > community will seldom be seen as > > neutral advisors, no > matter how > > hard they try. They will tend > > to be seen as working from > > their point of view or stakeholder > > group or "special > interest" or > > desired outcome, even if they > > are trying to be even-handed. > > Over the course of time, this > > balancing act would tend to > > become more untenable. > > > > > > > > Third, the amount of time it > > would take to provide truly > > definitive legal advice > > (research, careful drafting, > > discussions with relevant > > "clients", etc.) would be > > prohibitive, even compared to > > the substantial amount of time > > it takes to provide > reasonably > > well-informed and competent > > legal-based viewpoints in the > > course of either WG's work. > > > > > > > > Fourth, in order to formally > > counsel the community, the lawyer > > or lawyers in question would > > have to enter into a formal > > attorney-client relationship. > > Under US law, an > > attorney-client relationship > > may inadvertently be created by > > the attorney's actions, so > > attorneys try to be careful about > > not providing formal legal > > advice without a formal engagement > > (sometimes providing an > > explicit "caveat" if they feel they > > might be getting too close to > > providing legal advice). If the > > attorney is employed by a > > corporation, they would likely be > > unable to take on such a > > representation due to the terms of > > their employment, and that is > > before getting to an exploration > > of conflict of interest > > issues. If the attorney is employed > > by a firm, the firm would > have > > to sign off on the > > representation, again dealing > > with potential conflict issues. > > > > > > > > Fifth, even if the above > issues > > were all somehow resolved, it > > would be highly unlikely that > > any such attorney would provide > > substantial amounts of > advice, > > written memos, counseling, etc. > > on a pro bono (unpaid) basis, > > especially given the > > time-consuming nature of the > > work. Pro bono advice and > > representation is generally > > accorded to individuals and > > entities that could not > > otherwise be able to pay for > it. That > > is clearly not the case here, > > at least with ICANN taking > > financial responsibility. It > > would likely be very difficult > > to justify this to, e.g., a > > firm's pro bono committee, as a > > valid pro bono > representation. > > > > > > > > Sixth, if ICANN were not > taking > > the role they are taking, it > > would be extremely > difficult to > > identify the "client" in this > > situation. The > "community" is > > a collection of sectors, > > mostly represented by various > > ICANN-created structures, which > > in turn have members of > widely > > varying types (individuals, > > corporations, sovereigns, > > non-profits, IGOs, partnerships, > > etc.). This would also > make it > > extremely difficult to enter > > into a formal counseling > > relationship with the "community." > > > > > > > > Seventh, this is a sensitive, > > high-profile, transformative set > > of actions we are > involved in, > > which is subject to an > > extraordinary amount of > > scrutiny, not least that of the NTIA > > and the US Congress. That > > eliminates any possibility of > > providing informal, > > off-the-cuff, reasonably > well-informed but > > not quite expert, > "non-advice" > > advice -- which might happen in > > a more obscure exercise. > > There's simply too much at stake. > > > > > > > > Finally, I would say that a > > number of attorneys involved in > > one or both of the WGs are in > > fact providing a significant > > amount of legal knowledge and > > experience to the WGs, helping > > to frame issues, whether in > > terms of general leadership (e.g., > > Thomas, Leon, Becky) or more > > specifically in a > > "lawyer-as-client" > capacity -- > > working with outside counsel, > > tackling the more legalistic > > issues, providing as much legal > > background and knowledge as > > possible without providing the > > type of formal legal advice > > that would tend to create an > > attorney-client relationship, > > etc. So I do think that many > > lawyers in the community are > > giving greatly of themselves in > > this process, even though > they > > cannot and would not be able to > > formally be engaged by the > > community as its "counsel of > record." > > > > > > > > In sum, it might be a nice > > thought in theory, but it is no way > > a practical possibility. > > > > > > > > Greg > > > > > > > > On Sat, Jul 4, 2015 at > 3:08 AM, > > CW Lists > > > <lists@christopherwilkinson.eu <mailto:lists@christopherwilkinson.eu> <mailto:lists@christopherwilkinson.eu <mailto:lists@christopherwilkinson.eu>> > > > <mailto:lists@christopherwilkinson.eu <mailto:lists@christopherwilkinson.eu> > <mailto:lists@christopherwilkinson.eu <mailto:lists@christopherwilkinson.eu>>> > > > <mailto:lists@christopherwilkinson.eu <mailto:lists@christopherwilkinson.eu> > <mailto:lists@christopherwilkinson.eu <mailto:lists@christopherwilkinson.eu>>>> > > wrote: > > > > Good morning: > > > > > > > > I had decided not to > enter > > this debate. But I am bound to > > say that the thought had > > occurred to me at the time, that > > there were more than > enough > > qualified lawyers in this > > community that they could > > perfectly well have counselled S > > themselves. > > > > > > > > CW > > > > > > > > On 04 Jul 2015, at 08:41, > > Greg Shatan > > > <gregshatanipc@gmail.com <mailto:gregshatanipc@gmail.com> <mailto:gregshatanipc@gmail.com <mailto:gregshatanipc@gmail.com>> > > <mailto:gregshatanipc@gmail.com <mailto:gregshatanipc@gmail.com> > <mailto:gregshatanipc@gmail.com <mailto:gregshatanipc@gmail.com>>> <mailto:gregshatanipc@gmail.com <mailto:gregshatanipc@gmail.com> > <mailto:gregshatanipc@gmail.com <mailto:gregshatanipc@gmail.com>>>> > > wrote: > > > > > > > > Wolfgang, > > > > > > > > To your first point, > > the billing rates were clearly > > stated in the law > > firms' engagement letters. > > > > > > > > To your second point, > > I'm sure we could all think of > > other projects and > > goals where the money could have > > been "better spent." > > You've stated yours. But that > > is not the proper > > test. This was and continues to be > > money we need to > spend > > to achieve the goals we have > > set. Under different > > circumstances, perhaps it would > > be a different amount > > (or maybe none at all). But it > > was strongly felt at > > the outset that the group needed > > to have independent > > counsel. Clearly that counsel > > needed to have > > recognized expertise in the > appropriate > > legal areas. As > such, > > I believe we made excellent > > choices and have been > > very well represented. > > > > > > > > As to your "better > > spent" test, I just had to have > > $4000.00 worth of > > emergency dental work done. This > > money definitely > could > > have been "better spent" on a > > nice vacation, > > redecorating our living room or on > > donations to my > favored > > charitable causes. But I had > > no choice, other than > > to choose which dentist and > > endodontist I > went to, > > and I wasn't going to cut > > corners -- the dental > > work was a necessity. > > Similarly, the legal > > work we are getting is a > > necessity and whether > > we would have preferred to spend > > the money > elsewhere is > > not merely irrelevant, it is an > > incorrect and > > inappropriate proposition. Many > of us > > are investing vast > > quantities of time that could be > > "better spent" > > elsewhere as well, but we are > willing > > (grudgingly > sometimes) > > to spend the time it takes to > > get it right, because > > we believe it needs to be done. > > This is the > appropriate > > measure, whether it comes to > > our time or counsels' > > time. If we believe in this > > project, we have to > > invest in it, and do what it takes > > to succeed. > > > > > > > > Of course, this > > investment has to be managed wisely > > and cost-effectively, > > and