Legal Committee and WS2 budget - new proposal
Dear Colleagues, Based on the feedback received during last week's call, as well as on the robust discussion on the list, we are suggesting a revised approach for the Legal Committee : - Composition based on previous Legal executive team - Co-chairs remain budget owners, working with support from the PCST - Legal committee may direct requests to external firms, on a case by case assessment taking into account costs, skills as well as potential requirement for "independent" advice. We believe this strikes a good balance between the need to manage costs efficiently and responsibly, and the ability for our group to request independent advice when needed. Depending on the feedbacks, we will report on our progress to the Board Finance Committee and SO/AC leaders during a call that has been arranged at the BFC's request on Monday 25 July. Best regards, Mathieu Weill Co-chair
Hello Mathieu, The attached document indicated that decision will be handled based on case by case basis which is fine. However I think sub-bullet 1 of item 2 on page 6 is not explicit about decision making process. I like to suggest that when independent council is required, the legal committee should rather recommend (not decide on behalf) to the group as it should be the decision of the CCWG-ACT to make. Such recommendation should also include adequate rationale on why external council is preferred over ICANN legal staff. Regards Sent from my LG G4 Kindly excuse brevity and typos On 18 Jul 2016 5:10 p.m., "Mathieu Weill" <mathieu.weill@afnic.fr> wrote:
Dear Colleagues,
Based on the feedback received during last week’s call, as well as on the robust discussion on the list, we are suggesting a revised approach for the Legal Committee :
- Composition based on previous Legal executive team
- Co-chairs remain budget owners, working with support from the PCST
- Legal committee may direct requests to external firms, on a case by case assessment taking into account costs, skills as well as potential requirement for “independent” advice.
We believe this strikes a good balance between the need to manage costs efficiently and responsibly, and the ability for our group to request independent advice when needed.
Depending on the feedbacks, we will report on our progress to the Board Finance Committee and SO/AC leaders during a call that has been arranged at the BFC’s request on Monday 25 July.
Best regards,
Mathieu Weill
Co-chair
_______________________________________________ Accountability-Cross-Community mailing list Accountability-Cross-Community@icann.org https://mm.icann.org/mailman/listinfo/accountability-cross-community
With respect, I disagree. The question of whether or not to seek advice is a ministerial one that can and should be left to the good judgment of the co-chairs and the committee members. As we have seen in the last few days, the broader CCWG can get overwhelmed with disagreement on relatively inconsequential matters of process when for the most part our thinking and time are best devoted to substantive questions that require analysis and resolution Cheers Paul Paul Rosenzweig <mailto:paul.rosenzweig@redbranchconsulting.com> paul.rosenzweig@redbranchconsulting.com O: +1 (202) 547-0660 M: +1 (202) 329-9650 VOIP: +1 (202) 738-1739 <http://www.redbranchconsulting.com/> www.redbranchconsulting.com My PGP Key: <http://redbranchconsulting.com/who-we-are/public-pgp-key/> http://redbranchconsulting.com/who-we-are/public-pgp-key/ From: accountability-cross-community-bounces@icann.org [mailto:accountability-cross-community-bounces@icann.org] On Behalf Of Seun Ojedeji Sent: Monday, July 18, 2016 12:32 PM To: Mathieu Weill <mathieu.weill@afnic.fr> Cc: ACCT-Staff <acct-staff@icann.org>; accountability-cross-community@icann.org Subject: Re: [CCWG-ACCT] Legal Committee and WS2 budget - new proposal Hello Mathieu, The attached document indicated that decision will be handled based on case by case basis which is fine. However I think sub-bullet 1 of item 2 on page 6 is not explicit about decision making process. I like to suggest that when independent council is required, the legal committee should rather recommend (not decide on behalf) to the group as it should be the decision of the CCWG-ACT to make. Such recommendation should also include adequate rationale on why external council is preferred over ICANN legal staff. Regards Sent from my LG G4 Kindly excuse brevity and typos On 18 Jul 2016 5:10 p.m., "Mathieu Weill" <mathieu.weill@afnic.fr <mailto:mathieu.weill@afnic.fr> > wrote: Dear Colleagues, Based on the feedback received during last week’s call, as well as on the robust discussion on the list, we are suggesting a revised approach for the Legal Committee : - Composition based on previous Legal executive team - Co-chairs remain budget owners, working with support from the PCST - Legal committee may direct requests to external firms, on a case by case assessment taking into account costs, skills as well as potential requirement for “independent” advice. We believe this strikes a good balance between the need to manage costs efficiently and responsibly, and the ability for our group to request independent advice when needed. Depending on the feedbacks, we will report on our progress to the Board Finance Committee and SO/AC leaders during a call that has been arranged at the BFC’s request on Monday 25 July. Best regards, Mathieu Weill Co-chair _______________________________________________ Accountability-Cross-Community mailing list Accountability-Cross-Community@icann.org <mailto:Accountability-Cross-Community@icann.org> https://mm.icann.org/mailman/listinfo/accountability-cross-community
I agree with Paul. We need a process that is workable and efficient. The last thing we need is a process that will repeat the quarrelsome and time-consuming exercise we just went through with even more administrative matters. Let’s try to stay focused on the substance of what we are here to do and not get sucked into opportunities for endless argument on administrative issues that we had set up this committee to deal with previously. Thanks, Robin
On Jul 18, 2016, at 10:15 AM, Paul Rosenzweig <paul.rosenzweig@redbranchconsulting.com> wrote:
With respect, I disagree. The question of whether or not to seek advice is a ministerial one that can and should be left to the good judgment of the co-chairs and the committee members. As we have seen in the last few days, the broader CCWG can get overwhelmed with disagreement on relatively inconsequential matters of process when for the most part our thinking and time are best devoted to substantive questions that require analysis and resolution
Cheers Paul
Paul Rosenzweig paul.rosenzweig@redbranchconsulting.com <mailto:paul.rosenzweig@redbranchconsulting.com> O: +1 (202) 547-0660 M: +1 (202) 329-9650 VOIP: +1 (202) 738-1739 www.redbranchconsulting.com <http://www.redbranchconsulting.com/> My PGP Key: http://redbranchconsulting.com/who-we-are/public-pgp-key/ <http://redbranchconsulting.com/who-we-are/public-pgp-key/>
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 18, 2016 12:32 PM To: Mathieu Weill <mathieu.weill@afnic.fr <mailto:mathieu.weill@afnic.fr>> Cc: ACCT-Staff <acct-staff@icann.org <mailto:acct-staff@icann.org>>; accountability-cross-community@icann.org <mailto:accountability-cross-community@icann.org> Subject: Re: [CCWG-ACCT] Legal Committee and WS2 budget - new proposal
Hello Mathieu,
The attached document indicated that decision will be handled based on case by case basis which is fine.
However I think sub-bullet 1 of item 2 on page 6 is not explicit about decision making process. I like to suggest that when independent council is required, the legal committee should rather recommend (not decide on behalf) to the group as it should be the decision of the CCWG-ACT to make. Such recommendation should also include adequate rationale on why external council is preferred over ICANN legal staff.
Regards
Sent from my LG G4 Kindly excuse brevity and typos
On 18 Jul 2016 5:10 p.m., "Mathieu Weill" <mathieu.weill@afnic.fr <mailto:mathieu.weill@afnic.fr>> wrote:
Dear Colleagues,
Based on the feedback received during last week’s call, as well as on the robust discussion on the list, we are suggesting a revised approach for the Legal Committee : - Composition based on previous Legal executive team
- Co-chairs remain budget owners, working with support from the PCST
- Legal committee may direct requests to external firms, on a case by case assessment taking into account costs, skills as well as potential requirement for “independent” advice.
We believe this strikes a good balance between the need to manage costs efficiently and responsibly, and the ability for our group to request independent advice when needed.
Depending on the feedbacks, we will report on our progress to the Board Finance Committee and SO/AC leaders during a call that has been arranged at the BFC’s request on Monday 25 July.
