Re: [gnso-rpm-wg] REMINDER: Proposed agenda for RPM Working Group call on 25 April 2018 at 1700 UTC
Yes it is incredible that some want to include loaded and biased questions that are full of assumptions. In that vein, should we ask practitioners if they have ever lied in the papers they submitted in a matter and what specific steps they take to make sure that what they say is truthful. How about a question to practitioners about whether they have ever orchestrated measures beyond an appeal to deprive a successful claimant from being able to secure a domain name won in a proceeding. The point is that there are many loaded questions full of assumptions that can be asked to create issues to further an agenda. a better way of approaching the issue of impartiality without throwing out questions that assume a wrong exists is to simply focus on the concept of impartiality per the Rules as opposed to crafting and revising questions that have underlying assumptions not grounded in the rules. What would have been great is if the folks that posit these 11th hour questions had bothered to join the subgroups who worked very hard to get a set of questions that would be answered. Sweeping in at the 11th hour with these loaded questions, and when there is limited opportunity to discuss, is not productive. If it was that important of an issue you would think that these folks would have joined the groups and raised these issues. They didn't so I really ask why the loaded questions at this point. From: gnso-rpm-wg [mailto:gnso-rpm-wg-bounces@icann.org<mailto:gnso-rpm-wg-bounces@icann.org>] On Behalf Of Michael Karanicolas Sent: Wednesday, May 2, 2018 4:57 PM To: Corwin, Philip via gnso-rpm-wg <gnso-rpm-wg@icann.org<mailto:gnso-rpm-wg@icann.org>> Subject: Re: [gnso-rpm-wg] REMINDER: Proposed agenda for RPM Working Group call on 25 April 2018 at 1700 UTC Incredible. This looks like the exact same kabuki we just went through on the providers doc. Once again, it's the same tactic of trying to equate a basic and general question with a personal attack against individual panelists/examiners. Somehow, I doubt that the recipients of this survey will faint with outrage at the temerity of being asked about their conflict of interest procedures. The question does not presume that they are acting in an improper manner - it asks how they're acting. If they have proper conflict procedures in place, I can't believe they would be shy about saying as much. I also see the same arguments that the responses will be meaningless or frivolous (which is funny, considering how people are fighting tooth and nail to exclude the line of inquiry), and the same protests against imagined policy debates that might flow from the information. And, buried amidst the hyperbole, are a few substantive claims addressing the wording of these questions. So why don't we all save a bit of time and focus on how the questions can be improved to be better targeted and accurate? I've made a couple of suggested edits, based on Greg's objections. It would be great to try and build forward with actual, constructive suggestions on wording that people can live with. Or we can keep going in circles... Best, Michael On Wed, May 2, 2018 at 1:51 PM, Nahitchevansky, Georges <ghn@kilpatricktownsend.com<mailto:ghn@kilpatricktownsend.com>> wrote: Paul: Your questions are loaded questions that have a bias that panelists are not properly vetting conflicts. As a California attorney you know fully well that your questions go well beyond the norm. When was the last time you were asked to detail your conflict procedures -- apart from when there is an actual challenge by a party claiming a conflict of interest. By the same token as an attorney representing parties in URS and UDRP proceedings you must have done a conflict check. Should we be looking into what all parties do in regards to conflict checks. Attorneys are not asked because they are are covered by an ethical obligation and unless someone challenges on the ground of conflict it is presumed that they did a proper check. Similarly, Judges all over the world are presumed to have done a conflict check and to recuse themselves if a conflict exists. When is the last you asked a judge to explain what they did and what procedures they have in place before taking on a case. You presume they conducted a proper check and challenge if you believe a conflict of interest. The same should apply in the URS context. URS panelists should not be put into a separate category that goes beyond what attorneys and judges do. The panelists typicallly attest to the fact that they have no conflict. If someone feels otherwise, they can always challenge the panelist appointment. The bottom line is that this entire issue you are trying to inject here is part and parcel of some notion that panelists are not acting in an impartial manner ias required by the URS rules. The questions of such whether panelists are acting impartially should be directed to the providers, who can answer more appropriately on this issue and what they require of panelists. One other basic problem with your questions, is that many answers will be meaningless as they will simply be yes we have appropriate procedures in place. You may get a handful of more detailed responses, but then we will be arguing for months on end about whether procedures are sufficient or not etc. We are not here to rewrite the procedures firms take to run conflict checks. Again, the issue is about having impartial panelists and what steps are taken to make sure that is the case. As in my judge example above, if you were going to go down this path of inquiry you would ask a judicial commission to advise on what they do to have impartial judges. That is the more relevant and productive inquiry. So again I stress that these questions should be removed. Lastly, I am glad you agree that there should be ramifications for attorneys or others acting for parties for filing false statements, supporting parties that hide behind bogus contact information, or fail to disclose their own interests in a matter. Maybe we should ask practitioners if they feel their should be meaningful sanctions for such behavior and the type of sanctions. From: Paul@law.es<mailto:Paul@law.es> Sent: May 2, 2018 10:39 AM To: ghn@kilpatricktownsend.com<mailto:ghn@kilpatricktownsend.com>; gregshatanipc@gmail.com<mailto:gregshatanipc@gmail.com>; julie.hedlund@icann.org<mailto:julie.hedlund@icann.org> Cc: gnso-rpm-wg@icann.org<mailto:gnso-rpm-wg@icann.org> Subject: Re: [gnso-rpm-wg] REMINDER: Proposed agenda for RPM Working Group call on 25 April 2018 at 1700 UTC Sorry but I do not see what you see. The questions are neutral questions asking for a fact-based reply. They do not presume anything. This is clear from reading the qualifying questions at issue. Regarding some panelists not being attorneys, I have several responses. Primarily, given that the UDRP/URS is founded in legal principles, I question the use of those without legal training. Further, conflicts checking is not limited to attorneys. Regarding your suggestion that attorneys confirm who they are representing when domains use false WHOIS data or privacy, rest assured. There are plenty of rules and regulations that require an attorney to verify the identity of clients – the least of which are the regulations concerning money laundering. Regarding the fact-checking, I am fine with your suggestion - as long as it applies to both complainants and to respondents. Personally, I am troubled by the fact that representatives can even provide a certification when they themselves have no personal knowledge. I presume that allowing such a process in the UDRP/URS space grew out of the trademark practice (where providing such certifications to the registration authorities is a common practice). However, if you want to change it that is fine with me – as long as it applies to both sides. As to the proposal to limit inquiry to those clearly provided under the rules, that is not consistent with our marching orders. In fact if we took that approach to everything we would be left without much to investigate. To conclude, I would submit that it is really your comments that are the loaded ones and intended to prevent an inquiry into a legitimate issue. Paul From: gnso-rpm-wg <gnso-rpm-wg-bounces@icann.org<mailto:gnso-rpm-wg-bounces@icann.org>> on behalf of Georges Nahitchevansky <ghn@kilpatricktownsend.com<mailto:ghn@kilpatricktownsend.com>> Date: Wednesday, May 2, 2018 at 2:28 PM To: Greg Shatan <gregshatanipc@gmail.com<mailto:gregshatanipc@gmail.com>>, Julie Hedlund <julie.hedlund@icann.org<mailto:julie.hedlund@icann.org>> Cc: "gnso-rpm-wg@icann.org<mailto:gnso-rpm-wg@icann.org>" <gnso-rpm-wg@icann.org<mailto:gnso-rpm-wg@icann.org>> Subject: Re: [gnso-rpm-wg] REMINDER: Proposed agenda for RPM Working Group call on 25 April 2018 at 1700 UTC Dear All: Below are the questions being referred to. I likewise object to these questions which have an underlying assumption that Panelists are somehow biased and don’t screen conflicts properly. It also assumes that the panelists are all attorneys at law firms and the law firms do not have proper screening mechanisms for conflicts. Simply put, most of these questions are loaded questions that are meant to further a particular agenda. If we are going to go down the route of these type of loaded questions, should we also be asking about attorneys, for example, who represent parties that registered names with bogus contact information whether they conducted a thorough check so that they can certify that they truthfully identified the party they are representing and how they conducted that check (e.g., what mechanisms are in place and all steps taken). After all the ethical rules make clear that attorneys are bound by requirements that attorneys be truthful. In that vein, should we also ask whether the attorneys representing parties have been truthful and checked the facts that they are stating in their papers – and what steps they take to certify and insure this. I can think of several examples I personally know of where an attorney simply lied in the submissions. Should this now be an entire line of inquiry. Should we ask whether Rule 11 type sanctions be available in URS cases where an attorney representing a party is found to represent a party with fake contact information or has lied in the papers. I can think of many more loaded lines of inquiries if that what some want to do, but ultimately I don’t think these are going to be productive in moving the ball forward. In light of the questions that were suggested on the provider side of things, I think the only issue to raise is whether Panelists are impartial per the requirements of the rules and what providers do to make sure that is the case – and nothing more, . These questions should not be here and should be deleted in their entirety 4. Do you serve as a URS panelist? A. Yes B. No 5. If yes, do you undertake a law firm-wide conflicts check to verify that neither you nor your law firm has any actual or potentially adverse conflict of interest to the complainant and/or respondent? A. Yes B. No If yes, please briefly describe the methods used to verify the absence of conflicts:___________________________________________________’ If yes, do you retain records of your search? A. Yes B. No 6. Have you ever communicated with a third party regarding an ongoing URS dispute in which you were a panelist? A. Yes B. No If yes, please briefly explain the nature of such communications:_________________________ From: gnso-rpm-wg [mailto:gnso-rpm-wg-bounces@icann.org] On Behalf Of Greg Shatan Sent: Wednesday, May 2, 2018 1:05 AM To: Julie Hedlund <julie.hedlund@icann.org<mailto:julie.hedlund@icann.org>> Cc: gnso-rpm-wg@icann.org<mailto:gnso-rpm-wg@icann.org> Subject: Re: [gnso-rpm-wg] REMINDER: Proposed agenda for RPM Working Group call on 25 April 2018 at 1700 UTC All, I have significant objections to the questions to Examiners that were tacked on to the end of the Practitioners questionnaire at the 11th hour. Apologies for not focusing on this before now. I don't believe these have really been properly reviewed or discussed. I believe these questions are inappropriate in a poll of practitioners, as these are questions directed to "panelists." (The proper term is Examiner....) It feels like a "bait and switch" tactic. If we are going to survey Examiners, let's survey Examiners -- not ambush practitioners. On that basis alone, we should eliminate these questions. I am also troubled by the questions themselves. Singling out these questions, out of all that we might ask Examiners, seems vaguely accusatory. The basis for these questions is questionable. I've reviewed the URS Procedures and Rules, and none of these questions comes out of a Procedure or Rule. The Examiners are supposed to declare conflicts of interest, but there is no instruction on how to implement that. As such, there is no requirement that an Examiner undertake any type of conflicts check much less something as specific as "a law firm-wide conflicts check to verify that neither you nor your law firm has any actual or potentially adverse conflict of interest to the complainant and/or respondent." Asking the question implies that this is an imperative when it is not. On top of that, this verbiage does not accurately describe a conflict check. What is a "potentially adverse conflict of interest"? Why is it only asking about adverse conflicts? I note that the Forum does have a Supplementary Rule that "A Examiner will be disqualified if circumstances exist that create a conflict of interest or cause the Examiner to be unfair and biased, including but not limited to ... The Examiner has served as an attorney to any party or the Examiner has been associated with an attorney who has represented a party during that association." This does not ask the Examiner to run a conflict check, but notably, the issue it raises is the exact opposite of the issue implied in these proposed questions -- the Forum is highlighting representing a party, not being adverse (much less "potentially adverse) to a party. Now, I'm not saying it's a bad idea for an Examiner to run a (properly defined) conflict check, but the very fact that we are debating Examiner actions and requirements in a practitioners poll should tell us we're in the wrong place. For that reason, I will not discuss the problems in the follow-up questions on conflict checks. The final question is even worse. ("Have you ever communicated with a third party regarding an ongoing URS dispute in which you were a panelist?') As far as I know, this is not prohibited behavior, especially not this broadly described. It seems designed to make people feel like they might have done something wrong. (If this is expressly prohibited by the Rules or Procedures, then perhaps we could fashion a question out of that Rule/Procedure if we were putting together a poll for Examiners.) Is it improper to "communicate" with your spouse about a URS case? With one of your law partners? With a fellow Examiner? Long story short, these questions should be deleted. Greg On Tue, May 1, 2018 at 10:15 AM, Julie Hedlund <julie.hedlund@icann.org<mailto:julie.hedlund@icann.org>> wrote: Dear RPM PDP WG members, Per the WG Co-Chairs, here is the proposed agenda for the Working Group call Wednesday, 02 May 2018, scheduled for 1700 UTC. Times are proposed as estimates and may be adjusted. Proposed Agenda: 1. Roll call and updates to Statements of Interest (1 minute) 2. Final Status of Questions for Practitioners and Providers (9 minutes) 3. Report from the Documents Sub Team (20 minutes) 4. Discussion on URS Phase II proposal (59 minutes) See John McElwaine’s original email at: http://mm.icann.org/pipermail/gnso-rpm-wg/2018-April/002857.html and a Google Sheet with the proposal as tab one, and the responses as tab two at: https://docs.google.com/spreadsheets/d/1apbVrFayn_vbPfhKDpjYs66iBWjvwhWFGZbu... 5. Notice of agenda for 09 May meeting (1 minute) Best regards, Mary, Julie, Ariel and Berry _______________________________________________ gnso-rpm-wg mailing list gnso-rpm-wg@icann.org<mailto:gnso-rpm-wg@icann.org> https://mm.icann.org/mailman/listinfo/gnso-rpm-wg ________________________________ Confidentiality Notice: This communication constitutes an electronic communication within the meaning of the Electronic Communications Privacy Act, 18 U.S.C. Section 2510, and its disclosure is strictly limited to the recipient intended by the sender of this message. This transmission, and any attachments, may contain confidential attorney-client privileged information and attorney work product. If you are not the intended recipient, any disclosure, copying, distribution or use of any of the information contained in or attached to this transmission is STRICTLY PROHIBITED. Please contact us immediately by return e-mail or at 404 815 6500<tel:4048156500>, and destroy the original transmission and its attachments without reading or saving in any manner. ________________________________ ***DISCLAIMER*** Per Treasury Department Circular 230: Any U.S. federal tax advice contained in this communication (including any attachments) is not intended or written to be used, and cannot be used, for the purpose of (i) avoiding penalties under the Internal Revenue Code or (ii) promoting, marketing or recommending to another party any transaction or matter addressed herein. _______________________________________________ gnso-rpm-wg mailing list gnso-rpm-wg@icann.org<mailto:gnso-rpm-wg@icann.org> https://mm.icann.org/mailman/listinfo/gnso-rpm-wg _______________________________________________ gnso-rpm-wg mailing list gnso-rpm-wg@icann.org<mailto:gnso-rpm-wg@icann.org> https://mm.icann.org/mailman/listinfo/gnso-rpm-wg
Your true colors are showing. You are simply repeating a mantra that is based upon subjectively flawed and illogical presumptions. I believe you have an ulterior motive of simply delaying things. If you have some suggested questions please present them. Otherwise I will simply ignore your comments. Paul From: gnso-rpm-wg <gnso-rpm-wg-bounces@icann.org> on behalf of Georges Nahitchevansky <ghn@kilpatricktownsend.com> Date: Thursday, May 3, 2018 at 4:23 AM To: Michael Karanicolas <mkaranicolas@gmail.com>, "Corwin, Philip via gnso-rpm-wg" <gnso-rpm-wg@icann.org> Subject: Re: [gnso-rpm-wg] REMINDER: Proposed agenda for RPM Working Group call on 25 April 2018 at 1700 UTC
Yes it is incredible that some want to include loaded and biased questions that are full of assumptions. In that vein, should we ask practitioners if they have ever lied in the papers they submitted in a matter and what specific steps they take to make sure that what they say is truthful. How about a question to practitioners about whether they have ever orchestrated measures beyond an appeal to deprive a successful claimant from being able to secure a domain name won in a proceeding. The point is that there are many loaded questions full of assumptions that can be asked to create issues to further an agenda. a better way of approaching the issue of impartiality without throwing out questions that assume a wrong exists is to simply focus on the concept of impartiality per the Rules as opposed to crafting and revising questions that have underlying assumptions not grounded in the rules. What would have been great is if the folks that posit these 11th hour questions had bothered to join the subgroups who worked very hard to get a set of questions that would be answered. Sweeping in at the 11th hour with these loaded questions, and when there is limited opportunity to discuss, is not productive. If it was that important of an issue you would think that these folks would have joined the groups and raised these issues. They didn't so I really ask why the loaded questions at this point.