by and large, I believe the > > CCWG has done that > > reasonably well -- not perfectly, > > but reasonably > well and > > with "course corrections" > > along the way > intended > > to improve that management. > > It's certainly > fair to > > ask, as Robin has done, for a > > better > understanding of > > that management as we go > > along. But asserting > > that the money could have been > > "better spent" > > elsewhere sets up a false test > that we > > should not use to > > evaluate this important aspect of > > our work. > Instead, we > > need to focus on whether the > > money was "well > spent" > > on these critical legal > > services. If you have > > reason to believe it was not, > > that could be > useful to > > know. That would at least be > > the right > discussion to > > have. > > > > > > > > Greg > > > > > > > > On Sat, Jul 4, > 2015 at > > 1:13 AM, "Kleinwächter, > > Wolfgang" > > > <wolfgang.kleinwaechter@medienkomm.uni-halle.de <mailto:wolfgang.kleinwaechter@medienkomm.uni-halle.de> > <mailto:wolfgang.kleinwaechter@medienkomm.uni-halle.de <mailto:wolfgang.kleinwaechter@medienkomm.uni-halle.de>> > > > <mailto:wolfgang.kleinwaechter@medienkomm.uni-halle.de <mailto:wolfgang.kleinwaechter@medienkomm.uni-halle.de> > <mailto:wolfgang.kleinwaechter@medienkomm.uni-halle.de <mailto:wolfgang.kleinwaechter@medienkomm.uni-halle.de>>> > > > <mailto:wolfgang.kleinwaechter@medienkomm.uni-halle.de <mailto:wolfgang.kleinwaechter@medienkomm.uni-halle.de> > <mailto:wolfgang.kleinwaechter@medienkomm.uni-halle.de <mailto:wolfgang.kleinwaechter@medienkomm.uni-halle.de>>>> > > wrote: > > > > HI, > > > > and please if you > > ask outside lawyers, ask for the > > price tag in > > advance. Some of the money spend fo > > lawyers could > have > > been spend better to suppport > > and enable > Internet > > user and non-commercial groups > > in developing > > countries. > > > > > > Wolfgang > > > > > > > > > > > > > -----Ursprüngliche > > Nachricht----- > > Von: > > > accountability-cross-community-bounces@icann.org <mailto:accountability-cross-community-bounces@icann.org> > <mailto:accountability-cross-community-bounces@icann.org <mailto:accountability-cross-community-bounces@icann.org>> > > > <mailto:accountability-cross-community-bounces@icann.org <mailto:accountability-cross-community-bounces@icann.org> > <mailto:accountability-cross-community-bounces@icann.org <mailto:accountability-cross-community-bounces@icann.org>>> > > > <mailto:accountability-cross-community-bounces@icann.org <mailto:accountability-cross-community-bounces@icann.org> > <mailto:accountability-cross-community-bounces@icann.org <mailto:accountability-cross-community-bounces@icann.org>>> > > im Auftrag von > > Robin Gross > > Gesendet: Fr > > 03.07.2015 14:57 > > An: > accountability-cross-community@icann.org <mailto:accountability-cross-community@icann.org> > <mailto:accountability-cross-community@icann.org <mailto:accountability-cross-community@icann.org>> > > > <mailto:accountability-cross-community@icann.org <mailto:accountability-cross-community@icann.org> > <mailto:accountability-cross-community@icann.org <mailto:accountability-cross-community@icann.org>>> > > > <mailto:accountability-cross-community@icann.org <mailto:accountability-cross-community@icann.org> > <mailto:accountability-cross-community@icann.org <mailto:accountability-cross-community@icann.org>>> > > Community > > Betreff: > > [CCWG-ACCT] Who is managing the > lawyers > > and what have > they > > beenasked to do? > > > > > > After the legal > > sub-team was disbanded, I haven't > > been able to > follow > > what communications are > > happening > with CCWG > > and the independent lawyers we > > retained. > > > > I understand the > > lawyers are currently "working on > > the various > models" > > and will present something to > > us regarding that > > work soon. However, *what > > exactly* have the > > lawyers been asked to do and > > *who* asked them? > > If there are written > > instructions, may > > the group please see them? Who > > is now taking on > > the role of managing the outside > > attorneys for > this > > group, including providing > > instructions and > > certifying legal work? > > > > Sorry, but I'm > > really trying to understand what is > > happening, and > > there doesn't seem to be much > > information > in the > > public on this (or if there is, > > I can't find it). > > Thanks for any information > > anyone can > provide. > > > > Best, > > Robin > > > > > _______________________________________________ > > > Accountability-Cross-Community > > mailing list > > > Accountability-Cross-Community@icann.org <mailto:Accountability-Cross-Community@icann.org> > <mailto:Accountability-Cross-Community@icann.org <mailto:Accountability-Cross-Community@icann.org>> > > > <mailto:Accountability-Cross-Community@icann.org <mailto:Accountability-Cross-Community@icann.org> > <mailto:Accountability-Cross-Community@icann.org <mailto:Accountability-Cross-Community@icann.org>>> > > > <mailto:Accountability-Cross-Community@icann.org <mailto:Accountability-Cross-Community@icann.org> > <mailto:Accountability-Cross-Community@icann.org <mailto:Accountability-Cross-Community@icann.org>>> > > >
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<https://urldefense.proofpoint.com/v2/url?u=https-3A__mm.icann.org_mailma n_listinfo_accountability-2Dcross-2Dcommunity&d=AwMFaQ&c=MOptNlVtIETeDALC _lULrw&r=62cJFOifzm6X_GRlaq8Mo8TjDmrxdYahOP8WDDkMr4k&m=rX8zWSdUbF0XJ6RQyX 5HABE7NaQIgAXHj6WfvEXkLh8&s=Yqq66BmsF0-t9R7GjryZsv1k1c4OBxUhFvNoM2kB7g8&e => > > > > > > > > > > > _______________________________________________ > > Accountability-Cross-Community mailing list > > Accountability-Cross-Community@icann.org <mailto:Accountability-Cross-Community@icann.org> > <mailto:Accountability-Cross-Community@icann.org <mailto:Accountability-Cross-Community@icann.org>> > > > <mailto:Accountability-Cross-Community@icann.org <mailto:Accountability-Cross-Community@icann.org> > <mailto:Accountability-Cross-Community@icann.org <mailto:Accountability-Cross-Community@icann.org>>> > > >
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<https://urldefense.proofpoint.com/v2/url?u=https-3A__mm.icann.org_mailma n_listinfo_accountability-2Dcross-2Dcommunity&d=AwMFaQ&c=MOptNlVtIETeDALC _lULrw&r=62cJFOifzm6X_GRlaq8Mo8TjDmrxdYahOP8WDDkMr4k&m=rX8zWSdUbF0XJ6RQyX 5HABE7NaQIgAXHj6WfvEXkLh8&s=Yqq66BmsF0-t9R7GjryZsv1k1c4OBxUhFvNoM2kB7g8&e => > > > > > > > > > > > > -- > > > > Jordan Carter > > > > Chief Executive > > *InternetNZ* > > > > 04 495 2118 (office) | +64 21 442 649 > > <tel:%2B64%2021%20442%20649> (mob) > > jordan@internetnz.net.nz <mailto:jordan@internetnz.net.nz> > <mailto:jordan@internetnz.net.nz <mailto:jordan@internetnz.net.nz>> > > <mailto:jordan@internetnz.net.nz <mailto:jordan@internetnz.net.nz> > <mailto:jordan@internetnz.net.nz <mailto:jordan@internetnz.net.nz>>> > > Skype: jordancarter > > > > /A better world through a better Internet / > > > > > > _______________________________________________ > > Accountability-Cross-Community mailing list > > Accountability-Cross-Community@icann.org <mailto:Accountability-Cross-Community@icann.org> > <mailto:Accountability-Cross-Community@icann.org <mailto:Accountability-Cross-Community@icann.org>> > > > <mailto:Accountability-Cross-Community@icann.org <mailto:Accountability-Cross-Community@icann.org> > <mailto:Accountability-Cross-Community@icann.org <mailto:Accountability-Cross-Community@icann.org>>> > > >
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Dear Co-Chairs, while this may be true, or not, it most certainly describes that there was not consensus among the public comments. el On 2015-07-06 21:04, Jonathan Zuck wrote:
Hmm. I think it’s important to bear in mind that there was overwhelming consensus among the public comments to support the membership model. The detractors from the model, while important and perhaps critical, are not in the majority. I’m not sure this process speaks to how we better use counsel as much as how we achieve consensus on principles.