Best regards, Mathieu Weill Co-chair
_______________________________________________ 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://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 <https://mm.icann.org/mailman/listinfo/accountability-cross-community>
+ 1 On 18/07/2016 18:24, Robin Gross wrote:
I agree with Paul. We need a process that is workable and efficient. The last thing we need is a process that will repeat the quarrelsome and time-consuming exercise we just went through with even more administrative matters. Let’s try to stay focused on the substance of what we are here to do and not get sucked into opportunities for endless argument on administrative issues that we had set up this committee to deal with previously.
Thanks, Robin
On Jul 18, 2016, at 10:15 AM, Paul Rosenzweig <paul.rosenzweig@redbranchconsulting.com <mailto:paul.rosenzweig@redbranchconsulting.com>> wrote:
With respect, I disagree. The question of whether or not to seek advice is a ministerial one that can and should be left to the good judgment of the co-chairs and the committee members. As we have seen in the last few days, the broader CCWG can get overwhelmed with disagreement on relatively inconsequential matters of process when for the most part our thinking and time are best devoted to substantive questions that require analysis and resolution Cheers Paul Paul Rosenzweig paul.rosenzweig@redbranchconsulting.com <mailto:paul.rosenzweig@redbranchconsulting.com> O: +1 (202) 547-0660 M: +1 (202) 329-9650 VOIP: +1 (202) 738-1739 www.redbranchconsulting.com <http://www.redbranchconsulting.com/> My PGP Key:http://redbranchconsulting.com/who-we-are/public-pgp-key/__ *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 18, 2016 12:32 PM *To:*Mathieu Weill <mathieu.weill@afnic.fr <mailto:mathieu.weill@afnic.fr>> *Cc:*ACCT-Staff <acct-staff@icann.org <mailto:acct-staff@icann.org>>;accountability-cross-community@icann.org <mailto:accountability-cross-community@icann.org> *Subject:*Re: [CCWG-ACCT] Legal Committee and WS2 budget - new proposal
Hello Mathieu,
The attached document indicated that decision will be handled based on case by case basis which is fine.
However I think sub-bullet 1 of item 2 on page 6 is not explicit about decision making process. I like to suggest that when independent council is required, the legal committee should rather recommend (not decide on behalf) to the group as it should be the decision of the CCWG-ACT to make. Such recommendation should also include adequate rationale on why external council is preferred over ICANN legal staff.
Regards
Sent from my LG G4 Kindly excuse brevity and typos
On 18 Jul 2016 5:10 p.m., "Mathieu Weill" <mathieu.weill@afnic.fr <mailto:mathieu.weill@afnic.fr>> wrote:
Dear Colleagues, Based on the feedback received during last week’s call, as well as on the robust discussion on the list, we are suggesting a revised approach for the Legal Committee :
-Composition based on previous Legal executive team
-Co-chairs remain budget owners, working with support from the PCST
-Legal committee may direct requests to external firms, on a case by case assessment taking into account costs, skills as well as potential requirement for “independent” advice.
We believe this strikes a good balance between the need to manage costs efficiently and responsibly, and the ability for our group to request independent advice when needed. Depending on the feedbacks, we will report on our progress to the Board Finance Committee and SO/AC leaders during a call that has been arranged at the BFC’s request on Monday 25 July. Best regards, Mathieu Weill Co-chair
_______________________________________________ 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
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Robin Gross wrote:
Let’s try to stay focused on the substance of what we are here to do and not get sucked into opportunities for endless argument on administrative issues that we had set up this committee to deal with previously.
Couldn’t we do our work and let a semi-final draft up for legal revision? Do we have to work all along hand in hand with external lawyers? Enough external legal training for the tie being. Let´s hammer out a deal, and let the external lawyers come in later. Carlos R. Gutiérrez
Thanks, Robin
On Jul 18, 2016, at 10:15 AM, Paul Rosenzweig <paul.rosenzweig@redbranchconsulting.com> wrote:
With respect, I disagree. The question of whether or not to seek advice is a ministerial one that can and should be left to the good judgment of the co-chairs and the committee members. As we have seen in the last few days, the broader CCWG can get overwhelmed with disagreement on relatively inconsequential matters of process when for the most part our thinking and time are best devoted to substantive questions that require analysis and resolution
Cheers Paul
Paul Rosenzweig paul.rosenzweig@redbranchconsulting.com <mailto:paul.rosenzweig@redbranchconsulting.com> O: +1 (202) 547-0660 M: +1 (202) 329-9650 VOIP: +1 (202) 738-1739 www.redbranchconsulting.com <http://www.redbranchconsulting.com/> My PGP Key: http://redbranchconsulting.com/who-we-are/public-pgp-key/ <http://redbranchconsulting.com/who-we-are/public-pgp-key/>
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 18, 2016 12:32 PM To: Mathieu Weill <mathieu.weill@afnic.fr <mailto:mathieu.weill@afnic.fr>> Cc: ACCT-Staff <acct-staff@icann.org <mailto:acct-staff@icann.org>>; accountability-cross-community@icann.org <mailto:accountability-cross-community@icann.org> Subject: Re: [CCWG-ACCT] Legal Committee and WS2 budget - new proposal
Hello Mathieu,
The attached document indicated that decision will be handled based on case by case basis which is fine.
However I think sub-bullet 1 of item 2 on page 6 is not explicit about decision making process. I like to suggest that when independent council is required, the legal committee should rather recommend (not decide on behalf) to the group as it should be the decision of the CCWG-ACT to make. Such recommendation should also include adequate rationale on why external council is preferred over ICANN legal staff.
Regards
Sent from my LG G4 Kindly excuse brevity and typos
On 18 Jul 2016 5:10 p.m., "Mathieu Weill" <mathieu.weill@afnic.fr <mailto:mathieu.weill@afnic.fr>> wrote:
Dear Colleagues,
Based on the feedback received during last week’s call, as well as on the robust discussion on the list, we are suggesting a revised approach for the Legal Committee : - Composition based on previous Legal executive team
- Co-chairs remain budget owners, working with support from the PCST
- Legal committee may direct requests to external firms, on a case by case assessment taking into account costs, skills as well as potential requirement for “independent” advice.
We believe this strikes a good balance between the need to manage costs efficiently and responsibly, and the ability for our group to request independent advice when needed.
Depending on the feedbacks, we will report on our progress to the Board Finance Committee and SO/AC leaders during a call that has been arranged at the BFC’s request on Monday 25 July.
Best regards, Mathieu Weill Co-chair
_______________________________________________ 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://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 <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, That might work for some of the subgroups where the questions is largely one of fashioning ICANN policy without reference to external legal frameworks, but I don't think it will work for the subgroups where the questions are inherently legal (or those that fall in the middle between these two extremes). The calls for legal counsel will start in the subgroups, not in the legal committee. As I understand it, the legal committee will be responsible for identifying those requests that might not require legal advice (in order to avoid unnecessary legal spend), and for seeking to clarify those that appear vague or overbroad (and which would thus be more costly to deal with than they should be). In sum, we should deal with this on a case-by-case basis, without broad pronouncements. As such, you (or anyone) would be free to say in a subgroup that they don't see the need for legal advice at that time, and it would be up to the subgroup to make that initial determination Greg On Mon, Jul 18, 2016 at 2:26 PM, Carlos Raúl Gutiérrez G. <crg@isoc-cr.org> wrote:
Robin Gross wrote:
Let’s try to stay focused on the substance of what we are here to do and
not get sucked into opportunities for endless argument on administrative issues that we had set up this committee to deal with previously.
Couldn’t we do our work and let a semi-final draft up for legal revision? Do we have to work all along hand in hand with external lawyers? Enough external legal training for the tie being. Let´s hammer out a deal, and let the external lawyers come in later.