From: gnso-rpm-wg [mailto:gnso-rpm-wg-bounces@icann.org] On Behalf Of Michael Karanicolas Sent: Wednesday, May 2, 2018 4:57 PM To: Corwin, Philip via gnso-rpm-wg <gnso-rpm-wg@icann.org> Subject: Re: [gnso-rpm-wg] REMINDER: Proposed agenda for RPM Working Group call on 25 April 2018 at 1700 UTC
Incredible. This looks like the exact same kabuki we just went through on the providers doc.
Once again, it's the same tactic of trying to equate a basic and general question with a personal attack against individual panelists/examiners. Somehow, I doubt that the recipients of this survey will faint with outrage at the temerity of being asked about their conflict of interest procedures. The question does not presume that they are acting in an improper manner - it asks how they're acting. If they have proper conflict procedures in place, I can't believe they would be shy about saying as much.
I also see the same arguments that the responses will be meaningless or frivolous (which is funny, considering how people are fighting tooth and nail to exclude the line of inquiry), and the same protests against imagined policy debates that might flow from the information.
And, buried amidst the hyperbole, are a few substantive claims addressing the wording of these questions. So why don't we all save a bit of time and focus on how the questions can be improved to be better targeted and accurate? I've made a couple of suggested edits, based on Greg's objections. It would be great to try and build forward with actual, constructive suggestions on wording that people can live with.
Or we can keep going in circles...
Best,
Michael
On Wed, May 2, 2018 at 1:51 PM, Nahitchevansky, Georges <ghn@kilpatricktownsend.com> wrote:
Paul:
Your questions are loaded questions that have a bias that panelists are not properly vetting conflicts. As a California attorney you know fully well that your questions go well beyond the norm. When was the last time you were asked to detail your conflict procedures -- apart from when there is an actual challenge by a party claiming a conflict of interest. By the same token as an attorney representing parties in URS and UDRP proceedings you must have done a conflict check. Should we be looking into what all parties do in regards to conflict checks. Attorneys are not asked because they are are covered by an ethical obligation and unless someone challenges on the ground of conflict it is presumed that they did a proper check. Similarly, Judges all over the world are presumed to have done a conflict check and to recuse themselves if a conflict exists. When is the last you asked a judge to explain what they did and what procedures they have in place before taking on a case. You presume they conducted a proper check and challenge if you believe a conflict of interest. The same should apply in the URS context. URS panelists should not be put into a separate category that goes beyond what attorneys and judges do. The panelists typicallly attest to the fact that they have no conflict. If someone feels otherwise, they can always challenge the panelist appointment.
The bottom line is that this entire issue you are trying to inject here is part and parcel of some notion that panelists are not acting in an impartial manner ias required by the URS rules. The questions of such whether panelists are acting impartially should be directed to the providers, who can answer more appropriately on this issue and what they require of panelists.
One other basic problem with your questions, is that many answers will be meaningless as they will simply be yes we have appropriate procedures in place. You may get a handful of more detailed responses, but then we will be arguing for months on end about whether procedures are sufficient or not etc. We are not here to rewrite the procedures firms take to run conflict checks. Again, the issue is about having impartial panelists and what steps are taken to make sure that is the case. As in my judge example above, if you were going to go down this path of inquiry you would ask a judicial commission to advise on what they do to have impartial judges. That is the more relevant and productive inquiry. So again I stress that these questions should be removed.
Lastly, I am glad you agree that there should be ramifications for attorneys or others acting for parties for filing false statements, supporting parties that hide behind bogus contact information, or fail to disclose their own interests in a matter. Maybe we should ask practitioners if they feel their should be meaningful sanctions for such behavior and the type of sanctions.
From:Paul@law.es <mailto:Paul@law.es> Sent: May 2, 2018 10:39 AM To:ghn@kilpatricktownsend.com <mailto:ghn@kilpatricktownsend.com> ; gregshatanipc@gmail.com <mailto:gregshatanipc@gmail.com> ; julie.hedlund@icann.org <mailto:julie.hedlund@icann.org> Cc:gnso-rpm-wg@icann.org <mailto:gnso-rpm-wg@icann.org> Subject: Re: [gnso-rpm-wg] REMINDER: Proposed agenda for RPM Working Group call on 25 April 2018 at 1700 UTC
Sorry but I do not see what you see.
The questions are neutral questions asking for a fact-based reply. They do not presume anything. This is clear from reading the qualifying questions at issue.
Regarding some panelists not being attorneys, I have several responses. Primarily, given that the UDRP/URS is founded in legal principles, I question the use of those without legal training. Further, conflicts checking is not limited to attorneys.
Regarding your suggestion that attorneys confirm who they are representing when domains use false WHOIS data or privacy, rest assured. There are plenty of rules and regulations that require an attorney to verify the identity of clients the least of which are the regulations concerning money laundering.
Regarding the fact-checking, I am fine with your suggestion - as long as it applies to both complainants and to respondents. Personally, I am troubled by the fact that representatives can even provide a certification when they themselves have no personal knowledge. I presume that allowing such a process in the UDRP/URS space grew out of the trademark practice (where providing such certifications to the registration authorities is a common practice). However, if you want to change it that is fine with me as long as it applies to both sides.
As to the proposal to limit inquiry to those clearly provided under the rules, that is not consistent with our marching orders. In fact if we took that approach to everything we would be left without much to investigate.
To conclude, I would submit that it is really your comments that are the loaded ones and intended to prevent an inquiry into a legitimate issue.
Paul
From: gnso-rpm-wg <gnso-rpm-wg-bounces@icann.org <mailto:gnso-rpm-wg-bounces@icann.org> > on behalf of Georges Nahitchevansky <ghn@kilpatricktownsend.com <mailto:ghn@kilpatricktownsend.com> > Date: Wednesday, May 2, 2018 at 2:28 PM To: Greg Shatan <gregshatanipc@gmail.com <mailto:gregshatanipc@gmail.com> >, Julie Hedlund <julie.hedlund@icann.org <mailto:julie.hedlund@icann.org> > Cc: "gnso-rpm-wg@icann.org <mailto:gnso-rpm-wg@icann.org> " <gnso-rpm-wg@icann.org <mailto:gnso-rpm-wg@icann.org> > Subject: Re: [gnso-rpm-wg] REMINDER: Proposed agenda for RPM Working Group call on 25 April 2018 at 1700 UTC
Dear All:
Below are the questions being referred to. I likewise object to these questions which have an underlying assumption that Panelists are somehow biased and don¹t screen conflicts properly. It also assumes that the panelists are all attorneys at law firms and the law firms do not have proper screening mechanisms for conflicts. Simply put, most of these questions are loaded questions that are meant to further a particular agenda. If we are going to go down the route of these type of loaded questions, should we also be asking about attorneys, for example, who represent parties that registered names with bogus contact information whether they conducted a thorough check so that they can certify that they truthfully identified the party they are representing and how they conducted that check (e.g., what mechanisms are in place and all steps taken). After all the ethical rules make clear that attorneys are bound by requirements that attorneys be truthful. In that vein, should we also ask whether the attorneys representing parties have been truthful and checked the facts that they are stating in their papers and what steps they take to certify and insure this. I can think of several examples I personally know of where an attorney simply lied in the submissions. Should this now be an entire line of inquiry. Should we ask whether Rule 11 type sanctions be available in URS cases where an attorney representing a party is found to represent a party with fake contact information or has lied in the papers. I can think of many more loaded lines of inquiries if that what some want to do, but ultimately I don¹t think these are going to be productive in moving the ball forward.
In light of the questions that were suggested on the provider side of things, I think the only issue to raise is whether Panelists are impartial per the requirements of the rules and what providers do to make sure that is the case and nothing more, . These questions should not be here and should be deleted in their entirety
4. Do you serve as a URS panelist?
A. Yes B. No
5. If yes, do you undertake a law firm-wide conflicts check to verify that neither you nor your law firm has any actual or potentially adverse conflict of interest to the complainant and/or respondent?
A. Yes B. No
If yes, please briefly describe the methods used to verify the absence of conflicts:___________________________________________________¹
If yes, do you retain records of your search?
A. Yes B. No
6. Have you ever communicated with a third party regarding an ongoing URS dispute in which you were a panelist?
A. Yes B. No
If yes, please briefly explain the nature of such communications:_________________________
From: gnso-rpm-wg [mailto:gnso-rpm-wg-bounces@icann.org <mailto:gnso-rpm-wg-bounces@icann.org> ] On Behalf Of Greg Shatan Sent: Wednesday, May 2, 2018 1:05 AM To: Julie Hedlund <julie.hedlund@icann.org <mailto:julie.hedlund@icann.org>
Cc: gnso-rpm-wg@icann.org <mailto:gnso-rpm-wg@icann.org> Subject: Re: [gnso-rpm-wg] REMINDER: Proposed agenda for RPM Working Group call on 25 April 2018 at 1700 UTC
All,
I have significant objections to the questions to Examiners that were tacked on to the end of the Practitioners questionnaire at the 11th hour. Apologies for not focusing on this before now. I don't believe these have really been properly reviewed or discussed.
I believe these questions are inappropriate in a poll of practitioners, as these are questions directed to "panelists." (The proper term is Examiner....) It feels like a "bait and switch" tactic. If we are going to survey Examiners, let's survey Examiners -- not ambush practitioners. On that basis alone, we should eliminate these questions.
I am also troubled by the questions themselves. Singling out these questions, out of all that we might ask Examiners, seems vaguely accusatory.
The basis for these questions is questionable. I've reviewed the URS Procedures and Rules, and none of these questions comes out of a Procedure or Rule. The Examiners are supposed to declare conflicts of interest, but there is no instruction on how to implement that. As such, there is no requirement that an Examiner undertake any type of conflicts check much less something as specific as "a law firm-wide conflicts check to verify that neither you nor your law firm has any actual or potentially adverse conflict of interest to the complainant and/or respondent." Asking the question implies that this is an imperative when it is not.
On top of that, this verbiage does not accurately describe a conflict check. What is a "potentially adverse conflict of interest"? Why is it only asking about adverse conflicts? I note that the Forum does have a Supplementary Rule that "A Examiner will be disqualified if circumstances exist that create a conflict of interest or cause the Examiner to be unfair and biased, including but not limited to ... The Examiner has served as an attorney to any party or the Examiner has been associated with an attorney who has represented a party during that association." This does not ask the Examiner to run a conflict check, but notably, the issue it raises is the exact opposite of the issue implied in these proposed questions -- the Forum is highlighting representing a party, not being adverse (much less "potentially adverse) to a party.
Now, I'm not saying it's a bad idea for an Examiner to run a (properly defined) conflict check, but the very fact that we are debating Examiner actions and requirements in a practitioners poll should tell us we're in the wrong place.
For that reason, I will not discuss the problems in the follow-up questions on conflict checks.
The final question is even worse. ("Have you ever communicated with a third party regarding an ongoing URS dispute in which you were a panelist?') As far as I know, this is not prohibited behavior, especially not this broadly described. It seems designed to make people feel like they might have done something wrong. (If this is expressly prohibited by the Rules or Procedures, then perhaps we could fashion a question out of that Rule/Procedure if we were putting together a poll for Examiners.) Is it improper to "communicate" with your spouse about a URS case? With one of your law partners? With a fellow Examiner?
Long story short, these questions should be deleted.
Greg
On Tue, May 1, 2018 at 10:15 AM, Julie Hedlund <julie.hedlund@icann.org <mailto:julie.hedlund@icann.org> > wrote:
Dear RPM PDP WG members,
Per the WG Co-Chairs, here is the proposed agenda for the Working Group call Wednesday, 02 May 2018, scheduled for 1700 UTC. Times are proposed as estimates and may be adjusted.