At the moment I would not die in an ditch over a membership model or not. As a proponent of democratic legitimacy I have a distinct preference for the legitimacy that a grassroots membership model provides, but I am open to persuausion by the proponents of either. However, my understanding is that a membership model may not be acceptable to the one stakeholder that really counts. So is that true? And if so, how do we proceed? On 07/07/15 11:12, Dr Eberhard Lisse wrote:
Dear Co-Chairs,
while this may be true, or not, it most certainly describes that there was not consensus among the public comments.
el
On 2015-07-06 21:04, Jonathan Zuck wrote:
Hmm. I think it’s important to bear in mind that there was overwhelming consensus among the public comments to support the membership model. The detractors from the model, while important and perhaps critical, are not in the majority. I’m not sure this process speaks to how we better use counsel as much as how we achieve consensus on principles.
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Not that I care much, as it doesn't concern ccTLDs, however, not only because it is interesting, but also out of principle I think we MUST hear what they have to say. If they come up with something better than we have now, it is our duty to take it. el -- Sent from Dr Lisse's iPad mini
On Jul 6, 2015, at 15:37, Robin Gross <robin@ipjustice.org> wrote:
I would also like to hear what they propose at this stage. I really don't see how it could hurt to have another proposal to consider. Larry Strickling did say he wanted us to be sure we examined all the options carefully.
Thanks, Robin
On Jul 6, 2015, at 7:32 AM, Greg Shatan wrote:
I agree. We should have the benefit of their thoughts.
Greg
On Mon, Jul 6, 2015 at 9:38 AM, Jordan Carter <jordan@internetnz.net.nz> wrote: Well, I would really really like to see what the creative thinking they have done has suggested. I trust our ability as a group to make decisions, and do not believe we should cut off input from any direction...
Jordan
On 7 July 2015 at 01:13, James Gannon <james@cyberinvasion.net> wrote: Hey Avri,
Yes the 3rd model was brought up, and the lawyers feel that it might be a cleaner way for us to get the powers that we need. But without a call from the CCWG to present it they feel that its not their position to propose a model on their own initiative.
Personally i would like to see what they have come up with but the CCWG would need to ask as an overall group for the chairs to direct them to give some more information on the model if we wanted it. I think if after we hear from them on Tuesdays call we still feel we might have some shortcomings that it might be the time to ask them about the 3rd option.
Also +1 I think they are really enjoying the work and are finding themselves getting more and more involved as we go on, which is great for the CCWG as the more background and details they know the better that are able to give us solid well reasoned advice in my opinion.
-James
On 6 Jul 2015, at 13:19, Avri Doria <avri@acm.org> wrote:
Hi,
I have not had a chance to get back to the recording of the call. Not sure I will, that time was the time I had for that call and that is why i was listening then.
In any case, the lawyers were talking about a new model they had come up with, but not knowing what to do about it since they had not been asked for a new model.
I was told to leave before I got to hear the end of that story. Or about the model itself. Anyone who has had a chance to listen, whatever happened?
avri
ps. sometimes i think the lawyers are getting interested in what we are doing, almost like stakeholders. not that i expect them to give up their hourly rates because they are stakeholders.
On 06-Jul-15 05:07, James Gannon wrote:
I listened to the last co-chairs lawyers’ call at; https://community.icann.org/pages/viewpage.action?pageId=53782602 (I’m a glutton for punishment)
It was a short call and I’ll make a particular note that Leon and Mathieu made a point of not making any decisions on behalf of the whole group and made it clear anything requiring a decision must be made by the overall CCWG, so I was happy with that side of things myself, most of my own fears about not having a sub-group are somewhat assuaged.
So my paraphrasing and overview is:
· Lawyers working hard on the models for us collaboratively between the two firms since BA
· Lawyers are prepping a presentation to give to us ASAP before Paris if possible, that presentation will take the majority of a call, it can’t be done quickly, they need about 45mins uninterrupted to go through the presentation and then would likely need Q&A time after they present.
· Some small wording/clarifications to come back to the CCWG to make sure everyone’s on the same page
· Everyone feels Paris will be an important time for the models, lawyers will be ready for a grilling on the details of the models from us to flesh out any of our concerns/questions
Note that the above is all my very condensed overview of the conversations.
It seemed like a productive call to me.
-James
*From:*accountability-cross-community-bounces@icann.org [mailto:accountability-cross-community-bounces@icann.org] *On Behalf Of *Greg Shatan *Sent:* Monday, July 06, 2015 5:33 AM *To:* Carlos Raul *Cc:* accountability-cross-community@icann.org *Subject:* Re: [CCWG-ACCT] Who is managing the lawyers and what have they beenasked to do?
Carlos,
As the legal sub-team was disbanded, your guess is as good as mine.....
Greg
On Mon, Jul 6, 2015 at 12:27 AM, Carlos Raul <carlosraulg@gmail.com <mailto:carlosraulg@gmail.com>> wrote:
Thank you Greg!
It makes a lot of sense and I guess those are all good reasons as we hired them in the first place. What are the next steps now? What happened in the recent call?
Best regards
Carlos Raúl Gutiérrez
+506 8837 7176 <tel:%2B506%208837%207176>
Skype carlos.raulg
_________
Apartado 1571-1000
*COSTA RICA*
On Mon, Jul 6, 2015 at 12:02 AM, Greg Shatan <gregshatanipc@gmail.com <mailto:gregshatanipc@gmail.com>> wrote:
Chris,
That was tried to some extent, at least in the CWG.
There are several substantial problems with that approach.
First, lawyers are not fungible. The particular legal skills, background and experience required for the issues before both WGs are fairly specific, and in some cases, very specific. The primary core competency needed here is corporate governance. While a number of lawyers in the community have a reasonable working knowledge of the area, at least in their home jurisdictions, I don't believe there are any who would say that this is their primary focus and expertise -- at least none who identified themselves to either WG. The second core competency required, especially in the CCWG, is non-profit law. Again there are a number of lawyers with a decent working knowledge of this fairly broad field, but not as a primary focus. There may be a couple of lawyers in the community who would claim this fairly broad field as a primary focus and expertise -- but none who became involved with either WG. This then becomes further narrowed by jurisdiction. Since ICANN is a California non-profit corporation, US corporate governance and non-profit experience is more relevant than experience from other jurisdictions, and California law corporate governance and non-profit experience is more relevant than that from other US jurisdictions. In my experience, the more a US lawyer focuses on a particular substantive area, the greater their knowledge of and comfort with state law issues in US state jurisdictions other than their own (e.g., someone who spend a majority of their time working in corporate governance will have a greater knowledge of the law, issues, approaches and trends outside their primary state of practice, while someone who spends a relatively small amount of time in the area will tend to feel less comfortable outside their home jurisdiction). (An exception is that many US lawyers have specific knowledge of certain Delaware corporate law issues, because Delaware often serves as the state of incorporation for entities operating elsewhere.)