Carlos R. Gutiérrez
Thanks, Robin
On Jul 18, 2016, at 10:15 AM, Paul Rosenzweig <
paul.rosenzweig@redbranchconsulting.com> wrote:
With respect, I disagree. The question of whether or not to seek advice is a ministerial one that can and should be left to the good judgment of the co-chairs and the committee members. As we have seen in the last few days, the broader CCWG can get overwhelmed with disagreement on relatively inconsequential matters of process when for the most part our thinking and time are best devoted to substantive questions that require analysis and resolution
Cheers Paul
Paul Rosenzweig paul.rosenzweig@redbranchconsulting.com <mailto: paul.rosenzweig@redbranchconsulting.com> O: +1 (202) 547-0660 M: +1 (202) 329-9650 VOIP: +1 (202) 738-1739 www.redbranchconsulting.com <http://www.redbranchconsulting.com/> My PGP Key: http://redbranchconsulting.com/who-we-are/public-pgp-key/ < http://redbranchconsulting.com/who-we-are/public-pgp-key/>
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 18, 2016 12:32 PM To: Mathieu Weill <mathieu.weill@afnic.fr <mailto:mathieu.weill@afnic.fr
Cc: ACCT-Staff <acct-staff@icann.org <mailto:acct-staff@icann.org>>; accountability-cross-community@icann.org <mailto: accountability-cross-community@icann.org> Subject: Re: [CCWG-ACCT] Legal Committee and WS2 budget - new proposal
Hello Mathieu,
The attached document indicated that decision will be handled based on case by case basis which is fine.
However I think sub-bullet 1 of item 2 on page 6 is not explicit about decision making process. I like to suggest that when independent council is required, the legal committee should rather recommend (not decide on behalf) to the group as it should be the decision of the CCWG-ACT to make. Such recommendation should also include adequate rationale on why external council is preferred over ICANN legal staff.
Regards
Sent from my LG G4 Kindly excuse brevity and typos
On 18 Jul 2016 5:10 p.m., "Mathieu Weill" <mathieu.weill@afnic.fr <mailto:mathieu.weill@afnic.fr>> wrote:
Dear Colleagues,
Based on the feedback received during last week’s call, as well as on the robust discussion on the list, we are suggesting a revised approach for the Legal Committee : - Composition based on previous Legal executive team
- Co-chairs remain budget owners, working with support from the PCST
- Legal committee may direct requests to external firms, on a case by case assessment taking into account costs, skills as well as potential requirement for “independent” advice.
We believe this strikes a good balance between the need to manage costs efficiently and responsibly, and the ability for our group to request independent advice when needed.
Depending on the feedbacks, we will report on our progress to the Board Finance Committee and SO/AC leaders during a call that has been arranged at the BFC’s request on Monday 25 July.
Best regards, Mathieu Weill Co-chair
_______________________________________________ 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://mm.icann.org/mailman/listinfo/accountability-cross-community
_______________________________________________
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Hello Paul, That is fair enough, however if such decisions must be left to the committee to allow for efficiency, a proactive approach to notifying the CCWG needs to be put in place; such decisions should be documented with appropriate *rationale* as well. Regards Sent from my LG G4 Kindly excuse brevity and typos On 18 Jul 2016 6:15 p.m., "Paul Rosenzweig" < paul.rosenzweig@redbranchconsulting.com> wrote:
With respect, I disagree. The question of whether or not to seek advice is a ministerial one that can and should be left to the good judgment of the co-chairs and the committee members. As we have seen in the last few days, the broader CCWG can get overwhelmed with disagreement on relatively inconsequential matters of process when for the most part our thinking and time are best devoted to substantive questions that require analysis and resolution
Cheers
Paul
Paul Rosenzweig
paul.rosenzweig@redbranchconsulting.com
O: +1 (202) 547-0660
M: +1 (202) 329-9650
VOIP: +1 (202) 738-1739
www.redbranchconsulting.com
My PGP Key: http://redbranchconsulting.com/who-we-are/public-pgp-key/
*From:* accountability-cross-community-bounces@icann.org [mailto: accountability-cross-community-bounces@icann.org] *On Behalf Of *Seun Ojedeji *Sent:* Monday, July 18, 2016 12:32 PM *To:* Mathieu Weill <mathieu.weill@afnic.fr> *Cc:* ACCT-Staff <acct-staff@icann.org>; accountability-cross-community@icann.org *Subject:* Re: [CCWG-ACCT] Legal Committee and WS2 budget - new proposal
Hello Mathieu,
The attached document indicated that decision will be handled based on case by case basis which is fine.
However I think sub-bullet 1 of item 2 on page 6 is not explicit about decision making process. I like to suggest that when independent council is required, the legal committee should rather recommend (not decide on behalf) to the group as it should be the decision of the CCWG-ACT to make. Such recommendation should also include adequate rationale on why external council is preferred over ICANN legal staff.
Regards
Sent from my LG G4 Kindly excuse brevity and typos
On 18 Jul 2016 5:10 p.m., "Mathieu Weill" <mathieu.weill@afnic.fr> wrote:
Dear Colleagues,
Based on the feedback received during last week’s call, as well as on the robust discussion on the list, we are suggesting a revised approach for the Legal Committee :
- Composition based on previous Legal executive team
- Co-chairs remain budget owners, working with support from the PCST
- Legal committee may direct requests to external firms, on a case by case assessment taking into account costs, skills as well as potential requirement for “independent” advice.
We believe this strikes a good balance between the need to manage costs efficiently and responsibly, and the ability for our group to request independent advice when needed.
Depending on the feedbacks, we will report on our progress to the Board Finance Committee and SO/AC leaders during a call that has been arranged at the BFC’s request on Monday 25 July.
Best regards,
Mathieu Weill
Co-chair
_______________________________________________ Accountability-Cross-Community mailing list Accountability-Cross-Community@icann.org https://mm.icann.org/mailman/listinfo/accountability-cross-community
I believe that the CCWG has already generally been informed when a question or issue has been referred to counsel -- at least by reference to the legal committee list, when decisions were made in that manner, and by statement of the Co-Chairs, when that was the approach. I don't think there's a need for a "rationale" to be prepared each time. This seems like "make-work," and/or a back-door attempt to introduce the "default" that has been broadly rejected. In any event, the rationale should be self-evident from the question presented by the subgroup seeking legal advice. Greg On Mon, Jul 18, 2016 at 2:14 PM, Seun Ojedeji <seun.ojedeji@gmail.com> wrote:
Hello Paul,
That is fair enough, however if such decisions must be left to the committee to allow for efficiency, a proactive approach to notifying the CCWG needs to be put in place; such decisions should be documented with appropriate *rationale* as well.
Regards
Sent from my LG G4 Kindly excuse brevity and typos
On 18 Jul 2016 6:15 p.m., "Paul Rosenzweig" < paul.rosenzweig@redbranchconsulting.com> wrote:
With respect, I disagree. The question of whether or not to seek advice is a ministerial one that can and should be left to the good judgment of the co-chairs and the committee members. As we have seen in the last few days, the broader CCWG can get overwhelmed with disagreement on relatively inconsequential matters of process when for the most part our thinking and time are best devoted to substantive questions that require analysis and resolution
Cheers
Paul
Paul Rosenzweig
paul.rosenzweig@redbranchconsulting.com
O: +1 (202) 547-0660
M: +1 (202) 329-9650
VOIP: +1 (202) 738-1739
www.redbranchconsulting.com
My PGP Key: http://redbranchconsulting.com/who-we-are/public-pgp-key/
*From:* accountability-cross-community-bounces@icann.org [mailto: accountability-cross-community-bounces@icann.org] *On Behalf Of *Seun Ojedeji *Sent:* Monday, July 18, 2016 12:32 PM *To:* Mathieu Weill <mathieu.weill@afnic.fr> *Cc:* ACCT-Staff <acct-staff@icann.org>; accountability-cross-community@icann.org *Subject:* Re: [CCWG-ACCT] Legal Committee and WS2 budget - new proposal
Hello Mathieu,
The attached document indicated that decision will be handled based on case by case basis which is fine.
However I think sub-bullet 1 of item 2 on page 6 is not explicit about decision making process. I like to suggest that when independent council is required, the legal committee should rather recommend (not decide on behalf) to the group as it should be the decision of the CCWG-ACT to make. Such recommendation should also include adequate rationale on why external council is preferred over ICANN legal staff.
Regards
Sent from my LG G4 Kindly excuse brevity and typos
On 18 Jul 2016 5:10 p.m., "Mathieu Weill" <mathieu.weill@afnic.fr> wrote:
Dear Colleagues,
Based on the feedback received during last week’s call, as well as on the robust discussion on the list, we are suggesting a revised approach for the Legal Committee :
- Composition based on previous Legal executive team
- Co-chairs remain budget owners, working with support from the PCST
- Legal committee may direct requests to external firms, on a case by case assessment taking into account costs, skills as well as potential requirement for “independent” advice.