Proposed Agenda: 1. Roll call and updates to Statements of Interest (1 minute) 2. Final Status of Questions for Practitioners and Providers (9 minutes) 3. Report from the Documents Sub Team (20 minutes) 4. Discussion on URS Phase II proposal (59 minutes) See John McElwaine¹s original email at: http://mm.icann.org/pipermail/gnso-rpm-wg/2018-April/002857.html <http://mm.icann.org/pipermail/gnso-rpm-wg/2018-April/002857.html> and a Google Sheet with the proposal as tab one, and the responses as tab two at: https://docs.google.com/spreadsheets/d/1apbVrFayn_vbPfhKDpjYs66iBWjvwhWFGZb uGpQnOgI/edit?usp=sharing <https://docs.google.com/spreadsheets/d/1apbVrFayn_vbPfhKDpjYs66iBWjvwhWFGZ buGpQnOgI/edit?usp=sharing> 5. Notice of agenda for 09 May meeting (1 minute)
Best regards, Mary, Julie, Ariel and Berry
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Paul: You obviously misunderstand the whole point that is being made. We have questions that are ready to go and you and couple of others suddenly pop up with last minute additions that have built in biases. The point that is being made is really quite simple. The issue is whether the URS panelists appointed are impartial. That is what the inquiry should be focused on. My comments are meant to show that anyone could come up with loaded questions - and I provided a couple of examples that you might be able to understand. As I said, these types of questions are not productive and will likely turn people off to the survey. So in my view these type of questions should be avoided and should not be included in the practitioner or provider surveys. Questions regarding impartiality and how providers assure such should be in the provider section - and has been discussed by folks already. rom: Paul Keating [mailto:Paul@law.es] Sent: Thursday, May 3, 2018 8:45 AM To: Nahitchevansky, Georges <ghn@kilpatricktownsend.com>; Michael Karanicolas <mkaranicolas@gmail.com>; Corwin, Philip via gnso-rpm-wg <gnso-rpm-wg@icann.org> Subject: Re: [gnso-rpm-wg] REMINDER: Proposed agenda for RPM Working Group call on 25 April 2018 at 1700 UTC Your true colors are showing. You are simply repeating a mantra that is based upon subjectively flawed and illogical presumptions. I believe you have an ulterior motive of simply delaying things. If you have some suggested questions please present them. Otherwise I will simply ignore your comments. Paul From: gnso-rpm-wg <gnso-rpm-wg-bounces@icann.org<mailto:gnso-rpm-wg-bounces@icann.org>> on behalf of Georges Nahitchevansky <ghn@kilpatricktownsend.com<mailto:ghn@kilpatricktownsend.com>> Date: Thursday, May 3, 2018 at 4:23 AM To: Michael Karanicolas <mkaranicolas@gmail.com<mailto:mkaranicolas@gmail.com>>, "Corwin, Philip via gnso-rpm-wg" <gnso-rpm-wg@icann.org<mailto:gnso-rpm-wg@icann.org>> Subject: Re: [gnso-rpm-wg] REMINDER: Proposed agenda for RPM Working Group call on 25 April 2018 at 1700 UTC Yes it is incredible that some want to include loaded and biased questions that are full of assumptions. In that vein, should we ask practitioners if they have ever lied in the papers they submitted in a matter and what specific steps they take to make sure that what they say is truthful. How about a question to practitioners about whether they have ever orchestrated measures beyond an appeal to deprive a successful claimant from being able to secure a domain name won in a proceeding. The point is that there are many loaded questions full of assumptions that can be asked to create issues to further an agenda. a better way of approaching the issue of impartiality without throwing out questions that assume a wrong exists is to simply focus on the concept of impartiality per the Rules as opposed to crafting and revising questions that have underlying assumptions not grounded in the rules. What would have been great is if the folks that posit these 11th hour questions had bothered to join the subgroups who worked very hard to get a set of questions that would be answered. Sweeping in at the 11th hour with these loaded questions, and when there is limited opportunity to discuss, is not productive. If it was that important of an issue you would think that these folks would have joined the groups and raised these issues. They didn't so I really ask why the loaded questions at this point. From: gnso-rpm-wg [mailto:gnso-rpm-wg-bounces@icann.org<mailto:gnso-rpm-wg-bounces@icann.org>] On Behalf Of Michael Karanicolas Sent: Wednesday, May 2, 2018 4:57 PM To: Corwin, Philip via gnso-rpm-wg <gnso-rpm-wg@icann.org<mailto:gnso-rpm-wg@icann.org>> Subject: Re: [gnso-rpm-wg] REMINDER: Proposed agenda for RPM Working Group call on 25 April 2018 at 1700 UTC Incredible. This looks like the exact same kabuki we just went through on the providers doc. Once again, it's the same tactic of trying to equate a basic and general question with a personal attack against individual panelists/examiners. Somehow, I doubt that the recipients of this survey will faint with outrage at the temerity of being asked about their conflict of interest procedures. The question does not presume that they are acting in an improper manner - it asks how they're acting. If they have proper conflict procedures in place, I can't believe they would be shy about saying as much. I also see the same arguments that the responses will be meaningless or frivolous (which is funny, considering how people are fighting tooth and nail to exclude the line of inquiry), and the same protests against imagined policy debates that might flow from the information. And, buried amidst the hyperbole, are a few substantive claims addressing the wording of these questions. So why don't we all save a bit of time and focus on how the questions can be improved to be better targeted and accurate? I've made a couple of suggested edits, based on Greg's objections. It would be great to try and build forward with actual, constructive suggestions on wording that people can live with. Or we can keep going in circles... Best, Michael On Wed, May 2, 2018 at 1:51 PM, Nahitchevansky, Georges <ghn@kilpatricktownsend.com<mailto:ghn@kilpatricktownsend.com>> wrote: Paul: Your questions are loaded questions that have a bias that panelists are not properly vetting conflicts. As a California attorney you know fully well that your questions go well beyond the norm. When was the last time you were asked to detail your conflict procedures -- apart from when there is an actual challenge by a party claiming a conflict of interest. By the same token as an attorney representing parties in URS and UDRP proceedings you must have done a conflict check. Should we be looking into what all parties do in regards to conflict checks. Attorneys are not asked because they are are covered by an ethical obligation and unless someone challenges on the ground of conflict it is presumed that they did a proper check. Similarly, Judges all over the world are presumed to have done a conflict check and to recuse themselves if a conflict exists. When is the last you asked a judge to explain what they did and what procedures they have in place before taking on a case. You presume they conducted a proper check and challenge if you believe a conflict of interest. The same should apply in the URS context. URS panelists should not be put into a separate category that goes beyond what attorneys and judges do. The panelists typicallly attest to the fact that they have no conflict. If someone feels otherwise, they can always challenge the panelist appointment. The bottom line is that this entire issue you are trying to inject here is part and parcel of some notion that panelists are not acting in an impartial manner ias required by the URS rules. The questions of such whether panelists are acting impartially should be directed to the providers, who can answer more appropriately on this issue and what they require of panelists. One other basic problem with your questions, is that many answers will be meaningless as they will simply be yes we have appropriate procedures in place. You may get a handful of more detailed responses, but then we will be arguing for months on end about whether procedures are sufficient or not etc. We are not here to rewrite the procedures firms take to run conflict checks. Again, the issue is about having impartial panelists and what steps are taken to make sure that is the case. As in my judge example above, if you were going to go down this path of inquiry you would ask a judicial commission to advise on what they do to have impartial judges. That is the more relevant and productive inquiry. So again I stress that these questions should be removed. Lastly, I am glad you agree that there should be ramifications for attorneys or others acting for parties for filing false statements, supporting parties that hide behind bogus contact information, or fail to disclose their own interests in a matter. Maybe we should ask practitioners if they feel their should be meaningful sanctions for such behavior and the type of sanctions. From:Paul@law.es<mailto:Paul@law.es> Sent: May 2, 2018 10:39 AM To:ghn@kilpatricktownsend.com<mailto:ghn@kilpatricktownsend.com>; gregshatanipc@gmail.com<mailto:gregshatanipc@gmail.com>; julie.hedlund@icann.org<mailto:julie.hedlund@icann.org> Cc:gnso-rpm-wg@icann.org<mailto:gnso-rpm-wg@icann.org> Subject: Re: [gnso-rpm-wg] REMINDER: Proposed agenda for RPM Working Group call on 25 April 2018 at 1700 UTC Sorry but I do not see what you see. The questions are neutral questions asking for a fact-based reply. They do not presume anything. This is clear from reading the qualifying questions at issue. Regarding some panelists not being attorneys, I have several responses. Primarily, given that the UDRP/URS is founded in legal principles, I question the use of those without legal training. Further, conflicts checking is not limited to attorneys. Regarding your suggestion that attorneys confirm who they are representing when domains use false WHOIS data or privacy, rest assured. There are plenty of rules and regulations that require an attorney to verify the identity of clients - the least of which are the regulations concerning money laundering. Regarding the fact-checking, I am fine with your suggestion - as long as it applies to both complainants and to respondents. Personally, I am troubled by the fact that representatives can even provide a certification when they themselves have no personal knowledge. I presume that allowing such a process in the UDRP/URS space grew out of the trademark practice (where providing such certifications to the registration authorities is a common practice). However, if you want to change it that is fine with me - as long as it applies to both sides. As to the proposal to limit inquiry to those clearly provided under the rules, that is not consistent with our marching orders. In fact if we took that approach to everything we would be left without much to investigate. To conclude, I would submit that it is really your comments that are the loaded ones and intended to prevent an inquiry into a legitimate issue. Paul From: gnso-rpm-wg <gnso-rpm-wg-bounces@icann.org<mailto:gnso-rpm-wg-bounces@icann.org>> on behalf of Georges Nahitchevansky <ghn@kilpatricktownsend.com<mailto:ghn@kilpatricktownsend.com>> Date: Wednesday, May 2, 2018 at 2:28 PM To: Greg Shatan <gregshatanipc@gmail.com<mailto:gregshatanipc@gmail.com>>, Julie Hedlund <julie.hedlund@icann.org<mailto:julie.hedlund@icann.org>> Cc: "gnso-rpm-wg@icann.org<mailto:gnso-rpm-wg@icann.org>" <gnso-rpm-wg@icann.org<mailto:gnso-rpm-wg@icann.org>> Subject: Re: [gnso-rpm-wg] REMINDER: Proposed agenda for RPM Working Group call on 25 April 2018 at 1700 UTC Dear All: Below are the questions being referred to. I likewise object to these questions which have an underlying assumption that Panelists are somehow biased and don't screen conflicts properly. It also assumes that the panelists are all attorneys at law firms and the law firms do not have proper screening mechanisms for conflicts. Simply put, most of these questions are loaded questions that are meant to further a particular agenda. If we are going to go down the route of these type of loaded questions, should we also be asking about attorneys, for example, who represent parties that registered names with bogus contact information whether they conducted a thorough check so that they can certify that they truthfully identified the party they are representing and how they conducted that check (e.g., what mechanisms are in place and all steps taken). After all the ethical rules make clear that attorneys are bound by requirements that attorneys be truthful. In that vein, should we also ask whether the attorneys representing parties have been truthful and checked the facts that they are stating in their papers - and what steps they take to certify and insure this. I can think of several examples I personally know of where an attorney simply lied in the submissions. Should this now be an entire line of inquiry. Should we ask whether Rule 11 type sanctions be available in URS cases where an attorney representing a party is found to represent a party with fake contact information or has lied in the papers. I can think of many more loaded lines of inquiries if that what some want to do, but ultimately I don't think these are going to be productive in moving the ball forward. In light of the questions that were suggested on the provider side of things, I think the only issue to raise is whether Panelists are impartial per the requirements of the rules and what providers do to make sure that is the case - and nothing more, . These questions should not be here and should be deleted in their entirety 4. Do you serve as a URS panelist? A. Yes B. No 5. If yes, do you undertake a law firm-wide conflicts check to verify that neither you nor your law firm has any actual or potentially adverse conflict of interest to the complainant and/or respondent? A. Yes B. No If yes, please briefly describe the methods used to verify the absence of conflicts:___________________________________________________' If yes, do you retain records of your search? A. Yes B. No 6. Have you ever communicated with a third party regarding an ongoing URS dispute in which you were a panelist? A. Yes B. No If yes, please briefly explain the nature of such communications:_________________________ From: gnso-rpm-wg [mailto:gnso-rpm-wg-bounces@icann.org] On Behalf Of Greg Shatan Sent: Wednesday, May 2, 2018 1:05 AM To: Julie Hedlund <julie.hedlund@icann.org<mailto:julie.hedlund@icann.org>> Cc: gnso-rpm-wg@icann.org<mailto:gnso-rpm-wg@icann.org> Subject: Re: [gnso-rpm-wg] REMINDER: Proposed agenda for RPM Working Group call on 25 April 2018 at 1700 UTC All, I have significant objections to the questions to Examiners that were tacked on to the end of the Practitioners questionnaire at the 11th hour. Apologies for not focusing on this before now. I don't believe these have really been properly reviewed or discussed. I believe these questions are inappropriate in a poll of practitioners, as these are questions directed to "panelists." (The proper term is Examiner....) It feels like a "bait and switch" tactic. If we are going to survey Examiners, let's survey Examiners -- not ambush practitioners. On that basis alone, we should eliminate these questions. I am also troubled by the questions themselves. Singling out these questions, out of all that we might ask Examiners, seems vaguely accusatory. The basis for these questions is questionable. I've reviewed the URS Procedures and Rules, and none of these questions comes out of a Procedure or Rule. The Examiners are supposed to declare conflicts of interest, but there is no instruction on how to implement that. As such, there is no requirement that an Examiner undertake any type of conflicts check much less something as specific as "a law firm-wide conflicts check to verify that neither you nor your law firm has any actual or potentially adverse conflict of interest to the complainant and/or respondent." Asking the question implies that this is an imperative when it is not. On top of that, this verbiage does not accurately describe a conflict check. What is a "potentially adverse conflict of interest"? Why is it only asking about adverse conflicts? I note that the Forum does have a Supplementary Rule that "A Examiner will be disqualified if circumstances exist that create a conflict of interest or cause the Examiner to be unfair and biased, including but not limited to ... The Examiner has served as an attorney to any party or the Examiner has been associated with an attorney who has represented a party during that association." This does not ask the Examiner to run a conflict check, but notably, the issue it raises is the exact opposite of the issue implied in these proposed questions -- the Forum is highlighting representing a party, not being adverse (much less "potentially adverse) to a party. Now, I'm not saying it's a bad idea for an Examiner to run a (properly defined) conflict check, but the very fact that we are debating Examiner actions and requirements in a practitioners poll should tell us we're in the wrong place. For that reason, I will not discuss the problems in the follow-up questions on conflict checks. The final question is even worse. ("Have you ever communicated with a third party regarding an ongoing URS dispute in which you were a panelist?') As far as I know, this is not prohibited behavior, especially not this broadly described. It seems designed to make people feel like they might have done something wrong. (If this is expressly prohibited by the Rules or Procedures, then perhaps we could fashion a question out of that Rule/Procedure if we were putting together a poll for Examiners.) Is it improper to "communicate" with your spouse about a URS case? With one of your law partners? With a fellow Examiner? Long story short, these questions should be deleted. Greg On Tue, May 1, 2018 at 10:15 AM, Julie Hedlund <julie.hedlund@icann.org<mailto:julie.hedlund@icann.org>> wrote: Dear RPM PDP WG members, Per the WG Co-Chairs, here is the proposed agenda for the Working Group call Wednesday, 02 May 2018, scheduled for 1700 UTC. Times are proposed as estimates and may be adjusted. Proposed Agenda: 1. Roll call and updates to Statements of Interest (1 minute) 2. Final Status of Questions for Practitioners and Providers (9 minutes) 3. Report from the Documents Sub Team (20 minutes) 4. Discussion on URS Phase II proposal (59 minutes) See John McElwaine's original email at: http://mm.icann.org/pipermail/gnso-rpm-wg/2018-April/002857.html and a Google Sheet with the proposal as tab one, and the responses as tab two at: https://docs.google.com/spreadsheets/d/1apbVrFayn_vbPfhKDpjYs66iBWjvwhWFGZbu... 5. Notice of agenda for 09 May meeting (1 minute) Best regards, Mary, Julie, Ariel and Berry _______________________________________________ gnso-rpm-wg mailing list gnso-rpm-wg@icann.org<mailto:gnso-rpm-wg@icann.org> https://mm.icann.org/mailman/listinfo/gnso-rpm-wg ________________________________ Confidentiality Notice: This communication constitutes an electronic communication within the meaning of the Electronic Communications Privacy Act, 18 U.S.C. Section 2510, and its disclosure is strictly limited to the recipient intended by the sender of this message. This transmission, and any attachments, may contain confidential attorney-client privileged information and attorney work product. If you are not the intended recipient, any disclosure, copying, distribution or use of any of the information contained in or attached to this transmission is STRICTLY PROHIBITED. Please contact us immediately by return e-mail or at 404 815 6500<tel:4048156500>, and destroy the original transmission and its attachments without reading or saving in any manner. ________________________________ ***DISCLAIMER*** Per Treasury Department Circular 230: Any U.S. federal tax advice contained in this communication (including any attachments) is not intended or written to be used, and cannot be used, for the purpose of (i) avoiding penalties under the Internal Revenue Code or (ii) promoting, marketing or recommending to another party any transaction or matter addressed herein. _______________________________________________ gnso-rpm-wg mailing list gnso-rpm-wg@icann.org<mailto:gnso-rpm-wg@icann.org>https://mm.icann.org/mailman/listinfo/gnso-rpm-wg _______________________________________________ gnso-rpm-wg mailing list gnso-rpm-wg@icann.org<mailto:gnso-rpm-wg@icann.org> https://mm.icann.org/mailman/listinfo/gnso-rpm-wg _______________________________________________ gnso-rpm-wg mailing list gnso-rpm-wg@icann.org<mailto:gnso-rpm-wg@icann.org> https://mm.icann.org/mailman/listinfo/gnso-rpm-wg
You continue to respond by adding still further ³objections². You never seem to be wiling to deal with the ones you have made and I have countered. I can only presume that you have consented on the old objections and are now focusing on those set out below. As to focus, the questions are directed entirely at the issue of impartiality. We have an obligation to investigate and the questions only seek to understand the extent to which panelists check for conflicts. Conflicts checks are SOP for any practicing attorney and are simple to conduct. It would take all of 2 seconds to respond ³yes/no² and if yes simply write a short sentence on the nature of the process (which is not a trade secret). As for turning people off from responding, I cannot imagine it doing so given the simplicity of the questions. There are a limited number of practitioners who would be receiving these surveys and they are all identified in the relevant UDRP/URS decisions that are publicly available. Relying on the Providers does not investigate the extent to which impartiality and the absence of conflicts exist. That is like asking a judge if any of the attorneys had a conflict and the judge informing you ³well I asked them and they said no² I will not reply further to your emails since they just seem to be an attempt to obstruct rather than constructively engage to address the issue. Paul From: Georges Nahitchevansky <ghn@kilpatricktownsend.com> Date: Thursday, May 3, 2018 at 3:04 PM To: Paul Keating <paul@law.es>, Michael Karanicolas <mkaranicolas@gmail.com>, "Corwin, Philip via gnso-rpm-wg" <gnso-rpm-wg@icann.org> Subject: RE: [gnso-rpm-wg] REMINDER: Proposed agenda for RPM Working Group call on 25 April 2018 at 1700 UTC
Paul:
You obviously misunderstand the whole point that is being made. We have questions that are ready to go and you and couple of others suddenly pop up with last minute additions that have built in biases. The point that is being made is really quite simple. The issue is whether the URS panelists appointed are impartial. That is what the inquiry should be focused on. My comments are meant to show that anyone could come up with loaded questions and I provided a couple of examples that you might be able to understand. As I said, these types of questions are not productive and will likely turn people off to the survey. So in my view these type of questions should be avoided and should not be included in the practitioner or provider surveys. Questions regarding impartiality and how providers assure such should be in the provider section and has been discussed by folks already.