Second, lawyers in the community will seldom be seen as neutral advisors, no matter how hard they try. They will tend to be seen as working from their point of view or stakeholder group or "special interest" or desired outcome, even if they are trying to be even-handed. Over the course of time, this balancing act would tend to become more untenable.
Third, the amount of time it would take to provide truly definitive legal advice (research, careful drafting, discussions with relevant "clients", etc.) would be prohibitive, even compared to the substantial amount of time it takes to provide reasonably well-informed and competent legal-based viewpoints in the course of either WG's work.
Fourth, in order to formally counsel the community, the lawyer or lawyers in question would have to enter into a formal attorney-client relationship. Under US law, an attorney-client relationship may inadvertently be created by the attorney's actions, so attorneys try to be careful about not providing formal legal advice without a formal engagement (sometimes providing an explicit "caveat" if they feel they might be getting too close to providing legal advice). If the attorney is employed by a corporation, they would likely be unable to take on such a representation due to the terms of their employment, and that is before getting to an exploration of conflict of interest issues. If the attorney is employed by a firm, the firm would have to sign off on the representation, again dealing with potential conflict issues.
Fifth, even if the above issues were all somehow resolved, it would be highly unlikely that any such attorney would provide substantial amounts of advice, written memos, counseling, etc. on a pro bono (unpaid) basis, especially given the time-consuming nature of the work. Pro bono advice and representation is generally accorded to individuals and entities that could not otherwise be able to pay for it. That is clearly not the case here, at least with ICANN taking financial responsibility. It would likely be very difficult to justify this to, e.g., a firm's pro bono committee, as a valid pro bono representation.
Sixth, if ICANN were not taking the role they are taking, it would be extremely difficult to identify the "client" in this situation. The "community" is a collection of sectors, mostly represented by various ICANN-created structures, which in turn have members of widely varying types (individuals, corporations, sovereigns, non-profits, IGOs, partnerships, etc.). This would also make it extremely difficult to enter into a formal counseling relationship with the "community."
Seventh, this is a sensitive, high-profile, transformative set of actions we are involved in, which is subject to an extraordinary amount of scrutiny, not least that of the NTIA and the US Congress. That eliminates any possibility of providing informal, off-the-cuff, reasonably well-informed but not quite expert, "non-advice" advice -- which might happen in a more obscure exercise. There's simply too much at stake.
Finally, I would say that a number of attorneys involved in one or both of the WGs are in fact providing a significant amount of legal knowledge and experience to the WGs, helping to frame issues, whether in terms of general leadership (e.g., Thomas, Leon, Becky) or more specifically in a "lawyer-as-client" capacity -- working with outside counsel, tackling the more legalistic issues, providing as much legal background and knowledge as possible without providing the type of formal legal advice that would tend to create an attorney-client relationship, etc. So I do think that many lawyers in the community are giving greatly of themselves in this process, even though they cannot and would not be able to formally be engaged by the community as its "counsel of record."
In sum, it might be a nice thought in theory, but it is no way a practical possibility.
Greg
On Sat, Jul 4, 2015 at 3:08 AM, CW Lists <lists@christopherwilkinson.eu <mailto:lists@christopherwilkinson.eu>> wrote:
Good morning:
I had decided not to enter this debate. But I am bound to say that the thought had occurred to me at the time, that there were more than enough qualified lawyers in this community that they could perfectly well have counselled … themselves.
CW
On 04 Jul 2015, at 08:41, Greg Shatan <gregshatanipc@gmail.com <mailto:gregshatanipc@gmail.com>> wrote:
Wolfgang,
To your first point, the billing rates were clearly stated in the law firms' engagement letters.
To your second point, I'm sure we could all think of other projects and goals where the money could have been "better spent." You've stated yours. But that is not the proper test. This was and continues to be money we need to spend to achieve the goals we have set. Under different circumstances, perhaps it would be a different amount (or maybe none at all). But it was strongly felt at the outset that the group needed to have independent counsel. Clearly that counsel needed to have recognized expertise in the appropriate legal areas. As such, I believe we made excellent choices and have been very well represented.
As to your "better spent" test, I just had to have $4000.00 worth of emergency dental work done. This money definitely could have been "better spent" on a nice vacation, redecorating our living room or on donations to my favored charitable causes. But I had no choice, other than to choose which dentist and endodontist I went to, and I wasn't going to cut corners -- the dental work was a necessity. Similarly, the legal work we are getting is a necessity and whether we would have preferred to spend the money elsewhere is not merely irrelevant, it is an incorrect and inappropriate proposition. Many of us are investing vast quantities of time that could be "better spent" elsewhere as well, but we are willing (grudgingly sometimes) to spend the time it takes to get it right, because we believe it needs to be done. This is the appropriate measure, whether it comes to our time or counsels' time. If we believe in this project, we have to invest in it, and do what it takes to succeed.
Of course, this investment has to be managed wisely and cost-effectively, and by and large, I believe the CCWG has done that reasonably well -- not perfectly, but reasonably well and with "course corrections" along the way intended to improve that management. It's certainly fair to ask, as Robin has done, for a better understanding of that management as we go along. But asserting that the money could have been "better spent" elsewhere sets up a false test that we should not use to evaluate this important aspect of our work. Instead, we need to focus on whether the money was "well spent" on these critical legal services. If you have reason to believe it was not, that could be useful to know. That would at least be the right discussion to have.
Greg
On Sat, Jul 4, 2015 at 1:13 AM, "Kleinwächter, Wolfgang" <wolfgang.kleinwaechter@medienkomm.uni-halle.de <mailto:wolfgang.kleinwaechter@medienkomm.uni-halle.de>> wrote:
HI,
and please if you ask outside lawyers, ask for the price tag in advance. Some of the money spend fo lawyers could have been spend better to suppport and enable Internet user and non-commercial groups in developing countries.
Wolfgang
-----Ursprüngliche Nachricht----- Von: accountability-cross-community-bounces@icann.org <mailto:accountability-cross-community-bounces@icann.org> im Auftrag von Robin Gross Gesendet: Fr 03.07.2015 14:57 An: accountability-cross-community@icann.org <mailto:accountability-cross-community@icann.org> Community Betreff: [CCWG-ACCT] Who is managing the lawyers and what have they beenasked to do?
After the legal sub-team was disbanded, I haven't been able to follow what communications are happening with CCWG and the independent lawyers we retained.
I understand the lawyers are currently "working on the various models" and will present something to us regarding that work soon. However, *what exactly* have the lawyers been asked to do and *who* asked them? If there are written instructions, may the group please see them? Who is now taking on the role of managing the outside attorneys for this group, including providing instructions and certifying legal work?