We believe this strikes a good balance between the need to manage costs efficiently and responsibly, and the ability for our group to request independent advice when needed.
Depending on the feedbacks, we will report on our progress to the Board Finance Committee and SO/AC leaders during a call that has been arranged at the BFC’s request on Monday 25 July.
Best regards,
Mathieu Weill
Co-chair
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Mathieu, Generally, the proposal looks good. I have the following comments: Slide 4: *Monthly meetings* -- I think the legal committee will need to be more nimble and responsive than this. Quarantining legal counsel requests may not work in many instances, where the work is needed at the time the question ripens within a subgroup. We should either (a) have a process that moves forward without the need for a meeting, or (b) more frequent meetings (which will have the benefit of being shorter, since fewer items will be presented) (or both). *Tracking legal expenses* -- This is absolutely critical. We had no transparency into expenses, except when the gross numbers were announced, which was way too late to be meaningful to managing costs. The legal committee must see the legal bills immediately when received by ICANN. On a related note, it needs to be absolutely clear that the CCWG's budget for counsel does not include any spend for ICANN external counsel or any allocated costs for ICANN Legal (possibly excluding times when they are acting on an express request from CCWG). Also, it would not be fair for any overall "legal budget" to be split between ICANN and the CCWG equally. ICANN has the benefit of having inside counsel, which is inherently more cost-effective (particularly on an allocated basis), while the CCWG only has external counsel. (The idea of in-house counsel for the CCWG is interesting, but probably not worth discussing at this juncture....) Slide 6: *ICANN Legal*: "The Committee is encouraged to use ICANN Legal as much as possible in order to manage costs effectively." I would add "Where appropriate," to the beginning of this point. Otherwise, it could be used to argue that there is a default to use ICANN Legal, which has generally been rejected in this group. This also does not account for the issues of attorney-client privilege and the attorney's duty of loyalty to their client, both of which apply to in-house counsel (see below). *ICANN External Counsel*: "Requests may be directed to Icann’s external Counsel, if the Committee finds it appropriate. In such case, before certifying the request, the Legal Committee will discuss with ICANN Legal how best to address attorney-client privilege issues." I would like more clarity on what specific attorney-client privilege issues are being referenced here. CCWG legal counsel has had essentially had to waive privilege on most advice, so that it can be seen and discussed in an open and transparent fashion. On the other hand, advice given to ICANN by ICANN's external counsel has not been shared directly with the CCWG, on the grounds that that advice is subject to privilege in the relationship between attorney (outside counsel) and client (ICANN, Inc. -- not the CCWG). As such, it seems that materials received from ICANN's outside counsel are either advice to ICANN, Inc. (and thus privileged and unavailable to the CCWG), legal assertions made to a non-client (and thus to be taken with a grain of salt), or advice given to the CCWG as its client (which client relationship does not yet exist, and which likely requires a conflict waiver before such client relationship can be initiated). It should be noted that attorney-client privilege is just one aspect of a larger issue, which is the duty of loyalty (and other duties) by the attorney to their client. Greg On Mon, Jul 18, 2016 at 2:54 PM, Greg Shatan <gregshatanipc@gmail.com> wrote:
I believe that the CCWG has already generally been informed when a question or issue has been referred to counsel -- at least by reference to the legal committee list, when decisions were made in that manner, and by statement of the Co-Chairs, when that was the approach. I don't think there's a need for a "rationale" to be prepared each time. This seems like "make-work," and/or a back-door attempt to introduce the "default" that has been broadly rejected. In any event, the rationale should be self-evident from the question presented by the subgroup seeking legal advice.
Greg
On Mon, Jul 18, 2016 at 2:14 PM, Seun Ojedeji <seun.ojedeji@gmail.com> wrote:
Hello Paul,
That is fair enough, however if such decisions must be left to the committee to allow for efficiency, a proactive approach to notifying the CCWG needs to be put in place; such decisions should be documented with appropriate *rationale* as well.
Regards
Sent from my LG G4 Kindly excuse brevity and typos
On 18 Jul 2016 6:15 p.m., "Paul Rosenzweig" < paul.rosenzweig@redbranchconsulting.com> wrote:
With respect, I disagree. The question of whether or not to seek advice is a ministerial one that can and should be left to the good judgment of the co-chairs and the committee members. As we have seen in the last few days, the broader CCWG can get overwhelmed with disagreement on relatively inconsequential matters of process when for the most part our thinking and time are best devoted to substantive questions that require analysis and resolution
Cheers
Paul
Paul Rosenzweig
paul.rosenzweig@redbranchconsulting.com
O: +1 (202) 547-0660
M: +1 (202) 329-9650
VOIP: +1 (202) 738-1739
www.redbranchconsulting.com
My PGP Key: http://redbranchconsulting.com/who-we-are/public-pgp-key/
*From:* accountability-cross-community-bounces@icann.org [mailto: accountability-cross-community-bounces@icann.org] *On Behalf Of *Seun Ojedeji *Sent:* Monday, July 18, 2016 12:32 PM *To:* Mathieu Weill <mathieu.weill@afnic.fr> *Cc:* ACCT-Staff <acct-staff@icann.org>; accountability-cross-community@icann.org *Subject:* Re: [CCWG-ACCT] Legal Committee and WS2 budget - new proposal
Hello Mathieu,
The attached document indicated that decision will be handled based on case by case basis which is fine.
However I think sub-bullet 1 of item 2 on page 6 is not explicit about decision making process. I like to suggest that when independent council is required, the legal committee should rather recommend (not decide on behalf) to the group as it should be the decision of the CCWG-ACT to make. Such recommendation should also include adequate rationale on why external council is preferred over ICANN legal staff.
Regards
Sent from my LG G4 Kindly excuse brevity and typos
On 18 Jul 2016 5:10 p.m., "Mathieu Weill" <mathieu.weill@afnic.fr> wrote:
Dear Colleagues,
Based on the feedback received during last week’s call, as well as on the robust discussion on the list, we are suggesting a revised approach for the Legal Committee :
- Composition based on previous Legal executive team
- Co-chairs remain budget owners, working with support from the PCST
- Legal committee may direct requests to external firms, on a case by case assessment taking into account costs, skills as well as potential requirement for “independent” advice.
We believe this strikes a good balance between the need to manage costs efficiently and responsibly, and the ability for our group to request independent advice when needed.
Depending on the feedbacks, we will report on our progress to the Board Finance Committee and SO/AC leaders during a call that has been arranged at the BFC’s request on Monday 25 July.
Best regards,
Mathieu Weill
Co-chair
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I agree with Greg’s points below, which are critical to receiving the most effective representation. Thanks, Robin
On Jul 18, 2016, at 12:25 PM, Greg Shatan <gregshatanipc@gmail.com> wrote:
Mathieu,
Generally, the proposal looks good. I have the following comments:
Slide 4: Monthly meetings -- I think the legal committee will need to be more nimble and responsive than this. Quarantining legal counsel requests may not work in many instances, where the work is needed at the time the question ripens within a subgroup. We should either (a) have a process that moves forward without the need for a meeting, or (b) more frequent meetings (which will have the benefit of being shorter, since fewer items will be presented) (or both). Tracking legal expenses -- This is absolutely critical. We had no transparency into expenses, except when the gross numbers were announced, which was way too late to be meaningful to managing costs. The legal committee must see the legal bills immediately when received by ICANN. On a related note, it needs to be absolutely clear that the CCWG's budget for counsel does not include any spend for ICANN external counsel or any allocated costs for ICANN Legal (possibly excluding times when they are acting on an express request from CCWG). Also, it would not be fair for any overall "legal budget" to be split between ICANN and the CCWG equally. ICANN has the benefit of having inside counsel, which is inherently more cost-effective (particularly on an allocated basis), while the CCWG only has external counsel. (The idea of in-house counsel for the CCWG is interesting, but probably not worth discussing at this juncture....)