rom: Paul Keating [mailto:Paul@law.es] Sent: Thursday, May 3, 2018 8:45 AM To: Nahitchevansky, Georges <ghn@kilpatricktownsend.com>; Michael Karanicolas <mkaranicolas@gmail.com>; Corwin, Philip via gnso-rpm-wg <gnso-rpm-wg@icann.org> Subject: Re: [gnso-rpm-wg] REMINDER: Proposed agenda for RPM Working Group call on 25 April 2018 at 1700 UTC
Your true colors are showing. You are simply repeating a mantra that is based upon subjectively flawed and illogical presumptions. I believe you have an ulterior motive of simply delaying things.
If you have some suggested questions please present them. Otherwise I will simply ignore your comments.
Paul
From: gnso-rpm-wg <gnso-rpm-wg-bounces@icann.org <mailto:gnso-rpm-wg-bounces@icann.org> > on behalf of Georges Nahitchevansky <ghn@kilpatricktownsend.com <mailto:ghn@kilpatricktownsend.com> > Date: Thursday, May 3, 2018 at 4:23 AM To: Michael Karanicolas <mkaranicolas@gmail.com <mailto:mkaranicolas@gmail.com> >, "Corwin, Philip via gnso-rpm-wg" <gnso-rpm-wg@icann.org <mailto:gnso-rpm-wg@icann.org> > Subject: Re: [gnso-rpm-wg] REMINDER: Proposed agenda for RPM Working Group call on 25 April 2018 at 1700 UTC
Yes it is incredible that some want to include loaded and biased questions that are full of assumptions. In that vein, should we ask practitioners if they have ever lied in the papers they submitted in a matter and what specific steps they take to make sure that what they say is truthful. How about a question to practitioners about whether they have ever orchestrated measures beyond an appeal to deprive a successful claimant from being able to secure a domain name won in a proceeding. The point is that there are many loaded questions full of assumptions that can be asked to create issues to further an agenda. a better way of approaching the issue of impartiality without throwing out questions that assume a wrong exists is to simply focus on the concept of impartiality per the Rules as opposed to crafting and revising questions that have underlying assumptions not grounded in the rules. What would have been great is if the folks that posit these 11th hour questions had bothered to join the subgroups who worked very hard to get a set of questions that would be answered. Sweeping in at the 11th hour with these loaded questions, and when there is limited opportunity to discuss, is not productive. If it was that important of an issue you would think that these folks would have joined the groups and raised these issues. They didn't so I really ask why the loaded questions at this point.
From: gnso-rpm-wg [mailto:gnso-rpm-wg-bounces@icann.org <mailto:gnso-rpm-wg-bounces@icann.org> ] On Behalf Of Michael Karanicolas Sent: Wednesday, May 2, 2018 4:57 PM To: Corwin, Philip via gnso-rpm-wg <gnso-rpm-wg@icann.org <mailto:gnso-rpm-wg@icann.org> > Subject: Re: [gnso-rpm-wg] REMINDER: Proposed agenda for RPM Working Group call on 25 April 2018 at 1700 UTC
Incredible. This looks like the exact same kabuki we just went through on the providers doc.
Once again, it's the same tactic of trying to equate a basic and general question with a personal attack against individual panelists/examiners. Somehow, I doubt that the recipients of this survey will faint with outrage at the temerity of being asked about their conflict of interest procedures. The question does not presume that they are acting in an improper manner - it asks how they're acting. If they have proper conflict procedures in place, I can't believe they would be shy about saying as much.
I also see the same arguments that the responses will be meaningless or frivolous (which is funny, considering how people are fighting tooth and nail to exclude the line of inquiry), and the same protests against imagined policy debates that might flow from the information.
And, buried amidst the hyperbole, are a few substantive claims addressing the wording of these questions. So why don't we all save a bit of time and focus on how the questions can be improved to be better targeted and accurate? I've made a couple of suggested edits, based on Greg's objections. It would be great to try and build forward with actual, constructive suggestions on wording that people can live with.
Or we can keep going in circles...
Best,
Michael
On Wed, May 2, 2018 at 1:51 PM, Nahitchevansky, Georges <ghn@kilpatricktownsend.com <mailto:ghn@kilpatricktownsend.com> > wrote:
Paul:
Your questions are loaded questions that have a bias that panelists are not properly vetting conflicts. As a California attorney you know fully well that your questions go well beyond the norm. When was the last time you were asked to detail your conflict procedures -- apart from when there is an actual challenge by a party claiming a conflict of interest. By the same token as an attorney representing parties in URS and UDRP proceedings you must have done a conflict check. Should we be looking into what all parties do in regards to conflict checks. Attorneys are not asked because they are are covered by an ethical obligation and unless someone challenges on the ground of conflict it is presumed that they did a proper check. Similarly, Judges all over the world are presumed to have done a conflict check and to recuse themselves if a conflict exists. When is the last you asked a judge to explain what they did and what procedures they have in place before taking on a case. You presume they conducted a proper check and challenge if you believe a conflict of interest. The same should apply in the URS context. URS panelists should not be put into a separate category that goes beyond what attorneys and judges do. The panelists typicallly attest to the fact that they have no conflict. If someone feels otherwise, they can always challenge the panelist appointment.
The bottom line is that this entire issue you are trying to inject here is part and parcel of some notion that panelists are not acting in an impartial manner ias required by the URS rules. The questions of such whether panelists are acting impartially should be directed to the providers, who can answer more appropriately on this issue and what they require of panelists.
One other basic problem with your questions, is that many answers will be meaningless as they will simply be yes we have appropriate procedures in place. You may get a handful of more detailed responses, but then we will be arguing for months on end about whether procedures are sufficient or not etc. We are not here to rewrite the procedures firms take to run conflict checks. Again, the issue is about having impartial panelists and what steps are taken to make sure that is the case. As in my judge example above, if you were going to go down this path of inquiry you would ask a judicial commission to advise on what they do to have impartial judges. That is the more relevant and productive inquiry. So again I stress that these questions should be removed.
Lastly, I am glad you agree that there should be ramifications for attorneys or others acting for parties for filing false statements, supporting parties that hide behind bogus contact information, or fail to disclose their own interests in a matter. Maybe we should ask practitioners if they feel their should be meaningful sanctions for such behavior and the type of sanctions.
From:Paul@law.es <mailto:Paul@law.es> Sent: May 2, 2018 10:39 AM To:ghn@kilpatricktownsend.com <mailto:ghn@kilpatricktownsend.com> ; gregshatanipc@gmail.com <mailto:gregshatanipc@gmail.com> ; julie.hedlund@icann.org <mailto:julie.hedlund@icann.org> Cc:gnso-rpm-wg@icann.org <mailto:gnso-rpm-wg@icann.org> Subject: Re: [gnso-rpm-wg] REMINDER: Proposed agenda for RPM Working Group call on 25 April 2018 at 1700 UTC
Sorry but I do not see what you see.
The questions are neutral questions asking for a fact-based reply. They do not presume anything. This is clear from reading the qualifying questions at issue.
Regarding some panelists not being attorneys, I have several responses. Primarily, given that the UDRP/URS is founded in legal principles, I question the use of those without legal training. Further, conflicts checking is not limited to attorneys.
Regarding your suggestion that attorneys confirm who they are representing when domains use false WHOIS data or privacy, rest assured. There are plenty of rules and regulations that require an attorney to verify the identity of clients the least of which are the regulations concerning money laundering.
Regarding the fact-checking, I am fine with your suggestion - as long as it applies to both complainants and to respondents. Personally, I am troubled by the fact that representatives can even provide a certification when they themselves have no personal knowledge. I presume that allowing such a process in the UDRP/URS space grew out of the trademark practice (where providing such certifications to the registration authorities is a common practice). However, if you want to change it that is fine with me as long as it applies to both sides.
As to the proposal to limit inquiry to those clearly provided under the rules, that is not consistent with our marching orders. In fact if we took that approach to everything we would be left without much to investigate.
To conclude, I would submit that it is really your comments that are the loaded ones and intended to prevent an inquiry into a legitimate issue.
Paul
From: gnso-rpm-wg <gnso-rpm-wg-bounces@icann.org <mailto:gnso-rpm-wg-bounces@icann.org> > on behalf of Georges Nahitchevansky <ghn@kilpatricktownsend.com <mailto:ghn@kilpatricktownsend.com> > Date: Wednesday, May 2, 2018 at 2:28 PM To: Greg Shatan <gregshatanipc@gmail.com <mailto:gregshatanipc@gmail.com> >, Julie Hedlund <julie.hedlund@icann.org <mailto:julie.hedlund@icann.org> > Cc: "gnso-rpm-wg@icann.org <mailto:gnso-rpm-wg@icann.org> " <gnso-rpm-wg@icann.org <mailto:gnso-rpm-wg@icann.org> > Subject: Re: [gnso-rpm-wg] REMINDER: Proposed agenda for RPM Working Group call on 25 April 2018 at 1700 UTC
Dear All:
Below are the questions being referred to. I likewise object to these questions which have an underlying assumption that Panelists are somehow biased and don¹t screen conflicts properly. It also assumes that the panelists are all attorneys at law firms and the law firms do not have proper screening mechanisms for conflicts. Simply put, most of these questions are loaded questions that are meant to further a particular agenda. If we are going to go down the route of these type of loaded questions, should we also be asking about attorneys, for example, who represent parties that registered names with bogus contact information whether they conducted a thorough check so that they can certify that they truthfully identified the party they are representing and how they conducted that check (e.g., what mechanisms are in place and all steps taken). After all the ethical rules make clear that attorneys are bound by requirements that attorneys be truthful. In that vein, should we also ask whether the attorneys representing parties have been truthful and checked the facts that they are stating in their papers and what steps they take to certify and insure this. I can think of several examples I personally know of where an attorney simply lied in the submissions. Should this now be an entire line of inquiry. Should we ask whether Rule 11 type sanctions be available in URS cases where an attorney representing a party is found to represent a party with fake contact information or has lied in the papers. I can think of many more loaded lines of inquiries if that what some want to do, but ultimately I don¹t think these are going to be productive in moving the ball forward.
In light of the questions that were suggested on the provider side of things, I think the only issue to raise is whether Panelists are impartial per the requirements of the rules and what providers do to make sure that is the case and nothing more, . These questions should not be here and should be deleted in their entirety
4. Do you serve as a URS panelist?
A. Yes B. No
5. If yes, do you undertake a law firm-wide conflicts check to verify that neither you nor your law firm has any actual or potentially adverse conflict of interest to the complainant and/or respondent?
A. Yes B. No
If yes, please briefly describe the methods used to verify the absence of conflicts:___________________________________________________¹
If yes, do you retain records of your search?
A. Yes B. No
6. Have you ever communicated with a third party regarding an ongoing URS dispute in which you were a panelist?
A. Yes B. No
If yes, please briefly explain the nature of such communications:_________________________
From: gnso-rpm-wg [mailto:gnso-rpm-wg-bounces@icann.org <mailto:gnso-rpm-wg-bounces@icann.org> ] On Behalf Of Greg Shatan Sent: Wednesday, May 2, 2018 1:05 AM To: Julie Hedlund <julie.hedlund@icann.org <mailto:julie.hedlund@icann.org>
Cc: gnso-rpm-wg@icann.org <mailto:gnso-rpm-wg@icann.org> Subject: Re: [gnso-rpm-wg] REMINDER: Proposed agenda for RPM Working Group call on 25 April 2018 at 1700 UTC
All,
I have significant objections to the questions to Examiners that were tacked on to the end of the Practitioners questionnaire at the 11th hour. Apologies for not focusing on this before now. I don't believe these have really been properly reviewed or discussed.
I believe these questions are inappropriate in a poll of practitioners, as these are questions directed to "panelists." (The proper term is Examiner....) It feels like a "bait and switch" tactic. If we are going to survey Examiners, let's survey Examiners -- not ambush practitioners. On that basis alone, we should eliminate these questions.
I am also troubled by the questions themselves. Singling out these questions, out of all that we might ask Examiners, seems vaguely accusatory.