Sorry, but I'm really trying to understand what is happening, and there doesn't seem to be much information in the public on this (or if there is, I can't find it). Thanks for any information anyone can provide.
Best, Robin
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A better world through a better Internet
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This is very helpful James. Thank you. Carlos Raúl Gutiérrez +506 8837 7176 Skype: carlos.raulg On 6 Jul 2015, at 11:07, James Gannon wrote:
I listened to the last co-chairs lawyers’ call at; https://community.icann.org/pages/viewpage.action?pageId=53782602 (I’m a glutton for punishment)
It was a short call and I’ll make a particular note that Leon and Mathieu made a point of not making any decisions on behalf of the whole group and made it clear anything requiring a decision must be made by the overall CCWG, so I was happy with that side of things myself, most of my own fears about not having a sub-group are somewhat assuaged. So my paraphrasing and overview is:
· Lawyers working hard on the models for us collaboratively between the two firms since BA
· Lawyers are prepping a presentation to give to us ASAP before Paris if possible, that presentation will take the majority of a call, it can’t be done quickly, they need about 45mins uninterrupted to go through the presentation and then would likely need Q&A time after they present.
· Some small wording/clarifications to come back to the CCWG to make sure everyone’s on the same page
· Everyone feels Paris will be an important time for the models, lawyers will be ready for a grilling on the details of the models from us to flesh out any of our concerns/questions
Note that the above is all my very condensed overview of the conversations. It seemed like a productive call to me.
-James
From: accountability-cross-community-bounces@icann.org [mailto:accountability-cross-community-bounces@icann.org] On Behalf Of Greg Shatan Sent: Monday, July 06, 2015 5:33 AM To: Carlos Raul Cc: accountability-cross-community@icann.org Subject: Re: [CCWG-ACCT] Who is managing the lawyers and what have they beenasked to do?
Carlos,
As the legal sub-team was disbanded, your guess is as good as mine.....
Greg
On Mon, Jul 6, 2015 at 12:27 AM, Carlos Raul <carlosraulg@gmail.com<mailto:carlosraulg@gmail.com>> wrote: Thank you Greg!
It makes a lot of sense and I guess those are all good reasons as we hired them in the first place. What are the next steps now? What happened in the recent call?
Best regards
Carlos Raúl Gutiérrez +506 8837 7176<tel:%2B506%208837%207176> Skype carlos.raulg _________ Apartado 1571-1000 COSTA RICA
On Mon, Jul 6, 2015 at 12:02 AM, Greg Shatan <gregshatanipc@gmail.com<mailto:gregshatanipc@gmail.com>> wrote: Chris,
That was tried to some extent, at least in the CWG.
There are several substantial problems with that approach.
First, lawyers are not fungible. The particular legal skills, background and experience required for the issues before both WGs are fairly specific, and in some cases, very specific. The primary core competency needed here is corporate governance. While a number of lawyers in the community have a reasonable working knowledge of the area, at least in their home jurisdictions, I don't believe there are any who would say that this is their primary focus and expertise -- at least none who identified themselves to either WG. The second core competency required, especially in the CCWG, is non-profit law. Again there are a number of lawyers with a decent working knowledge of this fairly broad field, but not as a primary focus. There may be a couple of lawyers in the community who would claim this fairly broad field as a primary focus and expertise -- but none who became involved with either WG. This then becomes further narrowed by jurisdiction. Since ICANN is a California non-profit corporation, US corporate governance and non-profit experience is more relevant than experience from other jurisdictions, and California law corporate governance and non-profit experience is more relevant than that from other US jurisdictions. In my experience, the more a US lawyer focuses on a particular substantive area, the greater their knowledge of and comfort with state law issues in US state jurisdictions other than their own (e.g., someone who spend a majority of their time working in corporate governance will have a greater knowledge of the law, issues, approaches and trends outside their primary state of practice, while someone who spends a relatively small amount of time in the area will tend to feel less comfortable outside their home jurisdiction). (An exception is that many US lawyers have specific knowledge of certain Delaware corporate law issues, because Delaware often serves as the state of incorporation for entities operating elsewhere.)
Second, lawyers in the community will seldom be seen as neutral advisors, no matter how hard they try. They will tend to be seen as working from their point of view or stakeholder group or "special interest" or desired outcome, even if they are trying to be even-handed. Over the course of time, this balancing act would tend to become more untenable.
Third, the amount of time it would take to provide truly definitive legal advice (research, careful drafting, discussions with relevant "clients", etc.) would be prohibitive, even compared to the substantial amount of time it takes to provide reasonably well-informed and competent legal-based viewpoints in the course of either WG's work.
Fourth, in order to formally counsel the community, the lawyer or lawyers in question would have to enter into a formal attorney-client relationship. Under US law, an attorney-client relationship may inadvertently be created by the attorney's actions, so attorneys try to be careful about not providing formal legal advice without a formal engagement (sometimes providing an explicit "caveat" if they feel they might be getting too close to providing legal advice). If the attorney is employed by a corporation, they would likely be unable to take on such a representation due to the terms of their employment, and that is before getting to an exploration of conflict of interest issues. If the attorney is employed by a firm, the firm would have to sign off on the representation, again dealing with potential conflict issues.
Fifth, even if the above issues were all somehow resolved, it would be highly unlikely that any such attorney would provide substantial amounts of advice, written memos, counseling, etc. on a pro bono (unpaid) basis, especially given the time-consuming nature of the work. Pro bono advice and representation is generally accorded to individuals and entities that could not otherwise be able to pay for it. That is clearly not the case here, at least with ICANN taking financial responsibility. It would likely be very difficult to justify this to, e.g., a firm's pro bono committee, as a valid pro bono representation.
Sixth, if ICANN were not taking the role they are taking, it would be extremely difficult to identify the "client" in this situation. The "community" is a collection of sectors, mostly represented by various ICANN-created structures, which in turn have members of widely varying types (individuals, corporations, sovereigns, non-profits, IGOs, partnerships, etc.). This would also make it extremely difficult to enter into a formal counseling relationship with the "community."
Seventh, this is a sensitive, high-profile, transformative set of actions we are involved in, which is subject to an extraordinary amount of scrutiny, not least that of the NTIA and the US Congress. That eliminates any possibility of providing informal, off-the-cuff, reasonably well-informed but not quite expert, "non-advice" advice -- which might happen in a more obscure exercise. There's simply too much at stake.
Finally, I would say that a number of attorneys involved in one or both of the WGs are in fact providing a significant amount of legal knowledge and experience to the WGs, helping to frame issues, whether in terms of general leadership (e.g., Thomas, Leon, Becky) or more specifically in a "lawyer-as-client" capacity -- working with outside counsel, tackling the more legalistic issues, providing as much legal background and knowledge as possible without providing the type of formal legal advice that would tend to create an attorney-client relationship, etc. So I do think that many lawyers in the community are giving greatly of themselves in this process, even though they cannot and would not be able to formally be engaged by the community as its "counsel of record."
In sum, it might be a nice thought in theory, but it is no way a practical possibility.
Greg
On Sat, Jul 4, 2015 at 3:08 AM, CW Lists <lists@christopherwilkinson.eu<mailto:lists@christopherwilkinson.eu>> wrote: Good morning:
I had decided not to enter this debate. But I am bound to say that the thought had occurred to me at the time, that there were more than enough qualified lawyers in this community that they could perfectly well have counselled … themselves.