Slide 6: ICANN Legal: "The Committee is encouraged to use ICANN Legal as much as possible in order to manage costs effectively." I would add "Where appropriate," to the beginning of this point. Otherwise, it could be used to argue that there is a default to use ICANN Legal, which has generally been rejected in this group. This also does not account for the issues of attorney-client privilege and the attorney's duty of loyalty to their client, both of which apply to in-house counsel (see below). ICANN External Counsel: "Requests may be directed to Icann’s external Counsel, if the Committee finds it appropriate. In such case, before certifying the request, the Legal Committee will discuss with ICANN Legal how best to address attorney-client privilege issues." I would like more clarity on what specific attorney-client privilege issues are being referenced here. CCWG legal counsel has had essentially had to waive privilege on most advice, so that it can be seen and discussed in an open and transparent fashion. On the other hand, advice given to ICANN by ICANN's external counsel has not been shared directly with the CCWG, on the grounds that that advice is subject to privilege in the relationship between attorney (outside counsel) and client (ICANN, Inc. -- not the CCWG). As such, it seems that materials received from ICANN's outside counsel are either advice to ICANN, Inc. (and thus privileged and unavailable to the CCWG), legal assertions made to a non-client (and thus to be taken with a grain of salt), or advice given to the CCWG as its client (which client relationship does not yet exist, and which likely requires a conflict waiver before such client relationship can be initiated). It should be noted that attorney-client privilege is just one aspect of a larger issue, which is the duty of loyalty (and other duties) by the attorney to their client.
Greg
On Mon, Jul 18, 2016 at 2:54 PM, Greg Shatan <gregshatanipc@gmail.com <mailto:gregshatanipc@gmail.com>> wrote: I believe that the CCWG has already generally been informed when a question or issue has been referred to counsel -- at least by reference to the legal committee list, when decisions were made in that manner, and by statement of the Co-Chairs, when that was the approach. I don't think there's a need for a "rationale" to be prepared each time. This seems like "make-work," and/or a back-door attempt to introduce the "default" that has been broadly rejected. In any event, the rationale should be self-evident from the question presented by the subgroup seeking legal advice.
Greg
On Mon, Jul 18, 2016 at 2:14 PM, Seun Ojedeji <seun.ojedeji@gmail.com <mailto:seun.ojedeji@gmail.com>> wrote: Hello Paul,
That is fair enough, however if such decisions must be left to the committee to allow for efficiency, a proactive approach to notifying the CCWG needs to be put in place; such decisions should be documented with appropriate *rationale* as well.
Regards
Sent from my LG G4 Kindly excuse brevity and typos
On 18 Jul 2016 6:15 p.m., "Paul Rosenzweig" <paul.rosenzweig@redbranchconsulting.com <mailto:paul.rosenzweig@redbranchconsulting.com>> wrote: With respect, I disagree. The question of whether or not to seek advice is a ministerial one that can and should be left to the good judgment of the co-chairs and the committee members. As we have seen in the last few days, the broader CCWG can get overwhelmed with disagreement on relatively inconsequential matters of process when for the most part our thinking and time are best devoted to substantive questions that require analysis and resolution
Cheers
Paul
Paul Rosenzweig
paul.rosenzweig@redbranchconsulting.com <mailto:paul.rosenzweig@redbranchconsulting.com> O: +1 (202) 547-0660 <tel:%2B1%20%28202%29%20547-0660> M: +1 (202) 329-9650 <tel:%2B1%20%28202%29%20329-9650> VOIP: +1 (202) 738-1739 <tel:%2B1%20%28202%29%20738-1739> www.redbranchconsulting.com <http://www.redbranchconsulting.com/> My PGP Key: http://redbranchconsulting.com/who-we-are/public-pgp-key/ <http://redbranchconsulting.com/who-we-are/public-pgp-key/>
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 18, 2016 12:32 PM To: Mathieu Weill <mathieu.weill@afnic.fr <mailto:mathieu.weill@afnic.fr>> Cc: ACCT-Staff <acct-staff@icann.org <mailto:acct-staff@icann.org>>; accountability-cross-community@icann.org <mailto:accountability-cross-community@icann.org> Subject: Re: [CCWG-ACCT] Legal Committee and WS2 budget - new proposal
Hello Mathieu,
The attached document indicated that decision will be handled based on case by case basis which is fine.
However I think sub-bullet 1 of item 2 on page 6 is not explicit about decision making process. I like to suggest that when independent council is required, the legal committee should rather recommend (not decide on behalf) to the group as it should be the decision of the CCWG-ACT to make. Such recommendation should also include adequate rationale on why external council is preferred over ICANN legal staff.
Regards
Sent from my LG G4 Kindly excuse brevity and typos
On 18 Jul 2016 5:10 p.m., "Mathieu Weill" <mathieu.weill@afnic.fr <mailto:mathieu.weill@afnic.fr>> wrote:
Dear Colleagues,
Based on the feedback received during last week’s call, as well as on the robust discussion on the list, we are suggesting a revised approach for the Legal Committee :
- Composition based on previous Legal executive team
- Co-chairs remain budget owners, working with support from the PCST
- Legal committee may direct requests to external firms, on a case by case assessment taking into account costs, skills as well as potential requirement for “independent” advice.
We believe this strikes a good balance between the need to manage costs efficiently and responsibly, and the ability for our group to request independent advice when needed.
Depending on the feedbacks, we will report on our progress to the Board Finance Committee and SO/AC leaders during a call that has been arranged at the BFC’s request on Monday 25 July.
Best regards,
Mathieu Weill
Co-chair
_______________________________________________ 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://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 <https://mm.icann.org/mailman/listinfo/accountability-cross-community>
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I agree, and thank Greg for his analysis. In addition, while we should not be averse to asking questions of ICANN Legal (general Counsel staff) “where appropriate”, I believe that the multiple issues identified by Greg arising from a request to ICANN External Counsel (Jones Day) mitigate against the CCWG directing questions to them unless and until those issues can be resolved with clarity in a wholly satisfactory manner. Philip S. Corwin, Founding Principal Virtualaw LLC 1155 F Street, NW Suite 1050 Washington, DC 20004 202-559-8597/Direct 202-559-8750/Fax 202-255-6172/Cell Twitter: @VlawDC "Luck is the residue of design" -- Branch Rickey From: accountability-cross-community-bounces@icann.org [mailto:accountability-cross-community-bounces@icann.org] On Behalf Of Robin Gross Sent: Monday, July 18, 2016 4:32 PM To: Greg Shatan Cc: ACCT-Staff; accountability-cross-community@icann.org Subject: Re: [CCWG-ACCT] Legal Committee and WS2 budget - new proposal I agree with Greg’s points below, which are critical to receiving the most effective representation. Thanks, Robin On Jul 18, 2016, at 12:25 PM, Greg Shatan <gregshatanipc@gmail.com<mailto:gregshatanipc@gmail.com>> wrote: Mathieu, Generally, the proposal looks good. I have the following comments: Slide 4: Monthly meetings -- I think the legal committee will need to be more nimble and responsive than this. Quarantining legal counsel requests may not work in many instances, where the work is needed at the time the question ripens within a subgroup. We should either (a) have a process that moves forward without the need for a meeting, or (b) more frequent meetings (which will have the benefit of being shorter, since fewer items will be presented) (or both). Tracking legal expenses -- This is absolutely critical. We had no transparency into expenses, except when the gross numbers were announced, which was way too late to be meaningful to managing costs. The legal committee must see the legal bills immediately when received by ICANN. On a related note, it needs to be absolutely clear that the CCWG's budget for counsel does not include any spend for ICANN external counsel or any allocated costs for ICANN Legal (possibly excluding times when they are acting on an express request from CCWG). Also, it would not be fair for any overall "legal budget" to be split between ICANN and the CCWG equally. ICANN has the benefit of having inside counsel, which is inherently more cost-effective (particularly on an allocated basis), while the CCWG only has external counsel. (The idea of in-house counsel for the CCWG is interesting, but probably not worth discussing at this juncture....) Slide 6: ICANN Legal: "The Committee is encouraged to use ICANN Legal as much as possible in order to manage costs effectively." I would add "Where appropriate," to the beginning of this point. Otherwise, it could be used to argue that there is a default