The basis for these questions is questionable. I've reviewed the URS Procedures and Rules, and none of these questions comes out of a Procedure or Rule. The Examiners are supposed to declare conflicts of interest, but there is no instruction on how to implement that. As such, there is no requirement that an Examiner undertake any type of conflicts check much less something as specific as "a law firm-wide conflicts check to verify that neither you nor your law firm has any actual or potentially adverse conflict of interest to the complainant and/or respondent." Asking the question implies that this is an imperative when it is not.
On top of that, this verbiage does not accurately describe a conflict check. What is a "potentially adverse conflict of interest"? Why is it only asking about adverse conflicts? I note that the Forum does have a Supplementary Rule that "A Examiner will be disqualified if circumstances exist that create a conflict of interest or cause the Examiner to be unfair and biased, including but not limited to ... The Examiner has served as an attorney to any party or the Examiner has been associated with an attorney who has represented a party during that association." This does not ask the Examiner to run a conflict check, but notably, the issue it raises is the exact opposite of the issue implied in these proposed questions -- the Forum is highlighting representing a party, not being adverse (much less "potentially adverse) to a party.
Now, I'm not saying it's a bad idea for an Examiner to run a (properly defined) conflict check, but the very fact that we are debating Examiner actions and requirements in a practitioners poll should tell us we're in the wrong place.
For that reason, I will not discuss the problems in the follow-up questions on conflict checks.
The final question is even worse. ("Have you ever communicated with a third party regarding an ongoing URS dispute in which you were a panelist?') As far as I know, this is not prohibited behavior, especially not this broadly described. It seems designed to make people feel like they might have done something wrong. (If this is expressly prohibited by the Rules or Procedures, then perhaps we could fashion a question out of that Rule/Procedure if we were putting together a poll for Examiners.) Is it improper to "communicate" with your spouse about a URS case? With one of your law partners? With a fellow Examiner?
Long story short, these questions should be deleted.
Greg
On Tue, May 1, 2018 at 10:15 AM, Julie Hedlund <julie.hedlund@icann.org <mailto:julie.hedlund@icann.org> > wrote:
Dear RPM PDP WG members,
Per the WG Co-Chairs, here is the proposed agenda for the Working Group call Wednesday, 02 May 2018, scheduled for 1700 UTC. Times are proposed as estimates and may be adjusted.
Proposed Agenda: 1. Roll call and updates to Statements of Interest (1 minute) 2. Final Status of Questions for Practitioners and Providers (9 minutes) 3. Report from the Documents Sub Team (20 minutes) 4. Discussion on URS Phase II proposal (59 minutes) See John McElwaine¹s original email at: http://mm.icann.org/pipermail/gnso-rpm-wg/2018-April/002857.html <http://mm.icann.org/pipermail/gnso-rpm-wg/2018-April/002857.html> and a Google Sheet with the proposal as tab one, and the responses as tab two at: https://docs.google.com/spreadsheets/d/1apbVrFayn_vbPfhKDpjYs66iBWjvwhWFGZ buGpQnOgI/edit?usp=sharing <https://docs.google.com/spreadsheets/d/1apbVrFayn_vbPfhKDpjYs66iBWjvwhWFG ZbuGpQnOgI/edit?usp=sharing> 5. Notice of agenda for 09 May meeting (1 minute)
Best regards, Mary, Julie, Ariel and Berry
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Paul: What you are doing is simply not productive or constructive. I stand by my objections to your questions as drafted and want to make it clear that it is rather untoward of you to try to inject questions after the fact - and well after many hours were spent by many people to obtain a consensus on a group of questions - and to then cast stones at folks for objecting to your questions. Perhaps this is a litigation strategy that you typically use, but this is not the way we should be proceeding. We obviously disagree on this point, so further missives on our positions are simply pointless. We should take this off line and spare the working group the barrage of emails. I suggest we proceed as Jason has suggested and set up a time with the practitioner subgroup to get this resolved so that a survey can be sent out to move things along. Just let Jason know some times that might work and I and others will let him know as well. Georges From: Paul Keating [mailto:Paul@law.es] Sent: Thursday, May 3, 2018 10:21 AM To: Nahitchevansky, Georges <ghn@kilpatricktownsend.com>; Michael Karanicolas <mkaranicolas@gmail.com>; Corwin, Philip via gnso-rpm-wg <gnso-rpm-wg@icann.org> Subject: Re: [gnso-rpm-wg] REMINDER: Proposed agenda for RPM Working Group call on 25 April 2018 at 1700 UTC You continue to respond by adding still further "objections". You never seem to be wiling to deal with the ones you have made and I have countered. I can only presume that you have consented on the old objections and are now focusing on those set out below. As to focus, the questions are directed entirely at the issue of impartiality. We have an obligation to investigate and the questions only seek to understand the extent to which panelists check for conflicts. Conflicts checks are SOP for any practicing attorney and are simple to conduct. It would take all of 2 seconds to respond "yes/no" and if yes simply write a short sentence on the nature of the process (which is not a trade secret). As for turning people off from responding, I cannot imagine it doing so given the simplicity of the questions. There are a limited number of practitioners who would be receiving these surveys and they are all identified in the relevant UDRP/URS decisions that are publicly available. Relying on the Providers does not investigate the extent to which impartiality and the absence of conflicts exist. That is like asking a judge if any of the attorneys had a conflict and the judge informing you "well I asked them and they said no"... I will not reply further to your emails since they just seem to be an attempt to obstruct rather than constructively engage to address the issue. Paul From: Georges Nahitchevansky <ghn@kilpatricktownsend.com<mailto:ghn@kilpatricktownsend.com>> Date: Thursday, May 3, 2018 at 3:04 PM To: Paul Keating <paul@law.es<mailto:paul@law.es>>, Michael Karanicolas <mkaranicolas@gmail.com<mailto:mkaranicolas@gmail.com>>, "Corwin, Philip via gnso-rpm-wg" <gnso-rpm-wg@icann.org<mailto:gnso-rpm-wg@icann.org>> Subject: RE: [gnso-rpm-wg] REMINDER: Proposed agenda for RPM Working Group call on 25 April 2018 at 1700 UTC Paul: You obviously misunderstand the whole point that is being made. We have questions that are ready to go and you and couple of others suddenly pop up with last minute additions that have built in biases. The point that is being made is really quite simple. The issue is whether the URS panelists appointed are impartial. That is what the inquiry should be focused on. My comments are meant to show that anyone could come up with loaded questions - and I provided a couple of examples that you might be able to understand. As I said, these types of questions are not productive and will likely turn people off to the survey. So in my view these type of questions should be avoided and should not be included in the practitioner or provider surveys. Questions regarding impartiality and how providers assure such should be in the provider section - and has been discussed by folks already. rom: Paul Keating [mailto:Paul@law.es] Sent: Thursday, May 3, 2018 8:45 AM To: Nahitchevansky, Georges <ghn@kilpatricktownsend.com<mailto:ghn@kilpatricktownsend.com>>; Michael Karanicolas <mkaranicolas@gmail.com<mailto:mkaranicolas@gmail.com>>; Corwin, Philip via gnso-rpm-wg <gnso-rpm-wg@icann.org<mailto:gnso-rpm-wg@icann.org>> Subject: Re: [gnso-rpm-wg] REMINDER: Proposed agenda for RPM Working Group call on 25 April 2018 at 1700 UTC Your true colors are showing. You are simply repeating a mantra that is based upon subjectively flawed and illogical presumptions. I believe you have an ulterior motive of simply delaying things. If you have some suggested questions please present them. Otherwise I will simply ignore your comments. Paul From: gnso-rpm-wg <gnso-rpm-wg-bounces@icann.org<mailto:gnso-rpm-wg-bounces@icann.org>> on behalf of Georges Nahitchevansky <ghn@kilpatricktownsend.com<mailto:ghn@kilpatricktownsend.com>> Date: Thursday, May 3, 2018 at 4:23 AM To: Michael Karanicolas <mkaranicolas@gmail.com<mailto:mkaranicolas@gmail.com>>, "Corwin, Philip via gnso-rpm-wg" <gnso-rpm-wg@icann.org<mailto:gnso-rpm-wg@icann.org>> Subject: Re: [gnso-rpm-wg] REMINDER: Proposed agenda for RPM Working Group call on 25 April 2018 at 1700 UTC Yes it is incredible that some want to include loaded and biased questions that are full of assumptions. In that vein, should we ask practitioners if they have ever lied in the papers they submitted in a matter and what specific steps they take to make sure that what they say is truthful. How about a question to practitioners about whether they have ever orchestrated measures beyond an appeal to deprive a successful claimant from being able to secure a domain name won in a proceeding. The point is that there are many loaded questions full of assumptions that can be asked to create issues to further an agenda. a better way of approaching the issue of impartiality without throwing out questions that assume a wrong exists is to simply focus on the concept of impartiality per the Rules as opposed to crafting and revising questions that have underlying assumptions not grounded in the rules. What would have been great is if the folks that posit these 11th hour questions had bothered to join the subgroups who worked very hard to get a set of questions that would be answered. Sweeping in at the 11th hour with these loaded questions, and when there is limited opportunity to discuss, is not productive. If it was that important of an issue you would think that these folks would have joined the groups and raised these issues. They didn't so I really ask why the loaded questions at this point. From: gnso-rpm-wg [mailto:gnso-rpm-wg-bounces@icann.org<mailto:gnso-rpm-wg-bounces@icann.org>] On Behalf Of Michael Karanicolas Sent: Wednesday, May 2, 2018 4:57 PM To: Corwin, Philip via gnso-rpm-wg <gnso-rpm-wg@icann.org<mailto:gnso-rpm-wg@icann.org>> Subject: Re: [gnso-rpm-wg] REMINDER: Proposed agenda for RPM Working Group call on 25 April 2018 at 1700 UTC Incredible. This looks like the exact same kabuki we just went through on the providers doc. Once again, it's the same tactic of trying to equate a basic and general question with a personal attack against individual panelists/examiners. Somehow, I doubt that the recipients of this survey will faint with outrage at the temerity of being asked about their conflict of interest procedures. The question does not presume that they are acting in an improper manner - it asks how they're acting. If they have proper conflict procedures in place, I can't believe they would be shy about saying as much. I also see the same arguments that the responses will be meaningless or frivolous (which is funny, considering how people are fighting tooth and nail to exclude the line of inquiry), and the same protests against imagined policy debates that might flow from the information. And, buried amidst the hyperbole, are a few substantive claims addressing the wording of these questions. So why don't we all save a bit of time and focus on how the questions can be improved to be better targeted and accurate? I've made a couple of suggested edits, based on Greg's objections. It would be great to try and build forward with actual, constructive suggestions on wording that people can live with. Or we can keep going in circles... Best, Michael On Wed, May 2, 2018 at 1:51 PM, Nahitchevansky, Georges <ghn@kilpatricktownsend.com<mailto:ghn@kilpatricktownsend.com>> wrote: Paul: Your questions are loaded questions that have a bias that panelists are not properly vetting conflicts. As a California attorney you know fully well that your questions go well beyond the norm. When was the last time you were asked to detail your conflict procedures -- apart from when there is an actual challenge by a party claiming a conflict of interest. By the same token as an attorney representing parties in URS and UDRP proceedings you must have done a conflict check. Should we be looking into what all parties do in regards to conflict checks. Attorneys are not asked because they are are covered by an ethical obligation and unless someone challenges on the ground of conflict it is presumed that they did a proper check. Similarly, Judges all over the world are presumed to have done a conflict check and to recuse themselves if a conflict exists. When is the last you asked a judge to explain what they did and what procedures they have in place before taking on a case. You presume they conducted a proper check and challenge if you believe a conflict of interest. The same should apply in the URS context. URS panelists should not be put into a separate category that goes beyond what attorneys and judges do. The panelists typicallly attest to the fact that they have no conflict. If someone feels otherwise, they can always challenge the panelist appointment. The bottom line is that this entire issue you are trying to inject here is part and parcel of some notion that panelists are not acting in an impartial manner ias required by the URS rules. The questions of such whether panelists are acting impartially should be directed to the providers, who can answer more appropriately on this issue and what they require of panelists. One other basic problem with your questions, is that many answers will be meaningless as they will simply be yes we have appropriate procedures in place. You may get a handful of more detailed responses, but then we will be arguing for months on end about whether procedures are sufficient or not etc. We are not here to rewrite the procedures firms take to run conflict checks. Again, the issue is about having impartial panelists and what steps are taken to make sure that is the case. As in my judge example above, if you were going to go down this path of inquiry you would ask a judicial commission to advise on what they do to have impartial judges. That is the more relevant and productive inquiry. So again I stress that these questions should be removed. Lastly, I am glad you agree that there should be ramifications for attorneys or others acting for parties for filing false statements, supporting parties that hide behind bogus contact information, or fail to disclose their own interests in a matter. Maybe we should ask practitioners if they feel their should be meaningful sanctions for such behavior and the type of sanctions. From:Paul@law.es<mailto:Paul@law.es> Sent: May 2, 2018 10:39 AM To:ghn@kilpatricktownsend.com<mailto:ghn@kilpatricktownsend.com>; gregshatanipc@gmail.com<mailto:gregshatanipc@gmail.com>; julie.hedlund@icann.org<mailto:julie.hedlund@icann.org> Cc:gnso-rpm-wg@icann.org<mailto:gnso-rpm-wg@icann.org> Subject: Re: [gnso-rpm-wg] REMINDER: Proposed agenda for RPM Working Group call on 25 April 2018 at 1700 UTC Sorry but I do not see what you see. The questions are neutral questions asking for a fact-based reply. They do not presume anything. This is clear from reading the qualifying questions at issue. Regarding some panelists not being attorneys, I have several responses. Primarily, given that the UDRP/URS is founded in legal principles, I question the use of those without legal training. Further, conflicts checking is not limited to attorneys. Regarding your suggestion that attorneys confirm who they are representing when domains use false WHOIS data or privacy, rest assured. There are plenty of rules and regulations that require an attorney to verify the identity of clients - the least of which are the regulations concerning money laundering. Regarding the fact-checking, I am fine with your suggestion - as long as it applies to both complainants and to respondents. Personally, I am troubled by the fact that representatives can even provide a certification when they themselves have no personal knowledge. I presume that allowing such a process in the UDRP/URS space grew out of the trademark practice (where providing such certifications to the registration authorities is a common practice). However, if you want to change it that is fine with me - as long as it applies to both sides. As to the proposal to limit inquiry to those clearly provided under the rules, that is not consistent with our marching orders. In fact if we took that approach to everything we would be left without much to investigate. To conclude, I would submit that it is really your comments that are the loaded ones and intended to prevent an inquiry into a legitimate issue. Paul From: gnso-rpm-wg <gnso-rpm-wg-bounces@icann.org<mailto:gnso-rpm-wg-bounces@icann.org>> on behalf of Georges Nahitchevansky <ghn@kilpatricktownsend.com<mailto:ghn@kilpatricktownsend.com>> Date: Wednesday, May 2, 2018 at 2:28 PM To: Greg Shatan <gregshatanipc@gmail.com<mailto:gregshatanipc@gmail.com>>, Julie Hedlund <julie.hedlund@icann.org<mailto:julie.hedlund@icann.org>> Cc: "gnso-rpm-wg@icann.org<mailto:gnso-rpm-wg@icann.org>" <gnso-rpm-wg@icann.org<mailto:gnso-rpm-wg@icann.org>> Subject: Re: [gnso-rpm-wg] REMINDER: Proposed agenda for RPM Working Group call on 25 April 2018 at 1700 UTC Dear All: Below are the questions being referred to. I likewise object to these questions which have an underlying assumption that Panelists are somehow biased and don't screen conflicts properly. It also assumes that the panelists are all attorneys at law firms and the law firms do not have proper screening mechanisms for conflicts. Simply put, most of these questions are loaded questions that are meant to further a particular agenda. If we are going to go down the route of these type of loaded questions, should we also be asking about attorneys, for example, who represent parties that registered names with bogus contact information whether they conducted a thorough check so that they can certify that they truthfully identified the party they are representing and how they conducted that check (e.g., what mechanisms are in place and all steps taken). After all the ethical rules make clear that attorneys are bound by requirements that attorneys be truthful. In that vein, should we also ask whether the attorneys representing parties have been truthful and checked the facts that they are stating in their papers - and what steps they take to certify and insure this. I can think of several examples I personally know of where an attorney simply lied in the submissions. Should this now be an entire line of inquiry. Should we ask whether Rule 11 type sanctions be available in URS cases where an attorney representing a party is found to represent a party with fake contact information or has lied in the papers. I can think of many more loaded lines of inquiries if that what some want to do, but ultimately I don't think these are going to be productive in moving the ball forward. In light of the questions that were suggested on the provider side of things, I think the only issue to raise is whether Panelists are impartial per the requirements of the rules and what providers do to make sure that is the case - and nothing more, . These questions should not be here and should be deleted in their entirety 4. Do you serve as a URS panelist? A. Yes B. No 5. If yes, do you undertake a law firm-wide conflicts check to verify that neither you nor your law firm has any actual or potentially adverse conflict of interest to the complainant and/or respondent? A. Yes B. No If yes, please briefly describe the methods used to verify the absence of conflicts:___________________________________________________' If yes, do you retain records of your search? A. Yes B. No 6. Have you ever communicated with a third party regarding an ongoing URS dispute in which you were a panelist? A. Yes B. No If yes, please briefly explain the nature of such communications:_________________________ From: gnso-rpm-wg [mailto:gnso-rpm-wg-bounces@icann.org] On Behalf Of Greg Shatan Sent: Wednesday, May 2, 2018 1:05 AM To: Julie Hedlund <julie.hedlund@icann.org<mailto:julie.hedlund@icann.org>> Cc: gnso-rpm-wg@icann.org<mailto:gnso-rpm-wg@icann.org> Subject: Re: [gnso-rpm-wg] REMINDER: Proposed agenda for RPM Working Group call on 25 April 2018 at 1700 UTC All, I have significant objections to the questions to Examiners that were tacked on to the end of the Practitioners questionnaire at the 11th hour. Apologies for not focusing on this before now. I don't believe these have really been properly reviewed or discussed. I believe these questions are inappropriate in a poll of practitioners, as these are questions directed to "panelists." (The proper term is Examiner....) It feels like a "bait and switch" tactic. If we are going to survey Examiners, let's survey Examiners -- not ambush practitioners. On that basis alone, we should eliminate these questions. I am also troubled by the questions themselves. Singling out these questions, out of all that we might ask Examiners, seems vaguely accusatory. The basis for these questions is questionable. I've reviewed the URS Procedures and Rules, and none of these questions comes out of a Procedure or Rule. The Examiners are supposed to declare conflicts of interest, but there is no instruction on how to implement that. As such, there is no requirement that an Examiner undertake any type of conflicts check much less something as specific as "a law firm-wide conflicts check to verify that neither you nor your law firm has any actual or potentially adverse conflict of interest to the complainant and/or respondent." Asking the question implies that this is an imperative when it is not. On top of that, this verbiage does not accurately describe a conflict check. What is a "potentially adverse conflict of interest"? Why is it only asking about adverse conflicts? I note that the Forum does have a Supplementary Rule that "A Examiner will be disqualified if circumstances exist that create a conflict of interest or cause the Examiner to be unfair and biased, including but not limited to ... The Examiner has served as an attorney to any party or the Examiner has been associated with an attorney who has represented a party during that association." This does not ask the Examiner to run a conflict check, but notably, the issue it raises is the exact opposite of the issue implied in these proposed questions -- the Forum is highlighting representing a party, not being adverse (much less "potentially adverse) to a party. Now, I'm not saying it's a bad idea for an Examiner to run a (properly defined) conflict check, but the very fact that we are debating Examiner actions and requirements in a practitioners poll should tell us we're in the wrong place. For that reason, I will not discuss the problems in the follow-up questions on conflict checks. The final question is even worse. ("Have you ever communicated with a third party regarding an ongoing URS dispute in which you were a panelist?') As far as I know, this is not prohibited behavior, especially not this broadly described. It seems designed to make people feel like they might have done something wrong. (If this is expressly prohibited by the Rules or Procedures, then perhaps we could fashion a question out of that Rule/Procedure if we were putting together a poll for Examiners.) Is it improper to "communicate" with your spouse about a URS case? With one of your law partners? With a fellow Examiner? Long story short, these questions should be deleted. Greg On Tue, May 1, 2018 at 10:15 AM, Julie Hedlund <julie.hedlund@icann.org<mailto:julie.hedlund@icann.org>> wrote: Dear RPM PDP WG members, Per the WG Co-Chairs, here is the proposed agenda for the Working Group call Wednesday, 02 May 2018, scheduled for 1700 UTC. Times are proposed as estimates and may be adjusted. Proposed Agenda: 1. Roll call and updates to Statements of Interest (1 minute) 2. Final Status of Questions for Practitioners and Providers (9 minutes) 3. Report from the Documents Sub Team (20 minutes) 4. Discussion on URS Phase II proposal (59 minutes) See John McElwaine's original email at: http://mm.icann.org/pipermail/gnso-rpm-wg/2018-April/002857.html and a Google Sheet with the proposal as tab one, and the responses as tab two at: https://docs.google.com/spreadsheets/d/1apbVrFayn_vbPfhKDpjYs66iBWjvwhWFGZbu... 5. Notice of agenda for 09 May meeting (1 minute) Best regards, Mary, Julie, Ariel and Berry _______________________________________________ gnso-rpm-wg mailing list gnso-rpm-wg@icann.org<mailto:gnso-rpm-wg@icann.org> https://mm.icann.org/mailman/listinfo/gnso-rpm-wg ________________________________ Confidentiality Notice: This communication constitutes an electronic communication within the meaning of the Electronic Communications Privacy Act, 18 U.S.C. Section 2510, and its disclosure is strictly limited to the recipient intended by the sender of this message. This transmission, and any attachments, may contain confidential attorney-client privileged information and attorney work product. If you are not the intended recipient, any disclosure, copying, distribution or use of any of the information contained in or attached to this transmission is STRICTLY PROHIBITED. 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Paul: I don't speak for Greg or Georges, as I believe they have done a fine job speaking for themselves, but I believe some of the adverse reaction you have received is due to what comes off as arrogance to never have participated at all in the initial development of the questions but to toss in what are clearly controversial questions (to everyone but you) that present additions in scope (practitioner AND examiner) and depth (do you keep records? - to be subpoenaed?) at the last minute as a "floor amendment" just before discussion of the final review to force their addition. If these questions are as important to you and the project as you say they are you have never explained (and I don't expect you will) why you didn't bring them up in the initial stages of the subteam review and participate when they could be fully discussed, vetted, mulled over for their purpose and effect on the project and intended recipients. Best regards, Scott Please click below to use my booking calendar to schedule: a 15-minute call<calendly.com/saustin-2/15min> a 30-minute call<calendly.com/saustin-2/30min> a 60-minute call<calendly.com/saustin-2/60min> [cid:image001.png@01D3E2CB.981CF770][IntellectualPropertyLaw 100] [microbadge[1]] <http://www.avvo.com/attorneys/33308-fl-scott-austin-1261914.html> Scott R. Austin | Board Certified Intellectual Property Attorney | VLP Law Group LLP 101 NE Third Avenue, Suite 1500, Fort Lauderdale, FL 33301 Phone: (954) 204-3744 | Fax: (954) 320-0233 | SAustin@VLPLawGroup.com<mailto:SAustin@VLPLawGroup.com> From: gnso-rpm-wg <gnso-rpm-wg-bounces@icann.org> On Behalf Of Paul Keating Sent: Thursday, May 3, 2018 10:21 AM To: Nahitchevansky, Georges <ghn@kilpatricktownsend.com>; Michael Karanicolas <mkaranicolas@gmail.com>; Corwin, Philip via gnso-rpm-wg <gnso-rpm-wg@icann.org> Subject: Re: [gnso-rpm-wg] REMINDER: Proposed agenda for RPM Working Group call on 25 April 2018 at 1700 UTC You continue to respond by adding still further "objections". You never seem to be wiling to deal with the ones you have made and I have countered. I can only presume that you have consented on the old objections and are now focusing on those set out below. As to focus, the questions are directed entirely at the issue of impartiality. We have an obligation to investigate and the questions only seek to understand the extent to which panelists check for conflicts. Conflicts checks are SOP for any practicing attorney and are simple to conduct. It would take all of 2 seconds to respond "yes/no" and if yes simply write a short sentence on the nature of the process (which is not a trade secret). As for turning people off from responding, I cannot imagine it doing so given the simplicity of the questions. There are a limited number of practitioners who would be receiving these surveys and they are all identified in the relevant UDRP/URS decisions that are publicly available. Relying on the Providers does not investigate the extent to which impartiality and the absence of conflicts exist. That is like asking a judge if any of the attorneys had a conflict and the judge informing you "well I asked them and they said no"... I will not reply further to your emails since they just seem to be an attempt to obstruct rather than constructively engage to address the issue. Paul From: Georges Nahitchevansky <ghn@kilpatricktownsend.com<mailto:ghn@kilpatricktownsend.com>> Date: Thursday, May 3, 2018 at 3:04 PM To: Paul Keating <paul@law.es<mailto:paul@law.es>>, Michael Karanicolas <mkaranicolas@gmail.com<mailto:mkaranicolas@gmail.com>>, "Corwin, Philip via gnso-rpm-wg" <gnso-rpm-wg@icann.org<mailto:gnso-rpm-wg@icann.org>> Subject: RE: [gnso-rpm-wg] REMINDER: Proposed agenda for RPM Working Group call on 25 April 2018 at 1700 UTC Paul: You obviously misunderstand the whole point that is being made. We have questions that are ready to go and you and couple of others suddenly pop up with last minute additions that have built in biases. The point that is being made is really quite simple. The issue is whether the URS panelists appointed are impartial. That is what the inquiry should be focused on. My comments are meant to show that anyone could come up with loaded questions - and I provided a couple of examples that you might be able to understand. As I said, these types of questions are not productive and will likely turn people off to the survey. So in my view these type of questions should be avoided and should not be included in the practitioner or provider surveys. Questions regarding impartiality and how providers assure such should be in the provider section - and has been discussed by folks already. rom: Paul Keating [mailto:Paul@law.es] Sent: Thursday, May 3, 2018 8:45 AM To: Nahitchevansky, Georges <ghn@kilpatricktownsend.com<mailto:ghn@kilpatricktownsend.com>>; Michael Karanicolas <mkaranicolas@gmail.com<mailto:mkaranicolas@gmail.com>>; Corwin, Philip via gnso-rpm-wg <gnso-rpm-wg@icann.org<mailto:gnso-rpm-wg@icann.org>> Subject: Re: [gnso-rpm-wg] REMINDER: Proposed agenda for RPM Working Group call on 25 April 2018 at 1700 UTC Your true colors are showing. You are simply repeating a mantra that is based upon subjectively flawed and illogical presumptions. I believe you have an ulterior motive of simply delaying things. If you have some suggested questions please present them. Otherwise I will simply ignore your comments. Paul From: gnso-rpm-wg <gnso-rpm-wg-bounces@icann.org<mailto:gnso-rpm-wg-bounces@icann.org>> on behalf of Georges Nahitchevansky <ghn@kilpatricktownsend.com<mailto:ghn@kilpatricktownsend.com>> Date: Thursday, May 3, 2018 at 4:23 AM To: Michael Karanicolas <mkaranicolas@gmail.com<mailto:mkaranicolas@gmail.com>>, "Corwin, Philip via gnso-rpm-wg" <gnso-rpm-wg@icann.org<mailto:gnso-rpm-wg@icann.org>> Subject: Re: [gnso-rpm-wg] REMINDER: Proposed agenda for RPM Working Group call on 25 April 2018 at 1700 UTC Yes it is incredible that some want to include loaded and biased questions that are full of assumptions. In that vein, should we ask practitioners if they have ever lied in the papers they submitted in a matter and what specific steps they take to make sure that what they say is truthful. How about a question to practitioners about whether they have ever orchestrated measures beyond an appeal to deprive a successful claimant from being able to secure a domain name won in a proceeding. The point is that there are many loaded questions full of assumptions that can be asked to create issues to further an agenda. a better way of approaching the issue of impartiality without throwing out questions that assume a wrong exists is to simply focus on the concept of impartiality per the Rules as opposed to crafting and revising questions that have underlying assumptions not grounded in the rules. What would have been great is if the folks that posit these 11th hour questions had bothered to join the subgroups who worked very hard to get a set of questions that would be answered. Sweeping in at the 11th hour with these loaded questions, and when there is limited opportunity to discuss, is not productive. If it was that important of an issue you would think that these folks would have joined the groups and raised these issues. They didn't so I really ask why the loaded questions at this point. From: gnso-rpm-wg [mailto:gnso-rpm-wg-bounces@icann.org<mailto:gnso-rpm-wg-bounces@icann.org>] On Behalf Of Michael Karanicolas Sent: Wednesday, May 2, 2018 4:57 PM To: Corwin, Philip via gnso-rpm-wg <gnso-rpm-wg@icann.org<mailto:gnso-rpm-wg@icann.org>> Subject: Re: [gnso-rpm-wg] REMINDER: Proposed agenda for RPM Working Group call on 25 April 2018 at 1700 UTC Incredible. This looks like the exact same kabuki we just went through on the providers doc. Once again, it's the same tactic of trying to equate a basic and general question with a personal attack against individual panelists/examiners. Somehow, I doubt that the recipients of this survey will faint with outrage at the temerity of being asked about their conflict of interest procedures. The question does not presume that they are acting in an improper manner - it asks how they're acting. If they have proper conflict procedures in place, I can't believe they would be shy about saying as much. I also see the same arguments that the responses will be meaningless or frivolous (which is funny, considering how people are fighting tooth and nail to exclude the line of inquiry), and the same protests against imagined policy debates that might flow from the information. And, buried amidst the hyperbole, are a few substantive claims addressing the wording of these questions. So why don't we all save a bit of time and focus on how the questions can be improved to be better targeted and accurate? I've made a couple of suggested edits, based on Greg's objections. It would be great to try and build forward with actual, constructive suggestions on wording that people can live with. Or we can keep going in circles... Best, Michael On Wed, May 2, 2018 at 1:51 PM, Nahitchevansky, Georges <ghn@kilpatricktownsend.com<mailto:ghn@kilpatricktownsend.com>> wrote: Paul: Your questions are loaded questions that have a bias that