CW
On 04 Jul 2015, at 08:41, Greg Shatan <gregshatanipc@gmail.com<mailto:gregshatanipc@gmail.com>> wrote:
Wolfgang,
To your first point, the billing rates were clearly stated in the law firms' engagement letters.
To your second point, I'm sure we could all think of other projects and goals where the money could have been "better spent." You've stated yours. But that is not the proper test. This was and continues to be money we need to spend to achieve the goals we have set. Under different circumstances, perhaps it would be a different amount (or maybe none at all). But it was strongly felt at the outset that the group needed to have independent counsel. Clearly that counsel needed to have recognized expertise in the appropriate legal areas. As such, I believe we made excellent choices and have been very well represented.
As to your "better spent" test, I just had to have $4000.00 worth of emergency dental work done. This money definitely could have been "better spent" on a nice vacation, redecorating our living room or on donations to my favored charitable causes. But I had no choice, other than to choose which dentist and endodontist I went to, and I wasn't going to cut corners -- the dental work was a necessity. Similarly, the legal work we are getting is a necessity and whether we would have preferred to spend the money elsewhere is not merely irrelevant, it is an incorrect and inappropriate proposition. Many of us are investing vast quantities of time that could be "better spent" elsewhere as well, but we are willing (grudgingly sometimes) to spend the time it takes to get it right, because we believe it needs to be done. This is the appropriate measure, whether it comes to our time or counsels' time. If we believe in this project, we have to invest in it, and do what it takes to succeed.
Of course, this investment has to be managed wisely and cost-effectively, and by and large, I believe the CCWG has done that reasonably well -- not perfectly, but reasonably well and with "course corrections" along the way intended to improve that management. It's certainly fair to ask, as Robin has done, for a better understanding of that management as we go along. But asserting that the money could have been "better spent" elsewhere sets up a false test that we should not use to evaluate this important aspect of our work. Instead, we need to focus on whether the money was "well spent" on these critical legal services. If you have reason to believe it was not, that could be useful to know. That would at least be the right discussion to have.
Greg
On Sat, Jul 4, 2015 at 1:13 AM, "Kleinwächter, Wolfgang" <wolfgang.kleinwaechter@medienkomm.uni-halle.de<mailto:wolfgang.kleinwaechter@medienkomm.uni-halle.de>> wrote: HI,
and please if you ask outside lawyers, ask for the price tag in advance. Some of the money spend fo lawyers could have been spend better to suppport and enable Internet user and non-commercial groups in developing countries.
Wolfgang
-----Ursprüngliche Nachricht----- Von: accountability-cross-community-bounces@icann.org<mailto:accountability-cross-community-bounces@icann.org> im Auftrag von Robin Gross Gesendet: Fr 03.07.2015 14:57 An: accountability-cross-community@icann.org<mailto:accountability-cross-community@icann.org> Community Betreff: [CCWG-ACCT] Who is managing the lawyers and what have they beenasked to do?
After the legal sub-team was disbanded, I haven't been able to follow what communications are happening with CCWG and the independent lawyers we retained.
I understand the lawyers are currently "working on the various models" and will present something to us regarding that work soon. However, *what exactly* have the lawyers been asked to do and *who* asked them? If there are written instructions, may the group please see them? Who is now taking on the role of managing the outside attorneys for this group, including providing instructions and certifying legal work?
Sorry, but I'm really trying to understand what is happening, and there doesn't seem to be much information in the public on this (or if there is, I can't find it). Thanks for any information anyone can provide.
Best, Robin _______________________________________________ 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
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Why did they disband…..? Carlos Raúl Gutiérrez +506 8837 7176 Skype: carlos.raulg On 6 Jul 2015, at 6:32, Greg Shatan wrote:
Carlos,
As the legal sub-team was disbanded, your guess is as good as mine.....
Greg
On Mon, Jul 6, 2015 at 12:27 AM, Carlos Raul <carlosraulg@gmail.com> wrote:
Thank you Greg!
It makes a lot of sense and I guess those are all good reasons as we hired them in the first place. What are the next steps now? What happened in the recent call?
Best regards
*Carlos Raúl Gutiérrez* +506 8837 7176 Skype carlos.raulg _________ Apartado 1571-1000 *COSTA RICA*
On Mon, Jul 6, 2015 at 12:02 AM, Greg Shatan <gregshatanipc@gmail.com> wrote:
Chris,
That was tried to some extent, at least in the CWG.
There are several substantial problems with that approach.
First, lawyers are not fungible. The particular legal skills, background and experience required for the issues before both WGs are fairly specific, and in some cases, very specific. The primary core competency needed here is corporate governance. While a number of lawyers in the community have a reasonable working knowledge of the area, at least in their home jurisdictions, I don't believe there are any who would say that this is their primary focus and expertise -- at least none who identified themselves to either WG. The second core competency required, especially in the CCWG, is non-profit law. Again there are a number of lawyers with a decent working knowledge of this fairly broad field, but not as a primary focus. There may be a couple of lawyers in the community who would claim this fairly broad field as a primary focus and expertise -- but none who became involved with either WG. This then becomes further narrowed by jurisdiction. Since ICANN is a California non-profit corporation, US corporate governance and non-profit experience is more relevant than experience from other jurisdictions, and California law corporate governance and non-profit experience is more relevant than that from other US jurisdictions. In my experience, the more a US lawyer focuses on a particular substantive area, the greater their knowledge of and comfort with state law issues in US state jurisdictions other than their own (e.g., someone who spend a majority of their time working in corporate governance will have a greater knowledge of the law, issues, approaches and trends outside their primary state of practice, while someone who spends a relatively small amount of time in the area will tend to feel less comfortable outside their home jurisdiction). (An exception is that many US lawyers have specific knowledge of certain Delaware corporate law issues, because Delaware often serves as the state of incorporation for entities operating elsewhere.)
Second, lawyers in the community will seldom be seen as neutral advisors, no matter how hard they try. They will tend to be seen as working from their point of view or stakeholder group or "special interest" or desired outcome, even if they are trying to be even-handed. Over the course of time, this balancing act would tend to become more untenable.
Third, the amount of time it would take to provide truly definitive legal advice (research, careful drafting, discussions with relevant "clients", etc.) would be prohibitive, even compared to the substantial amount of time it takes to provide reasonably well-informed and competent legal-based viewpoints in the course of either WG's work.
Fourth, in order to formally counsel the community, the lawyer or lawyers in question would have to enter into a formal attorney-client relationship. Under US law, an attorney-client relationship may inadvertently be created by the attorney's actions, so attorneys try to be careful about not providing formal legal advice without a formal engagement (sometimes providing an explicit "caveat" if they feel they might be getting too close to providing legal advice). If the attorney is employed by a corporation, they would likely be unable to take on such a representation due to the terms of their employment, and that is before getting to an exploration of conflict of interest issues. If the attorney is employed by a firm, the firm would have to sign off on the representation, again dealing with potential conflict issues.
Fifth, even if the above issues were all somehow resolved, it would be highly unlikely that any such attorney would provide substantial amounts of advice, written memos, counseling, etc. on a pro bono (unpaid) basis, especially given the time-consuming nature of the work. Pro bono advice and representation is generally accorded to individuals and entities that could not otherwise be able to pay for it. That is clearly not the case here, at least with ICANN taking financial responsibility. It would likely be very difficult to justify this to, e.g., a firm's pro bono committee, as a valid pro bono representation.