to use ICANN Legal, which has generally been rejected in this group. This also does not account for the issues of attorney-client privilege and the attorney's duty of loyalty to their client, both of which apply to in-house counsel (see below). ICANN External Counsel: "Requests may be directed to Icann’s external Counsel, if the Committee finds it appropriate. In such case, before certifying the request, the Legal Committee will discuss with ICANN Legal how best to address attorney-client privilege issues." I would like more clarity on what specific attorney-client privilege issues are being referenced here. CCWG legal counsel has had essentially had to waive privilege on most advice, so that it can be seen and discussed in an open and transparent fashion. On the other hand, advice given to ICANN by ICANN's external counsel has not been shared directly with the CCWG, on the grounds that that advice is subject to privilege in the relationship between attorney (outside counsel) and client (ICANN, Inc. -- not the CCWG). As such, it seems that materials received from ICANN's outside counsel are either advice to ICANN, Inc. (and thus privileged and unavailable to the CCWG), legal assertions made to a non-client (and thus to be taken with a grain of salt), or advice given to the CCWG as its client (which client relationship does not yet exist, and which likely requires a conflict waiver before such client relationship can be initiated). It should be noted that attorney-client privilege is just one aspect of a larger issue, which is the duty of loyalty (and other duties) by the attorney to their client. Greg On Mon, Jul 18, 2016 at 2:54 PM, Greg Shatan <gregshatanipc@gmail.com<mailto:gregshatanipc@gmail.com>> wrote: I believe that the CCWG has already generally been informed when a question or issue has been referred to counsel -- at least by reference to the legal committee list, when decisions were made in that manner, and by statement of the Co-Chairs, when that was the approach. I don't think there's a need for a "rationale" to be prepared each time. This seems like "make-work," and/or a back-door attempt to introduce the "default" that has been broadly rejected. In any event, the rationale should be self-evident from the question presented by the subgroup seeking legal advice. Greg On Mon, Jul 18, 2016 at 2:14 PM, Seun Ojedeji <seun.ojedeji@gmail.com<mailto:seun.ojedeji@gmail.com>> wrote: Hello Paul, That is fair enough, however if such decisions must be left to the committee to allow for efficiency, a proactive approach to notifying the CCWG needs to be put in place; such decisions should be documented with appropriate *rationale* as well. Regards Sent from my LG G4 Kindly excuse brevity and typos On 18 Jul 2016 6:15 p.m., "Paul Rosenzweig" <paul.rosenzweig@redbranchconsulting.com<mailto:paul.rosenzweig@redbranchconsulting.com>> wrote: With respect, I disagree. The question of whether or not to seek advice is a ministerial one that can and should be left to the good judgment of the co-chairs and the committee members. As we have seen in the last few days, the broader CCWG can get overwhelmed with disagreement on relatively inconsequential matters of process when for the most part our thinking and time are best devoted to substantive questions that require analysis and resolution Cheers Paul Paul Rosenzweig paul.rosenzweig@redbranchconsulting.com<mailto:paul.rosenzweig@redbranchconsulting.com> O: +1 (202) 547-0660<tel:%2B1%20%28202%29%20547-0660> M: +1 (202) 329-9650<tel:%2B1%20%28202%29%20329-9650> VOIP: +1 (202) 738-1739<tel:%2B1%20%28202%29%20738-1739> www.redbranchconsulting.com<http://www.redbranchconsulting.com/> My PGP Key: http://redbranchconsulting.com/who-we-are/public-pgp-key/ 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 18, 2016 12:32 PM To: Mathieu Weill <mathieu.weill@afnic.fr<mailto:mathieu.weill@afnic.fr>> Cc: ACCT-Staff <acct-staff@icann.org<mailto:acct-staff@icann.org>>; accountability-cross-community@icann.org<mailto:accountability-cross-community@icann.org> Subject: Re: [CCWG-ACCT] Legal Committee and WS2 budget - new proposal Hello Mathieu, The attached document indicated that decision will be handled based on case by case basis which is fine. However I think sub-bullet 1 of item 2 on page 6 is not explicit about decision making process. I like to suggest that when independent council is required, the legal committee should rather recommend (not decide on behalf) to the group as it should be the decision of the CCWG-ACT to make. Such recommendation should also include adequate rationale on why external council is preferred over ICANN legal staff. Regards Sent from my LG G4 Kindly excuse brevity and typos On 18 Jul 2016 5:10 p.m., "Mathieu Weill" <mathieu.weill@afnic.fr<mailto:mathieu.weill@afnic.fr>> wrote: Dear Colleagues, Based on the feedback received during last week’s call, as well as on the robust discussion on the list, we are suggesting a revised approach for the Legal Committee : - Composition based on previous Legal executive team - Co-chairs remain budget owners, working with support from the PCST - Legal committee may direct requests to external firms, on a case by case assessment taking into account costs, skills as well as potential requirement for “independent” advice. We believe this strikes a good balance between the need to manage costs efficiently and responsibly, and the ability for our group to request independent advice when needed. Depending on the feedbacks, we will report on our progress to the Board Finance Committee and SO/AC leaders during a call that has been arranged at the BFC’s request on Monday 25 July. Best regards, Mathieu Weill Co-chair _______________________________________________ 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 ________________________________ No virus found in this message. 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I support Greg's analysis On 19 Jul 2016 2:59 am, "Phil Corwin" <psc@vlaw-dc.com> wrote:
I agree, and thank Greg for his analysis.
In addition, while we should not be averse to asking questions of ICANN Legal (general Counsel staff) “where appropriate”, I believe that the multiple issues identified by Greg arising from a request to ICANN External Counsel (Jones Day) mitigate against the CCWG directing questions to them unless and until those issues can be resolved with clarity in a wholly satisfactory manner.
*Philip S. Corwin, Founding Principal*
*Virtualaw LLC*
*1155 F Street, NW*
*Suite 1050*
*Washington, DC 20004*
*202-559-8597 <202-559-8597>/Direct*
*202-559-8750 <202-559-8750>/Fax*
*202-255-6172 <202-255-6172>/Cell*
*Twitter: @VlawDC*
*"Luck is the residue of design" -- Branch Rickey*
*From:* accountability-cross-community-bounces@icann.org [mailto: accountability-cross-community-bounces@icann.org] *On Behalf Of *Robin Gross *Sent:* Monday, July 18, 2016 4:32 PM *To:* Greg Shatan *Cc:* ACCT-Staff; accountability-cross-community@icann.org *Subject:* Re: [CCWG-ACCT] Legal Committee and WS2 budget - new proposal
I agree with Greg’s points below, which are critical to receiving the most effective representation.
Thanks,
Robin
On Jul 18, 2016, at 12:25 PM, Greg Shatan <gregshatanipc@gmail.com> wrote:
Mathieu,
Generally, the proposal looks good. I have the following comments:
Slide 4: *Monthly meetings* -- I think the legal committee will need to be more nimble and responsive than this. Quarantining legal counsel requests may not work in many instances, where the work is needed at the time the question ripens within a subgroup. We should either (a) have a process that moves forward without the need for a meeting, or (b) more frequent meetings (which will have the benefit of being shorter, since fewer items will be presented) (or both).
*Tracking legal expenses* -- This is absolutely critical. We had no transparency into expenses, except when the gross numbers were announced, which was way too late to be meaningful to managing costs. The legal committee must see the legal bills immediately when received by ICANN. On a related note, it needs to be absolutely clear that the CCWG's budget for counsel does not include any spend for ICANN external counsel or any allocated costs for ICANN Legal (possibly excluding times when they are acting on an express request from CCWG). Also, it would not be fair for any overall "legal budget" to be split between ICANN and the CCWG equally. ICANN has the benefit of having inside counsel, which is inherently more cost-effective (particularly on an allocated basis), while the CCWG only has external counsel. (The idea of in-house counsel for the CCWG is interesting, but probably not worth discussing at this juncture....)
Slide 6: *ICANN Legal*: "The Committee is encouraged to use ICANN Legal as much as possible in order to manage costs effectively." I would add "Where appropriate," to the beginning of this point. Otherwise, it could be used to argue that there is a default to use ICANN Legal, which has generally been rejected in this group. This also does not account for the issues of attorney-client privilege and the attorney's duty of loyalty to their client, both of which apply to in-house counsel (see below).