panelists are not properly vetting conflicts. As a California attorney you know fully well that your questions go well beyond the norm. When was the last time you were asked to detail your conflict procedures -- apart from when there is an actual challenge by a party claiming a conflict of interest. By the same token as an attorney representing parties in URS and UDRP proceedings you must have done a conflict check. Should we be looking into what all parties do in regards to conflict checks. Attorneys are not asked because they are are covered by an ethical obligation and unless someone challenges on the ground of conflict it is presumed that they did a proper check. Similarly, Judges all over the world are presumed to have done a conflict check and to recuse themselves if a conflict exists. When is the last you asked a judge to explain what they did and what procedures they have in place before taking on a case. You presume they conducted a proper check and challenge if you believe a conflict of interest. The same should apply in the URS context. URS panelists should not be put into a separate category that goes beyond what attorneys and judges do. The panelists typicallly attest to the fact that they have no conflict. If someone feels otherwise, they can always challenge the panelist appointment. The bottom line is that this entire issue you are trying to inject here is part and parcel of some notion that panelists are not acting in an impartial manner ias required by the URS rules. The questions of such whether panelists are acting impartially should be directed to the providers, who can answer more appropriately on this issue and what they require of panelists. One other basic problem with your questions, is that many answers will be meaningless as they will simply be yes we have appropriate procedures in place. You may get a handful of more detailed responses, but then we will be arguing for months on end about whether procedures are sufficient or not etc. We are not here to rewrite the procedures firms take to run conflict checks. Again, the issue is about having impartial panelists and what steps are taken to make sure that is the case. As in my judge example above, if you were going to go down this path of inquiry you would ask a judicial commission to advise on what they do to have impartial judges. That is the more relevant and productive inquiry. So again I stress that these questions should be removed. Lastly, I am glad you agree that there should be ramifications for attorneys or others acting for parties for filing false statements, supporting parties that hide behind bogus contact information, or fail to disclose their own interests in a matter. Maybe we should ask practitioners if they feel their should be meaningful sanctions for such behavior and the type of sanctions. From:Paul@law.es<mailto:Paul@law.es> Sent: May 2, 2018 10:39 AM To:ghn@kilpatricktownsend.com<mailto:ghn@kilpatricktownsend.com>; gregshatanipc@gmail.com<mailto:gregshatanipc@gmail.com>; julie.hedlund@icann.org<mailto:julie.hedlund@icann.org> Cc:gnso-rpm-wg@icann.org<mailto:gnso-rpm-wg@icann.org> Subject: Re: [gnso-rpm-wg] REMINDER: Proposed agenda for RPM Working Group call on 25 April 2018 at 1700 UTC Sorry but I do not see what you see. The questions are neutral questions asking for a fact-based reply. They do not presume anything. This is clear from reading the qualifying questions at issue. Regarding some panelists not being attorneys, I have several responses. Primarily, given that the UDRP/URS is founded in legal principles, I question the use of those without legal training. Further, conflicts checking is not limited to attorneys. Regarding your suggestion that attorneys confirm who they are representing when domains use false WHOIS data or privacy, rest assured. There are plenty of rules and regulations that require an attorney to verify the identity of clients - the least of which are the regulations concerning money laundering. Regarding the fact-checking, I am fine with your suggestion - as long as it applies to both complainants and to respondents. Personally, I am troubled by the fact that representatives can even provide a certification when they themselves have no personal knowledge. I presume that allowing such a process in the UDRP/URS space grew out of the trademark practice (where providing such certifications to the registration authorities is a common practice). However, if you want to change it that is fine with me - as long as it applies to both sides. As to the proposal to limit inquiry to those clearly provided under the rules, that is not consistent with our marching orders. In fact if we took that approach to everything we would be left without much to investigate. To conclude, I would submit that it is really your comments that are the loaded ones and intended to prevent an inquiry into a legitimate issue. Paul From: gnso-rpm-wg <gnso-rpm-wg-bounces@icann.org<mailto:gnso-rpm-wg-bounces@icann.org>> on behalf of Georges Nahitchevansky <ghn@kilpatricktownsend.com<mailto:ghn@kilpatricktownsend.com>> Date: Wednesday, May 2, 2018 at 2:28 PM To: Greg Shatan <gregshatanipc@gmail.com<mailto:gregshatanipc@gmail.com>>, Julie Hedlund <julie.hedlund@icann.org<mailto:julie.hedlund@icann.org>> Cc: "gnso-rpm-wg@icann.org<mailto:gnso-rpm-wg@icann.org>" <gnso-rpm-wg@icann.org<mailto:gnso-rpm-wg@icann.org>> Subject: Re: [gnso-rpm-wg] REMINDER: Proposed agenda for RPM Working Group call on 25 April 2018 at 1700 UTC Dear All: Below are the questions being referred to. I likewise object to these questions which have an underlying assumption that Panelists are somehow biased and don't screen conflicts properly. It also assumes that the panelists are all attorneys at law firms and the law firms do not have proper screening mechanisms for conflicts. Simply put, most of these questions are loaded questions that are meant to further a particular agenda. If we are going to go down the route of these type of loaded questions, should we also be asking about attorneys, for example, who represent parties that registered names with bogus contact information whether they conducted a thorough check so that they can certify that they truthfully identified the party they are representing and how they conducted that check (e.g., what mechanisms are in place and all steps taken). After all the ethical rules make clear that attorneys are bound by requirements that attorneys be truthful. In that vein, should we also ask whether the attorneys representing parties have been truthful and checked the facts that they are stating in their papers - and what steps they take to certify and insure this. I can think of several examples I personally know of where an attorney simply lied in the submissions. Should this now be an entire line of inquiry. Should we ask whether Rule 11 type sanctions be available in URS cases where an attorney representing a party is found to represent a party with fake contact information or has lied in the papers. I can think of many more loaded lines of inquiries if that what some want to do, but ultimately I don't think these are going to be productive in moving the ball forward. In light of the questions that were suggested on the provider side of things, I think the only issue to raise is whether Panelists are impartial per the requirements of the rules and what providers do to make sure that is the case - and nothing more, . These questions should not be here and should be deleted in their entirety 4. Do you serve as a URS panelist? A. Yes B. No 5. If yes, do you undertake a law firm-wide conflicts check to verify that neither you nor your law firm has any actual or potentially adverse conflict of interest to the complainant and/or respondent? A. Yes B. No If yes, please briefly describe the methods used to verify the absence of conflicts:___________________________________________________' If yes, do you retain records of your search? A. Yes B. No 6. Have you ever communicated with a third party regarding an ongoing URS dispute in which you were a panelist? A. Yes B. No If yes, please briefly explain the nature of such communications:_________________________ From: gnso-rpm-wg [mailto:gnso-rpm-wg-bounces@icann.org] On Behalf Of Greg Shatan Sent: Wednesday, May 2, 2018 1:05 AM To: Julie Hedlund <julie.hedlund@icann.org<mailto:julie.hedlund@icann.org>> Cc: gnso-rpm-wg@icann.org<mailto:gnso-rpm-wg@icann.org> Subject: Re: [gnso-rpm-wg] REMINDER: Proposed agenda for RPM Working Group call on 25 April 2018 at 1700 UTC All, I have significant objections to the questions to Examiners that were tacked on to the end of the Practitioners questionnaire at the 11th hour. Apologies for not focusing on this before now. I don't believe these have really been properly reviewed or discussed. I believe these questions are inappropriate in a poll of practitioners, as these are questions directed to "panelists." (The proper term is Examiner....) It feels like a "bait and switch" tactic. If we are going to survey Examiners, let's survey Examiners -- not ambush practitioners. On that basis alone, we should eliminate these questions. I am also troubled by the questions themselves. Singling out these questions, out of all that we might ask Examiners, seems vaguely accusatory. The basis for these questions is questionable. I've reviewed the URS Procedures and Rules, and none of these questions comes out of a Procedure or Rule. The Examiners are supposed to declare conflicts of interest, but there is no instruction on how to implement that. As such, there is no requirement that an Examiner undertake any type of conflicts check much less something as specific as "a law firm-wide conflicts check to verify that neither you nor your law firm has any actual or potentially adverse conflict of interest to the complainant and/or respondent." Asking the question implies that this is an imperative when it is not. On top of that, this verbiage does not accurately describe a conflict check. What is a "potentially adverse conflict of interest"? Why is it only asking about adverse conflicts? I note that the Forum does have a Supplementary Rule that "A Examiner will be disqualified if circumstances exist that create a conflict of interest or cause the Examiner to be unfair and biased, including but not limited to ... The Examiner has served as an attorney to any party or the Examiner has been associated with an attorney who has represented a party during that association." This does not ask the Examiner to run a conflict check, but notably, the issue it raises is the exact opposite of the issue implied in these proposed questions -- the Forum is highlighting representing a party, not being adverse (much less "potentially adverse) to a party. Now, I'm not saying it's a bad idea for an Examiner to run a (properly defined) conflict check, but the very fact that we are debating Examiner actions and requirements in a practitioners poll should tell us we're in the wrong place. For that reason, I will not discuss the problems in the follow-up questions on conflict checks. The final question is even worse. ("Have you ever communicated with a third party regarding an ongoing URS dispute in which you were a panelist?') As far as I know, this is not prohibited behavior, especially not this broadly described. It seems designed to make people feel like they might have done something wrong. (If this is expressly prohibited by the Rules or Procedures, then perhaps we could fashion a question out of that Rule/Procedure if we were putting together a poll for Examiners.) Is it improper to "communicate" with your spouse about a URS case? With one of your law partners? With a fellow Examiner? Long story short, these questions should be deleted. Greg On Tue, May 1, 2018 at 10:15 AM, Julie Hedlund <julie.hedlund@icann.org<mailto:julie.hedlund@icann.org>> wrote: Dear RPM PDP WG members, Per the WG Co-Chairs, here is the proposed agenda for the Working Group call Wednesday, 02 May 2018, scheduled for 1700 UTC. Times are proposed as estimates and may be adjusted. Proposed Agenda: 1. Roll call and updates to Statements of Interest (1 minute) 2. Final Status of Questions for Practitioners and Providers (9 minutes) 3. Report from the Documents Sub Team (20 minutes) 4. Discussion on URS Phase II proposal (59 minutes) See John McElwaine's original email at: http://mm.icann.org/pipermail/gnso-rpm-wg/2018-April/002857.html and a Google Sheet with the proposal as tab one, and the responses as tab two at: https://docs.google.com/spreadsheets/d/1apbVrFayn_vbPfhKDpjYs66iBWjvwhWFGZbu... 5. Notice of agenda for 09 May meeting (1 minute) Best regards, Mary, Julie, Ariel and Berry _______________________________________________ gnso-rpm-wg mailing list gnso-rpm-wg@icann.org<mailto:gnso-rpm-wg@icann.org> https://mm.icann.org/mailman/listinfo/gnso-rpm-wg ________________________________ Confidentiality Notice: This communication constitutes an electronic communication within the meaning of the Electronic Communications Privacy Act, 18 U.S.C. Section 2510, and its disclosure is strictly limited to the recipient intended by the sender of this message. This transmission, and any attachments, may contain confidential attorney-client privileged information and attorney work product. If you are not the intended recipient, any disclosure, copying, distribution or use of any of the information contained in or attached to this transmission is STRICTLY PROHIBITED. 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Scott, You are correct that I have not been participating on calls for which I have previously apologized - albeit my inability to participate was something outside of my control. I have continued to participate via email. As for objections, I have seen only objections from yourself and Georges. I have also received supporting emails. I have responded to all objections I have seen. Your email comment was most recently echoed in Georges last email (to which I responded). I have not seen anyone engage substantively as to my comments. Rather it seems a whack-a-mole effort to raise 1 ³problem² after another none of which are really problems or at least sufficient to cause the issue of conflicts checking to be left out of the survey. As for last minute, the questions were submitted to the group as a whole for review. I added my comments in areas where I saw a deficiency. If the sole purpose of the group review is to rubber-stamp the earlier working then yes, this is last minute. However, if the review is meant to actually review the resulting survey and to provide comments then I honestly do not see the issue here. Respectfully, Paul From: Scott Austin <SAustin@vlplawgroup.com> Date: Thursday, May 3, 2018 at 4:56 PM To: Paul Keating <paul@law.es>, Georges Nahitchevansky <ghn@kilpatricktownsend.com>, Michael Karanicolas <mkaranicolas@gmail.com>, "Corwin, Philip via gnso-rpm-wg" <gnso-rpm-wg@icann.org> Subject: RE: [gnso-rpm-wg] REMINDER: Proposed agenda for RPM Working Group call on 25 April 2018 at 1700 UTC
Paul: I don¹t speak for Greg or Georges, as I believe they have done a fine job speaking for themselves, but I believe some of the adverse reaction you have received is due to what comes off as arrogance to never have participated at all in the initial development of the questions but to toss in what are clearly controversial questions (to everyone but you) that present additions in scope (practitioner AND examiner) and depth (do you keep records? to be subpoenaed?) at the last minute as a ³floor amendment² just before discussion of the final review to force their addition. If these questions are as important to you and the project as you say they are you have never explained (and I don¹t expect you will) why you didn¹t bring them up in the initial stages of the subteam review and participate when they could be fully discussed, vetted, mulled over for their purpose and effect on the project and intended recipients.
Best regards, Scott
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<http://www.avvo.com/attorneys/33308-fl-scott-austin-1261914.html> Scott R. Austin | Board Certified Intellectual Property Attorney | VLP Law Group LLP 101 NE Third Avenue, Suite 1500, Fort Lauderdale, FL 33301 Phone: (954) 204-3744 | Fax: (954) 320-0233 | SAustin@VLPLawGroup.com <mailto:SAustin@VLPLawGroup.com>
From: gnso-rpm-wg <gnso-rpm-wg-bounces@icann.org> On Behalf Of Paul Keating Sent: Thursday, May 3, 2018 10:21 AM To: Nahitchevansky, Georges <ghn@kilpatricktownsend.com>; Michael Karanicolas <mkaranicolas@gmail.com>; Corwin, Philip via gnso-rpm-wg <gnso-rpm-wg@icann.org> Subject: Re: [gnso-rpm-wg] REMINDER: Proposed agenda for RPM Working Group call on 25 April 2018 at 1700 UTC
You continue to respond by adding still further ³objections². You never seem to be wiling to deal with the ones you have made and I have countered. I can only presume that you have consented on the old objections and are now focusing on those set out below.
As to focus, the questions are directed entirely at the issue of impartiality. We have an obligation to investigate and the questions only seek to understand the extent to which panelists check for conflicts. Conflicts checks are SOP for any practicing attorney and are simple to conduct. It would take all of 2 seconds to respond ³yes/no² and if yes simply write a short sentence on the nature of the process (which is not a trade secret).