Sixth, if ICANN were not taking the role they are taking, it would be extremely difficult to identify the "client" in this situation. The "community" is a collection of sectors, mostly represented by various ICANN-created structures, which in turn have members of widely varying types (individuals, corporations, sovereigns, non-profits, IGOs, partnerships, etc.). This would also make it extremely difficult to enter into a formal counseling relationship with the "community."
Seventh, this is a sensitive, high-profile, transformative set of actions we are involved in, which is subject to an extraordinary amount of scrutiny, not least that of the NTIA and the US Congress. That eliminates any possibility of providing informal, off-the-cuff, reasonably well-informed but not quite expert, "non-advice" advice -- which might happen in a more obscure exercise. There's simply too much at stake.
Finally, I would say that a number of attorneys involved in one or both of the WGs are in fact providing a significant amount of legal knowledge and experience to the WGs, helping to frame issues, whether in terms of general leadership (e.g., Thomas, Leon, Becky) or more specifically in a "lawyer-as-client" capacity -- working with outside counsel, tackling the more legalistic issues, providing as much legal background and knowledge as possible without providing the type of formal legal advice that would tend to create an attorney-client relationship, etc. So I do think that many lawyers in the community are giving greatly of themselves in this process, even though they cannot and would not be able to formally be engaged by the community as its "counsel of record."
In sum, it might be a nice thought in theory, but it is no way a practical possibility.
Greg
On Sat, Jul 4, 2015 at 3:08 AM, CW Lists <lists@christopherwilkinson.eu> wrote:
Good morning:
I had decided not to enter this debate. But I am bound to say that the thought had occurred to me at the time, that there were more than enough qualified lawyers in this community that they could perfectly well have counselled … themselves.
CW
On 04 Jul 2015, at 08:41, Greg Shatan <gregshatanipc@gmail.com> wrote:
Wolfgang,
To your first point, the billing rates were clearly stated in the law firms' engagement letters.
To your second point, I'm sure we could all think of other projects and goals where the money could have been "better spent." You've stated yours. But that is not the proper test. This was and continues to be money we need to spend to achieve the goals we have set. Under different circumstances, perhaps it would be a different amount (or maybe none at all). But it was strongly felt at the outset that the group needed to have independent counsel. Clearly that counsel needed to have recognized expertise in the appropriate legal areas. As such, I believe we made excellent choices and have been very well represented.
As to your "better spent" test, I just had to have $4000.00 worth of emergency dental work done. This money definitely could have been "better spent" on a nice vacation, redecorating our living room or on donations to my favored charitable causes. But I had no choice, other than to choose which dentist and endodontist I went to, and I wasn't going to cut corners -- the dental work was a necessity. Similarly, the legal work we are getting is a necessity and whether we would have preferred to spend the money elsewhere is not merely irrelevant, it is an incorrect and inappropriate proposition. Many of us are investing vast quantities of time that could be "better spent" elsewhere as well, but we are willing (grudgingly sometimes) to spend the time it takes to get it right, because we believe it needs to be done. This is the appropriate measure, whether it comes to our time or counsels' time. If we believe in this project, we have to invest in it, and do what it takes to succeed.
Of course, this investment has to be managed wisely and cost-effectively, and by and large, I believe the CCWG has done that reasonably well -- not perfectly, but reasonably well and with "course corrections" along the way intended to improve that management. It's certainly fair to ask, as Robin has done, for a better understanding of that management as we go along. But asserting that the money could have been "better spent" elsewhere sets up a false test that we should not use to evaluate this important aspect of our work. Instead, we need to focus on whether the money was "well spent" on these critical legal services. If you have reason to believe it was not, that could be useful to know. That would at least be the right discussion to have.
Greg
On Sat, Jul 4, 2015 at 1:13 AM, "Kleinwächter, Wolfgang" < wolfgang.kleinwaechter@medienkomm.uni-halle.de> wrote:
HI,
and please if you ask outside lawyers, ask for the price tag in advance. Some of the money spend fo lawyers could have been spend better to suppport and enable Internet user and non-commercial groups in developing countries.
Wolfgang
-----Ursprüngliche Nachricht----- Von: accountability-cross-community-bounces@icann.org im Auftrag von Robin Gross Gesendet: Fr 03.07.2015 14:57 An: accountability-cross-community@icann.org Community Betreff: [CCWG-ACCT] Who is managing the lawyers and what have they beenasked to do?
After the legal sub-team was disbanded, I haven't been able to follow what communications are happening with CCWG and the independent lawyers we retained.
I understand the lawyers are currently "working on the various models" and will present something to us regarding that work soon. However, *what exactly* have the lawyers been asked to do and *who* asked them? If there are written instructions, may the group please see them? Who is now taking on the role of managing the outside attorneys for this group, including providing instructions and certifying legal work?
Sorry, but I'm really trying to understand what is happening, and there doesn't seem to be much information in the public on this (or if there is, I can't find it). Thanks for any information anyone can provide.
Best, Robin
_______________________________________________ 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
Carlos, It did not disband. It was disbanded. I believe it was a decision of the co-chairs. Greg On Mon, Jul 6, 2015 at 9:21 AM, Carlos Raúl Gutiérrez <carlosraulg@gmail.com
wrote:
Why did they disband…..?
Carlos Raúl Gutiérrez +506 8837 7176 Skype: carlos.raulg On 6 Jul 2015, at 6:32, Greg Shatan wrote:
Carlos,
As the legal sub-team was disbanded, your guess is as good as mine.....
Greg
On Mon, Jul 6, 2015 at 12:27 AM, Carlos Raul <carlosraulg@gmail.com> wrote:
Thank you Greg!
It makes a lot of sense and I guess those are all good reasons as we hired them in the first place. What are the next steps now? What happened in the recent call?
Best regards
*Carlos Raúl Gutiérrez* +506 8837 7176 Skype carlos.raulg _________ Apartado 1571-1000 *COSTA RICA*
On Mon, Jul 6, 2015 at 12:02 AM, Greg Shatan <gregshatanipc@gmail.com> wrote:
Chris,
That was tried to some extent, at least in the CWG.
There are several substantial problems with that approach.
First, lawyers are not fungible. The particular legal skills, background and experience required for the issues before both WGs are fairly specific, and in some cases, very specific. The primary core competency needed here is corporate governance. While a number of lawyers in the community have a reasonable working knowledge of the area, at least in their home jurisdictions, I don't believe there are any who would say that this is their primary focus and expertise -- at least none who identified themselves to either WG. The second core competency required, especially in the CCWG, is non-profit law. Again there are a number of lawyers with a decent working knowledge of this fairly broad field, but not as a primary focus. There may be a couple of lawyers in the community who would claim this fairly broad field as a primary focus and expertise -- but none who became involved with either WG. This then becomes further narrowed by jurisdiction. Since ICANN is a California non-profit corporation, US corporate governance and non-profit experience is more relevant than experience from other jurisdictions, and California law corporate governance and non-profit experience is more relevant than that from other US jurisdictions. In my experience, the more a US lawyer focuses on a particular substantive area, the greater their knowledge of and comfort with state law issues in US state jurisdictions other than their own (e.g., someone who spend a majority of their time working in corporate governance will have a greater knowledge of the law, issues, approaches and trends outside their primary state of practice, while someone who spends a relatively small amount of time in the area will tend to feel less comfortable outside their home jurisdiction). (An exception is that many US lawyers have specific knowledge of certain Delaware corporate law issues, because Delaware often serves as the state of incorporation for entities operating elsewhere.)