*ICANN External Counsel*: "Requests may be directed to Icann’s external Counsel, if the Committee finds it appropriate. In such case, before certifying the request, the Legal Committee will discuss with ICANN Legal how best to address attorney-client privilege issues." I would like more clarity on what specific attorney-client privilege issues are being referenced here. CCWG legal counsel has had essentially had to waive privilege on most advice, so that it can be seen and discussed in an open and transparent fashion. On the other hand, advice given to ICANN by ICANN's external counsel has not been shared directly with the CCWG, on the grounds that that advice is subject to privilege in the relationship between attorney (outside counsel) and client (ICANN, Inc. -- not the CCWG). As such, it seems that materials received from ICANN's outside counsel are either advice to ICANN, Inc. (and thus privileged and unavailable to the CCWG), legal assertions made to a non-client (and thus to be taken with a grain of salt), or advice given to the CCWG as its client (which client relationship does not yet exist, and which likely requires a conflict waiver before such client relationship can be initiated). It should be noted that attorney-client privilege is just one aspect of a larger issue, which is the duty of loyalty (and other duties) by the attorney to their client.
Greg
On Mon, Jul 18, 2016 at 2:54 PM, Greg Shatan <gregshatanipc@gmail.com> wrote:
I believe that the CCWG has already generally been informed when a question or issue has been referred to counsel -- at least by reference to the legal committee list, when decisions were made in that manner, and by statement of the Co-Chairs, when that was the approach. I don't think there's a need for a "rationale" to be prepared each time. This seems like "make-work," and/or a back-door attempt to introduce the "default" that has been broadly rejected. In any event, the rationale should be self-evident from the question presented by the subgroup seeking legal advice.
Greg
On Mon, Jul 18, 2016 at 2:14 PM, Seun Ojedeji <seun.ojedeji@gmail.com> wrote:
Hello Paul,
That is fair enough, however if such decisions must be left to the committee to allow for efficiency, a proactive approach to notifying the CCWG needs to be put in place; such decisions should be documented with appropriate *rationale* as well.
Regards
Sent from my LG G4 Kindly excuse brevity and typos
On 18 Jul 2016 6:15 p.m., "Paul Rosenzweig" < paul.rosenzweig@redbranchconsulting.com> wrote:
With respect, I disagree. The question of whether or not to seek advice is a ministerial one that can and should be left to the good judgment of the co-chairs and the committee members. As we have seen in the last few days, the broader CCWG can get overwhelmed with disagreement on relatively inconsequential matters of process when for the most part our thinking and time are best devoted to substantive questions that require analysis and resolution
Cheers
Paul
Paul Rosenzweig
paul.rosenzweig@redbranchconsulting.com
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*From:* accountability-cross-community-bounces@icann.org [mailto: accountability-cross-community-bounces@icann.org] *On Behalf Of *Seun Ojedeji *Sent:* Monday, July 18, 2016 12:32 PM *To:* Mathieu Weill <mathieu.weill@afnic.fr> *Cc:* ACCT-Staff <acct-staff@icann.org>; accountability-cross-community@icann.org *Subject:* Re: [CCWG-ACCT] Legal Committee and WS2 budget - new proposal
Hello Mathieu,
The attached document indicated that decision will be handled based on case by case basis which is fine.
However I think sub-bullet 1 of item 2 on page 6 is not explicit about decision making process. I like to suggest that when independent council is required, the legal committee should rather recommend (not decide on behalf) to the group as it should be the decision of the CCWG-ACT to make. Such recommendation should also include adequate rationale on why external council is preferred over ICANN legal staff.
Regards
Sent from my LG G4 Kindly excuse brevity and typos
On 18 Jul 2016 5:10 p.m., "Mathieu Weill" <mathieu.weill@afnic.fr> wrote:
Dear Colleagues,
Based on the feedback received during last week’s call, as well as on the robust discussion on the list, we are suggesting a revised approach for the Legal Committee :
- Composition based on previous Legal executive team
- Co-chairs remain budget owners, working with support from the PCST
- Legal committee may direct requests to external firms, on a case by case assessment taking into account costs, skills as well as potential requirement for “independent” advice.
We believe this strikes a good balance between the need to manage costs efficiently and responsibly, and the ability for our group to request independent advice when needed.
Depending on the feedbacks, we will report on our progress to the Board Finance Committee and SO/AC leaders during a call that has been arranged at the BFC’s request on Monday 25 July.
Best regards,
Mathieu Weill
Co-chair
_______________________________________________ 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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Thanks for the analysis. I agree Jones Day should be seen as “last resort “, otherwise it already smacks of duplication of effort, time, costs and efficiency. With my accountant hat on , there needs to be put in place a clear , transparent , accountable budgetary process , with a proper sign off process (by the co - chairs ) .with just one cost centre. There should be no idea of a reallocation of costs or a splitting of a” legal budget..” Just my 2 pence. Phil From: accountability-cross-community-bounces@icann.org [mailto:accountability-cross-community-bounces@icann.org] On Behalf Of Phil Corwin Sent: Monday, July 18, 2016 10:14 PM To: Robin Gross; Greg Shatan Cc: ACCT-Staff; accountability-cross-community@icann.org Subject: Re: [CCWG-ACCT] Legal Committee and WS2 budget - new proposal I agree, and thank Greg for his analysis. In addition, while we should not be averse to asking questions of ICANN Legal (general Counsel staff) “where appropriate”, I believe that the multiple issues identified by Greg arising from a request to ICANN External Counsel (Jones Day) mitigate against the CCWG directing questions to them unless and until those issues can be resolved with clarity in a wholly satisfactory manner. Philip S. Corwin, Founding Principal Virtualaw LLC 1155 F Street, NW Suite 1050 Washington, DC 20004 202-559-8597/Direct 202-559-8750/Fax 202-255-6172/Cell Twitter: @VlawDC "Luck is the residue of design" -- Branch Rickey From: accountability-cross-community-bounces@icann.org [mailto:accountability-cross-community-bounces@icann.org] On Behalf Of Robin Gross Sent: Monday, July 18, 2016 4:32 PM To: Greg Shatan Cc: ACCT-Staff; accountability-cross-community@icann.org Subject: Re: [CCWG-ACCT] Legal Committee and WS2 budget - new proposal I agree with Greg’s points below, which are critical to receiving the most effective representation. Thanks, Robin On Jul 18, 2016, at 12:25 PM, Greg Shatan <gregshatanipc@gmail.com> wrote: Mathieu, Generally, the proposal looks good. I have the following comments: Slide 4: Monthly meetings -- I think the legal committee will need to be more nimble and responsive than this. Quarantining legal counsel requests may not work in many instances, where the work is needed at the time the question ripens within a subgroup. We should either (a) have a process that moves forward without the need for a meeting, or (b) more frequent meetings (which will have the benefit of being shorter, since fewer items will be presented) (or both). Tracking legal expenses -- This is absolutely critical. We had no transparency into expenses, except when the gross numbers were announced, which was way too late to be meaningful to managing costs. The legal committee must see the legal bills immediately when received by ICANN. On a related note, it needs to be absolutely clear that the CCWG's budget for counsel does not include any spend for ICANN external counsel or any allocated costs for ICANN Legal (possibly excluding times when they are acting on an express request from CCWG). Also, it would not be fair for any overall "legal budget" to be split between ICANN and the CCWG equally. ICANN has the benefit of having inside counsel, which is inherently more cost-effective (particularly on an allocated basis), while the CCWG only has external counsel. (The idea of in-house counsel for the CCWG is interesting, but probably not worth discussing at this juncture....) Slide 6: ICANN Legal: "The Committee is encouraged to use ICANN Legal as much as possible in order to manage costs effectively." I would add "Where appropriate," to the beginning of this point. Otherwise, it could be used to argue that there is a default to use ICANN Legal, which has generally been rejected in this group. This also does not account for the issues of attorney-client privilege and the attorney's duty of loyalty to their client, both of which apply to in-house counsel (see below). ICANN External Counsel: "Requests may be directed to Icann’s external Counsel, if the Committee finds it appropriate. In such case, before certifying the request, the Legal Committee will discuss with ICANN Legal how best to