For me, there seems to be clear consensus that it is absolutely necessary to have impartial legal advice on this issue. It may well emerge as a critical path in ccwg deliberations. RD On Jan 22, 2015 9:40 PM, "Robin Gross" <robin@ipjustice.org> wrote:

As a California attorney who has set up a number of California nonprofit corporations over the last decades and who understands the fiduciary relationship owed by an attorney to the corporation she represents and by a board member to the corporation it oversees, I can say we must have external legal advice to avoid both actual conflict of interest, but also to preclude the dismissal of the advice because of claims of conflict of interest. This matter is so legally complex that we need very specialized legal expertise - not something a general council's office is best suited for as they work on a broad range of issues for one specific client. That is why ICANN legal dept often utilizes the services of outside council to provide specific highly specialized legal expertise to the legal dept. on particular issues. So I agree with Becky, Eberhard, Phil, Paul, David, and Avri for all of these reasons.

Thanks, Robin

On Jan 22, 2015, at 9:46 AM, Avri Doria wrote:

Hi,

Additionally, borrowing from a another professional field: whenever contemplating surgery, get a second opinion.

avri

On 22-Jan-15 12:00, Greg Shatan wrote:

I agree with Becky, Eberhard, Phil, Paul and David, for all their reasons and more. If ICANN legal had all the expertise necessary, it would be a bad idea, due to lack of independence, ethical obligations to their client, etc. And even if they are reasonably well-informed on California non-profit law, that is necessary but not sufficient for the task at hand. Someone with considerable expertise and experience in corporate governance (especially non-profit) and corporate structuring in a variety of contexts (a "big brain," so to speak) is also necessary.

(Notably, when ICANN has needed significant advice in this area in the past, it is my impression that they have turned to the international mega firm of Jones Day (the biggest thing to come out of Cleveland, Ohio since

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On Thu, Jan 22, 2015 at 9:59 AM, Dr Eberhard Lisse <el@lisse.na> wrote:

...

Eric,

I was not looking at it from that perspective, but Becky make sense, ie if we get an opinion that is contrary to what ICANN has previously asserted in court it would put ICANN in a difficult position.

Almost as much as their Counsel estopping ICANN on anything not yet litigated.

So, we need "unconflicted" Counsel.

el

On 2015-01-22 16:49, Burr, Becky wrote:

...

Eric, I have great respect for the ICANN legal staff, but I¹m not aware that anyone on staff possesses legal expertise on international law and/or California not-for-profit law. More that that, we know that ICANN has asserted various limitations on some of the accountability mechanisms based on the ³fiduciary duty² of Board members to the corporation. Whether the ideas in question are good or bad, there is some skepticism - and a conclusion by the Berkman Center during the first ATRT review that additional legal research was needed, about the legal positions asserted by ICANN¹s legal staff and its outside counsel. Given the above, and ethical obligation of counsel to defend the views of its client vigorously, I disagree with your view that ICANN¹s counsel is well situated to provide the legal analysis we need.

J. Beckwith Burr

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