Re: [CCWG-ACCT] Who is managing the lawyers and what have they beenasked to do?
I agree Christopher, but everything we have heard says the court issue is manageable. But we keep fixating on it Sent from my iPad
On Jul 8, 2015, at 5:23 PM, CW Lists <lists@christopherwilkinson.eu> wrote:
Becky:
It matters a great deal. A system, albeit in US jurisdiction, that depends on US courts could not be entertained.
CW
On 08 Jul 2015, at 22:42, "Burr, Becky" <Becky.Burr@neustar.biz> 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> <https://urldefense.proofpoint.com/v2/url?u=http-3A__www.neustar.bi-20&d=AwIF... > >
*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:
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<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>>
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<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
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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
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The key to understanding is humility - my
view !
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-- Jordan Carter
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/A better world through a better Internet /
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Burr, Becky