address attorney-client privilege issues." I would like more clarity on what specific attorney-client privilege issues are being referenced here. CCWG legal counsel has had essentially had to waive privilege on most advice, so that it can be seen and discussed in an open and transparent fashion. On the other hand, advice given to ICANN by ICANN's external counsel has not been shared directly with the CCWG, on the grounds that that advice is subject to privilege in the relationship between attorney (outside counsel) and client (ICANN, Inc. -- not the CCWG). As such, it seems that materials received from ICANN's outside counsel are either advice to ICANN, Inc. (and thus privileged and unavailable to the CCWG), legal assertions made to a non-client (and thus to be taken with a grain of salt), or advice given to the CCWG as its client (which client relationship does not yet exist, and which likely requires a conflict waiver before such client relationship can be initiated). It should be noted that attorney-client privilege is just one aspect of a larger issue, which is the duty of loyalty (and other duties) by the attorney to their client. Greg On Mon, Jul 18, 2016 at 2:54 PM, Greg Shatan <gregshatanipc@gmail.com> wrote: I believe that the CCWG has already generally been informed when a question or issue has been referred to counsel -- at least by reference to the legal committee list, when decisions were made in that manner, and by statement of the Co-Chairs, when that was the approach. I don't think there's a need for a "rationale" to be prepared each time. This seems like "make-work," and/or a back-door attempt to introduce the "default" that has been broadly rejected. In any event, the rationale should be self-evident from the question presented by the subgroup seeking legal advice. Greg On Mon, Jul 18, 2016 at 2:14 PM, Seun Ojedeji <seun.ojedeji@gmail.com> wrote: Hello Paul, That is fair enough, however if such decisions must be left to the committee to allow for efficiency, a proactive approach to notifying the CCWG needs to be put in place; such decisions should be documented with appropriate *rationale* as well. Regards Sent from my LG G4 Kindly excuse brevity and typos On 18 Jul 2016 6:15 p.m., "Paul Rosenzweig" <paul.rosenzweig@redbranchconsulting.com> wrote: With respect, I disagree. The question of whether or not to seek advice is a ministerial one that can and should be left to the good judgment of the co-chairs and the committee members. As we have seen in the last few days, the broader CCWG can get overwhelmed with disagreement on relatively inconsequential matters of process when for the most part our thinking and time are best devoted to substantive questions that require analysis and resolution Cheers Paul Paul Rosenzweig <mailto:paul.rosenzweig@redbranchconsulting.com> paul.rosenzweig@redbranchconsulting.com O: +1 (202) 547-0660 <tel:%2B1%20%28202%29%20547-0660> M: +1 (202) 329-9650 <tel:%2B1%20%28202%29%20329-9650> VOIP: +1 (202) 738-1739 <tel:%2B1%20%28202%29%20738-1739> <http://www.redbranchconsulting.com/> www.redbranchconsulting.com My PGP Key: <http://redbranchconsulting.com/who-we-are/public-pgp-key/> http://redbranchconsulting.com/who-we-are/public-pgp-key/ From: accountability-cross-community-bounces@icann.org [mailto:accountability-cross-community-bounces@icann.org] On Behalf Of Seun Ojedeji Sent: Monday, July 18, 2016 12:32 PM To: Mathieu Weill <mathieu.weill@afnic.fr> Cc: ACCT-Staff <acct-staff@icann.org>; accountability-cross-community@icann.org Subject: Re: [CCWG-ACCT] Legal Committee and WS2 budget - new proposal Hello Mathieu, The attached document indicated that decision will be handled based on case by case basis which is fine. However I think sub-bullet 1 of item 2 on page 6 is not explicit about decision making process. I like to suggest that when independent council is required, the legal committee should rather recommend (not decide on behalf) to the group as it should be the decision of the CCWG-ACT to make. Such recommendation should also include adequate rationale on why external council is preferred over ICANN legal staff. Regards Sent from my LG G4 Kindly excuse brevity and typos On 18 Jul 2016 5:10 p.m., "Mathieu Weill" <mathieu.weill@afnic.fr> wrote: Dear Colleagues, Based on the feedback received during last week’s call, as well as on the robust discussion on the list, we are suggesting a revised approach for the Legal Committee : - Composition based on previous Legal executive team - Co-chairs remain budget owners, working with support from the PCST - Legal committee may direct requests to external firms, on a case by case assessment taking into account costs, skills as well as potential requirement for “independent” advice. We believe this strikes a good balance between the need to manage costs efficiently and responsibly, and the ability for our group to request independent advice when needed. Depending on the feedbacks, we will report on our progress to the Board Finance Committee and SO/AC leaders during a call that has been arranged at the BFC’s request on Monday 25 July. Best regards, Mathieu Weill Co-chair _______________________________________________ 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 _____ No virus found in this message. Checked by AVG - www.avg.com Version: 2016.0.7497 / Virus Database: 4613/12558 - Release Date: 07/04/16 Internal Virus Database is out of date.
Looks workable. No issue. rd On Jul 18, 2016 12:10 PM, "Mathieu Weill" <mathieu.weill@afnic.fr> wrote:
Dear Colleagues,
Based on the feedback received during last week’s call, as well as on the robust discussion on the list, we are suggesting a revised approach for the Legal Committee :
- Composition based on previous Legal executive team
- Co-chairs remain budget owners, working with support from the PCST
- Legal committee may direct requests to external firms, on a case by case assessment taking into account costs, skills as well as potential requirement for “independent” advice.
We believe this strikes a good balance between the need to manage costs efficiently and responsibly, and the ability for our group to request independent advice when needed.
Depending on the feedbacks, we will report on our progress to the Board Finance Committee and SO/AC leaders during a call that has been arranged at the BFC’s request on Monday 25 July.
Best regards,
Mathieu Weill
Co-chair
_______________________________________________ Accountability-Cross-Community mailing list Accountability-Cross-Community@icann.org https://mm.icann.org/mailman/listinfo/accountability-cross-community
The approach is good Mathieu. I am in agreement Best Regards On 7/18/16, Mathieu Weill <mathieu.weill@afnic.fr> wrote:
Dear Colleagues,
Based on the feedback received during last week's call, as well as on the robust discussion on the list, we are suggesting a revised approach for the Legal Committee :
- Composition based on previous Legal executive team
- Co-chairs remain budget owners, working with support from the PCST
- Legal committee may direct requests to external firms, on a case by case assessment taking into account costs, skills as well as potential requirement for "independent" advice.
We believe this strikes a good balance between the need to manage costs efficiently and responsibly, and the ability for our group to request independent advice when needed.
Depending on the feedbacks, we will report on our progress to the Board Finance Committee and SO/AC leaders during a call that has been arranged at the BFC's request on Monday 25 July.
Best regards,
Mathieu Weill
Co-chair
-- Barrack O. Otieno +254721325277 +254733206359 Skype: barrack.otieno PGP ID: 0x2611D86A
Dear Mathieu and all, Thank you for developing and sharing the new proposal on Legal Committee and WS2 budget. The ASO has reviewed the proposal and we support the proposed legal engagement approach. Izumi Okutani on behalf of ASO liaisons to CCWG-Accountability On 2016/07/19 1:09, Mathieu Weill wrote:
Dear Colleagues,
Based on the feedback received during last week's call, as well as on the robust discussion on the list, we are suggesting a revised approach for the Legal Committee :
- Composition based on previous Legal executive team
- Co-chairs remain budget owners, working with support from the PCST
- Legal committee may direct requests to external firms, on a case by case assessment taking into account costs, skills as well as potential requirement for "independent" advice.
We believe this strikes a good balance between the need to manage costs efficiently and responsibly, and the ability for our group to request independent advice when needed.
Depending on the feedbacks, we will report on our progress to the Board Finance Committee and SO/AC leaders during a call that has been arranged at the BFC's request on Monday 25 July.
Best regards,
Mathieu Weill
Co-chair
_______________________________________________ Accountability-Cross-Community mailing list Accountability-Cross-Community@icann.org https://mm.icann.org/mailman/listinfo/accountability-cross-community
participants (13)
-
Barrack Otieno -
Carlos Raúl Gutiérrez G. -
Greg Shatan -
Izumi Okutani -
Mathieu Weill -
matthew shears -
Paul Rosenzweig -
Phil Buckingham -
Phil Corwin -
Robin Gross -
Rudolph Daniel -
Seun Ojedeji -
Shreedeep Rayamajhi