Second, lawyers in the community will seldom be seen as neutral advisors, no matter how hard they try. They will tend to be seen as working from their point of view or stakeholder group or "special interest" or desired outcome, even if they are trying to be even-handed. Over the course of time, this balancing act would tend to become more untenable.
Third, the amount of time it would take to provide truly definitive legal advice (research, careful drafting, discussions with relevant "clients", etc.) would be prohibitive, even compared to the substantial amount of time it takes to provide reasonably well-informed and competent legal-based viewpoints in the course of either WG's work.
Fourth, in order to formally counsel the community, the lawyer or lawyers in question would have to enter into a formal attorney-client relationship. Under US law, an attorney-client relationship may inadvertently be created by the attorney's actions, so attorneys try to be careful about not providing formal legal advice without a formal engagement (sometimes providing an explicit "caveat" if they feel they might be getting too close to providing legal advice). If the attorney is employed by a corporation, they would likely be unable to take on such a representation due to the terms of their employment, and that is before getting to an exploration of conflict of interest issues. If the attorney is employed by a firm, the firm would have to sign off on the representation, again dealing with potential conflict issues.
Fifth, even if the above issues were all somehow resolved, it would be highly unlikely that any such attorney would provide substantial amounts of advice, written memos, counseling, etc. on a pro bono (unpaid) basis, especially given the time-consuming nature of the work. Pro bono advice and representation is generally accorded to individuals and entities that could not otherwise be able to pay for it. That is clearly not the case here, at least with ICANN taking financial responsibility. It would likely be very difficult to justify this to, e.g., a firm's pro bono committee, as a valid pro bono representation.
Sixth, if ICANN were not taking the role they are taking, it would be extremely difficult to identify the "client" in this situation. The "community" is a collection of sectors, mostly represented by various ICANN-created structures, which in turn have members of widely varying types (individuals, corporations, sovereigns, non-profits, IGOs, partnerships, etc.). This would also make it extremely difficult to enter into a formal counseling relationship with the "community."
Seventh, this is a sensitive, high-profile, transformative set of actions we are involved in, which is subject to an extraordinary amount of scrutiny, not least that of the NTIA and the US Congress. That eliminates any possibility of providing informal, off-the-cuff, reasonably well-informed but not quite expert, "non-advice" advice -- which might happen in a more obscure exercise. There's simply too much at stake.
Finally, I would say that a number of attorneys involved in one or both of the WGs are in fact providing a significant amount of legal knowledge and experience to the WGs, helping to frame issues, whether in terms of general leadership (e.g., Thomas, Leon, Becky) or more specifically in a "lawyer-as-client" capacity -- working with outside counsel, tackling the more legalistic issues, providing as much legal background and knowledge as possible without providing the type of formal legal advice that would tend to create an attorney-client relationship, etc. So I do think that many lawyers in the community are giving greatly of themselves in this process, even though they cannot and would not be able to formally be engaged by the community as its "counsel of record."
In sum, it might be a nice thought in theory, but it is no way a practical possibility.
Greg
On Sat, Jul 4, 2015 at 3:08 AM, CW Lists <lists@christopherwilkinson.eu
wrote:
Good morning:
I had decided not to enter this debate. But I am bound to say that the thought had occurred to me at the time, that there were more than enough qualified lawyers in this community that they could perfectly well have counselled … themselves.
CW
On 04 Jul 2015, at 08:41, Greg Shatan <gregshatanipc@gmail.com> wrote:
Wolfgang,
To your first point, the billing rates were clearly stated in the law firms' engagement letters.
To your second point, I'm sure we could all think of other projects and goals where the money could have been "better spent." You've stated yours. But that is not the proper test. This was and continues to be money we need to spend to achieve the goals we have set. Under different circumstances, perhaps it would be a different amount (or maybe none at all). But it was strongly felt at the outset that the group needed to have independent counsel. Clearly that counsel needed to have recognized expertise in the appropriate legal areas. As such, I believe we made excellent choices and have been very well represented.
As to your "better spent" test, I just had to have $4000.00 worth of emergency dental work done. This money definitely could have been "better spent" on a nice vacation, redecorating our living room or on donations to my favored charitable causes. But I had no choice, other than to choose which dentist and endodontist I went to, and I wasn't going to cut corners -- the dental work was a necessity. Similarly, the legal work we are getting is a necessity and whether we would have preferred to spend the money elsewhere is not merely irrelevant, it is an incorrect and inappropriate proposition. Many of us are investing vast quantities of time that could be "better spent" elsewhere as well, but we are willing (grudgingly sometimes) to spend the time it takes to get it right, because we believe it needs to be done. This is the appropriate measure, whether it comes to our time or counsels' time. If we believe in this project, we have to invest in it, and do what it takes to succeed.
Of course, this investment has to be managed wisely and cost-effectively, and by and large, I believe the CCWG has done that reasonably well -- not perfectly, but reasonably well and with "course corrections" along the way intended to improve that management. It's certainly fair to ask, as Robin has done, for a better understanding of that management as we go along. But asserting that the money could have been "better spent" elsewhere sets up a false test that we should not use to evaluate this important aspect of our work. Instead, we need to focus on whether the money was "well spent" on these critical legal services. If you have reason to believe it was not, that could be useful to know. That would at least be the right discussion to have.
Greg
On Sat, Jul 4, 2015 at 1:13 AM, "Kleinwächter, Wolfgang" < wolfgang.kleinwaechter@medienkomm.uni-halle.de> wrote:
HI,
and please if you ask outside lawyers, ask for the price tag in advance. Some of the money spend fo lawyers could have been spend better to suppport and enable Internet user and non-commercial groups in developing countries.
Wolfgang
-----Ursprüngliche Nachricht----- Von: accountability-cross-community-bounces@icann.org im Auftrag von Robin Gross Gesendet: Fr 03.07.2015 14:57 An: accountability-cross-community@icann.org Community Betreff: [CCWG-ACCT] Who is managing the lawyers and what have they beenasked to do?
After the legal sub-team was disbanded, I haven't been able to follow what communications are happening with CCWG and the independent lawyers we retained.
I understand the lawyers are currently "working on the various models" and will present something to us regarding that work soon. However, *what exactly* have the lawyers been asked to do and *who* asked them? If there are written instructions, may the group please see them? Who is now taking on the role of managing the outside attorneys for this group, including providing instructions and certifying legal work?
Sorry, but I'm really trying to understand what is happening, and there doesn't seem to be much information in the public on this (or if there is, I can't find it). Thanks for any information anyone can provide.
Best, Robin
_______________________________________________ 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
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_______________________________________________
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participants (21)
-
Avri Doria -
Burr, Becky -
Carlos Raul -
Carlos Raúl Gutiérrez
-
Chartier, Mike S -
Chris Disspain -
Dr Eberhard Lisse -
Dr Eberhard W Lisse
-
Dr Eberhard W Lisse -
Edward Morris -
George Sadowsky -
Greg Shatan -
James Gannon -
Jonathan Zuck -
Jordan Carter -
Mathieu Weill -
Matthew Shears -
Nigel Roberts -
Paul Rosenzweig -
Robin Gross -
Seun Ojedeji