As for turning people off from responding, I cannot imagine it doing so given the simplicity of the questions. There are a limited number of practitioners who would be receiving these surveys and they are all identified in the relevant UDRP/URS decisions that are publicly available.
Relying on the Providers does not investigate the extent to which impartiality and the absence of conflicts exist. That is like asking a judge if any of the attorneys had a conflict and the judge informing you ³well I asked them and they said no²
I will not reply further to your emails since they just seem to be an attempt to obstruct rather than constructively engage to address the issue.
Paul
From: Georges Nahitchevansky <ghn@kilpatricktownsend.com> Date: Thursday, May 3, 2018 at 3:04 PM To: Paul Keating <paul@law.es>, Michael Karanicolas <mkaranicolas@gmail.com>, "Corwin, Philip via gnso-rpm-wg" <gnso-rpm-wg@icann.org> Subject: RE: [gnso-rpm-wg] REMINDER: Proposed agenda for RPM Working Group call on 25 April 2018 at 1700 UTC
Paul:
You obviously misunderstand the whole point that is being made. We have questions that are ready to go and you and couple of others suddenly pop up with last minute additions that have built in biases. The point that is being made is really quite simple. The issue is whether the URS panelists appointed are impartial. That is what the inquiry should be focused on. My comments are meant to show that anyone could come up with loaded questions and I provided a couple of examples that you might be able to understand. As I said, these types of questions are not productive and will likely turn people off to the survey. So in my view these type of questions should be avoided and should not be included in the practitioner or provider surveys. Questions regarding impartiality and how providers assure such should be in the provider section and has been discussed by folks already.
rom: Paul Keating [mailto:Paul@law.es <mailto:Paul@law.es> ] Sent: Thursday, May 3, 2018 8:45 AM To: Nahitchevansky, Georges <ghn@kilpatricktownsend.com <mailto:ghn@kilpatricktownsend.com> >; Michael Karanicolas <mkaranicolas@gmail.com <mailto:mkaranicolas@gmail.com> >; Corwin, Philip via gnso-rpm-wg <gnso-rpm-wg@icann.org <mailto:gnso-rpm-wg@icann.org> > Subject: Re: [gnso-rpm-wg] REMINDER: Proposed agenda for RPM Working Group call on 25 April 2018 at 1700 UTC
Your true colors are showing. You are simply repeating a mantra that is based upon subjectively flawed and illogical presumptions. I believe you have an ulterior motive of simply delaying things.
If you have some suggested questions please present them. Otherwise I will simply ignore your comments.
Paul
From: gnso-rpm-wg <gnso-rpm-wg-bounces@icann.org <mailto:gnso-rpm-wg-bounces@icann.org> > on behalf of Georges Nahitchevansky <ghn@kilpatricktownsend.com <mailto:ghn@kilpatricktownsend.com> > Date: Thursday, May 3, 2018 at 4:23 AM To: Michael Karanicolas <mkaranicolas@gmail.com <mailto:mkaranicolas@gmail.com> >, "Corwin, Philip via gnso-rpm-wg" <gnso-rpm-wg@icann.org <mailto:gnso-rpm-wg@icann.org> > Subject: Re: [gnso-rpm-wg] REMINDER: Proposed agenda for RPM Working Group call on 25 April 2018 at 1700 UTC
Yes it is incredible that some want to include loaded and biased questions that are full of assumptions. In that vein, should we ask practitioners if they have ever lied in the papers they submitted in a matter and what specific steps they take to make sure that what they say is truthful. How about a question to practitioners about whether they have ever orchestrated measures beyond an appeal to deprive a successful claimant from being able to secure a domain name won in a proceeding. The point is that there are many loaded questions full of assumptions that can be asked to create issues to further an agenda. a better way of approaching the issue of impartiality without throwing out questions that assume a wrong exists is to simply focus on the concept of impartiality per the Rules as opposed to crafting and revising questions that have underlying assumptions not grounded in the rules. What would have been great is if the folks that posit these 11th hour questions had bothered to join the subgroups who worked very hard to get a set of questions that would be answered. Sweeping in at the 11th hour with these loaded questions, and when there is limited opportunity to discuss, is not productive. If it was that important of an issue you would think that these folks would have joined the groups and raised these issues. They didn't so I really ask why the loaded questions at this point.
From: gnso-rpm-wg [mailto:gnso-rpm-wg-bounces@icann.org <mailto:gnso-rpm-wg-bounces@icann.org> ] On Behalf Of Michael Karanicolas Sent: Wednesday, May 2, 2018 4:57 PM To: Corwin, Philip via gnso-rpm-wg <gnso-rpm-wg@icann.org <mailto:gnso-rpm-wg@icann.org> > Subject: Re: [gnso-rpm-wg] REMINDER: Proposed agenda for RPM Working Group call on 25 April 2018 at 1700 UTC
Incredible. This looks like the exact same kabuki we just went through on the providers doc.
Once again, it's the same tactic of trying to equate a basic and general question with a personal attack against individual panelists/examiners. Somehow, I doubt that the recipients of this survey will faint with outrage at the temerity of being asked about their conflict of interest procedures. The question does not presume that they are acting in an improper manner - it asks how they're acting. If they have proper conflict procedures in place, I can't believe they would be shy about saying as much.
I also see the same arguments that the responses will be meaningless or frivolous (which is funny, considering how people are fighting tooth and nail to exclude the line of inquiry), and the same protests against imagined policy debates that might flow from the information.
And, buried amidst the hyperbole, are a few substantive claims addressing the wording of these questions. So why don't we all save a bit of time and focus on how the questions can be improved to be better targeted and accurate? I've made a couple of suggested edits, based on Greg's objections. It would be great to try and build forward with actual, constructive suggestions on wording that people can live with.
Or we can keep going in circles...
Best,
Michael
On Wed, May 2, 2018 at 1:51 PM, Nahitchevansky, Georges <ghn@kilpatricktownsend.com <mailto:ghn@kilpatricktownsend.com> > wrote:
Paul:
Your questions are loaded questions that have a bias that panelists are not properly vetting conflicts. As a California attorney you know fully well that your questions go well beyond the norm. When was the last time you were asked to detail your conflict procedures -- apart from when there is an actual challenge by a party claiming a conflict of interest. By the same token as an attorney representing parties in URS and UDRP proceedings you must have done a conflict check. Should we be looking into what all parties do in regards to conflict checks. Attorneys are not asked because they are are covered by an ethical obligation and unless someone challenges on the ground of conflict it is presumed that they did a proper check. Similarly, Judges all over the world are presumed to have done a conflict check and to recuse themselves if a conflict exists. When is the last you asked a judge to explain what they did and what procedures they have in place before taking on a case. You presume they conducted a proper check and challenge if you believe a conflict of interest. The same should apply in the URS context. URS panelists should not be put into a separate category that goes beyond what attorneys and judges do. The panelists typicallly attest to the fact that they have no conflict. If someone feels otherwise, they can always challenge the panelist appointment.
The bottom line is that this entire issue you are trying to inject here is part and parcel of some notion that panelists are not acting in an impartial manner ias required by the URS rules. The questions of such whether panelists are acting impartially should be directed to the providers, who can answer more appropriately on this issue and what they require of panelists.
One other basic problem with your questions, is that many answers will be meaningless as they will simply be yes we have appropriate procedures in place. You may get a handful of more detailed responses, but then we will be arguing for months on end about whether procedures are sufficient or not etc. We are not here to rewrite the procedures firms take to run conflict checks. Again, the issue is about having impartial panelists and what steps are taken to make sure that is the case. As in my judge example above, if you were going to go down this path of inquiry you would ask a judicial commission to advise on what they do to have impartial judges. That is the more relevant and productive inquiry. So again I stress that these questions should be removed.
Lastly, I am glad you agree that there should be ramifications for attorneys or others acting for parties for filing false statements, supporting parties that hide behind bogus contact information, or fail to disclose their own interests in a matter. Maybe we should ask practitioners if they feel their should be meaningful sanctions for such behavior and the type of sanctions.
From:Paul@law.es <mailto:Paul@law.es> Sent: May 2, 2018 10:39 AM To:ghn@kilpatricktownsend.com <mailto:ghn@kilpatricktownsend.com> ; gregshatanipc@gmail.com <mailto:gregshatanipc@gmail.com> ; julie.hedlund@icann.org <mailto:julie.hedlund@icann.org> Cc:gnso-rpm-wg@icann.org <mailto:gnso-rpm-wg@icann.org> Subject: Re: [gnso-rpm-wg] REMINDER: Proposed agenda for RPM Working Group call on 25 April 2018 at 1700 UTC
Sorry but I do not see what you see.
The questions are neutral questions asking for a fact-based reply. They do not presume anything. This is clear from reading the qualifying questions at issue.
Regarding some panelists not being attorneys, I have several responses. Primarily, given that the UDRP/URS is founded in legal principles, I question the use of those without legal training. Further, conflicts checking is not limited to attorneys.
Regarding your suggestion that attorneys confirm who they are representing when domains use false WHOIS data or privacy, rest assured. There are plenty of rules and regulations that require an attorney to verify the identity of clients the least of which are the regulations concerning money laundering.
Regarding the fact-checking, I am fine with your suggestion - as long as it applies to both complainants and to respondents. Personally, I am troubled by the fact that representatives can even provide a certification when they themselves have no personal knowledge. I presume that allowing such a process in the UDRP/URS space grew out of the trademark practice (where providing such certifications to the registration authorities is a common practice). However, if you want to change it that is fine with me as long as it applies to both sides.
As to the proposal to limit inquiry to those clearly provided under the rules, that is not consistent with our marching orders. In fact if we took that approach to everything we would be left without much to investigate.
To conclude, I would submit that it is really your comments that are the loaded ones and intended to prevent an inquiry into a legitimate issue.
Paul
From: gnso-rpm-wg <gnso-rpm-wg-bounces@icann.org <mailto:gnso-rpm-wg-bounces@icann.org> > on behalf of Georges Nahitchevansky <ghn@kilpatricktownsend.com <mailto:ghn@kilpatricktownsend.com> > Date: Wednesday, May 2, 2018 at 2:28 PM To: Greg Shatan <gregshatanipc@gmail.com <mailto:gregshatanipc@gmail.com>
, Julie Hedlund <julie.hedlund@icann.org <mailto:julie.hedlund@icann.org>
Cc: "gnso-rpm-wg@icann.org <mailto:gnso-rpm-wg@icann.org> " <gnso-rpm-wg@icann.org <mailto:gnso-rpm-wg@icann.org> > Subject: Re: [gnso-rpm-wg] REMINDER: Proposed agenda for RPM Working Group call on 25 April 2018 at 1700 UTC
Dear All:
Below are the questions being referred to. I likewise object to these questions which have an underlying assumption that Panelists are somehow biased and don¹t screen conflicts properly. It also assumes that the panelists are all attorneys at law firms and the law firms do not have proper screening mechanisms for conflicts. Simply put, most of these questions are loaded questions that are meant to further a particular agenda. If we are going to go down the route of these type of loaded questions, should we also be asking about attorneys, for example, who represent parties that registered names with bogus contact information whether they conducted a thorough check so that they can certify that they truthfully identified the party they are representing and how they conducted that check (e.g., what mechanisms are in place and all steps taken). After all the ethical rules make clear that attorneys are bound by requirements that attorneys be truthful. In that vein, should we also ask whether the attorneys representing parties have been truthful and checked the facts that they are stating in their papers and what steps they take to certify and insure this. I can think of several examples I personally know of where an attorney simply lied in the submissions. Should this now be an entire line of inquiry. Should we ask whether Rule 11 type sanctions be available in URS cases where an attorney representing a party is found to represent a party with fake contact information or has lied in the papers. I can think of many more loaded lines of inquiries if that what some want to do, but ultimately I don¹t think these are going to be productive in moving the ball forward.
In light of the questions that were suggested on the provider side of things, I think the only issue to raise is whether Panelists are impartial per the requirements of the rules and what providers do to make sure that is the case and nothing more, . These questions should not be here and should be deleted in their entirety
4. Do you serve as a URS panelist?
A. Yes B. No
5. If yes, do you undertake a law firm-wide conflicts check to verify that neither you nor your law firm has any actual or potentially adverse conflict of interest to the complainant and/or respondent?
A. Yes B. No
If yes, please briefly describe the methods used to verify the absence of conflicts:___________________________________________________¹
If yes, do you retain records of your search?
A. Yes B. No
6. Have you ever communicated with a third party regarding an ongoing URS dispute in which you were a panelist?
A. Yes B. No
If yes, please briefly explain the nature of such communications:_________________________
From: gnso-rpm-wg [mailto:gnso-rpm-wg-bounces@icann.org <mailto:gnso-rpm-wg-bounces@icann.org> ] On Behalf Of Greg Shatan Sent: Wednesday, May 2, 2018 1:05 AM To: Julie Hedlund <julie.hedlund@icann.org <mailto:julie.hedlund@icann.org> > Cc: gnso-rpm-wg@icann.org <mailto:gnso-rpm-wg@icann.org> Subject: Re: [gnso-rpm-wg] REMINDER: Proposed agenda for RPM Working Group call on 25 April 2018 at 1700 UTC
All,
I have significant objections to the questions to Examiners that were tacked on to the end of the Practitioners questionnaire at the 11th hour. Apologies for not focusing on this before now. I don't believe these have really been properly reviewed or discussed.
I believe these questions are inappropriate in a poll of practitioners, as these are questions directed to "panelists." (The proper term is Examiner....) It feels like a "bait and switch" tactic. If we are going to survey Examiners, let's survey Examiners -- not ambush practitioners. On that basis alone, we should eliminate these questions.
I am also troubled by the questions themselves. Singling out these questions, out of all that we might ask Examiners, seems vaguely accusatory.
The basis for these questions is questionable. I've reviewed the URS Procedures and Rules, and none of these questions comes out of a Procedure or Rule. The Examiners are supposed to declare conflicts of interest, but there is no instruction on how to implement that. As such, there is no requirement that an Examiner undertake any type of conflicts check much less something as specific as "a law firm-wide conflicts check to verify that neither you nor your law firm has any actual or potentially adverse conflict of interest to the complainant and/or respondent." Asking the question implies that this is an imperative when it is not.
On top of that, this verbiage does not accurately describe a conflict check. What is a "potentially adverse conflict of interest"? Why is it only asking about adverse conflicts? I note that the Forum does have a Supplementary Rule that "A Examiner will be disqualified if circumstances exist that create a conflict of interest or cause the Examiner to be unfair and biased, including but not limited to ... The Examiner has served as an attorney to any party or the Examiner has been associated with an attorney who has represented a party during that association." This does not ask the Examiner to run a conflict check, but notably, the issue it raises is the exact opposite of the issue implied in these proposed questions -- the Forum is highlighting representing a party, not being adverse (much less "potentially adverse) to a party.
Now, I'm not saying it's a bad idea for an Examiner to run a (properly defined) conflict check, but the very fact that we are debating Examiner actions and requirements in a practitioners poll should tell us we're in the wrong place.
For that reason, I will not discuss the problems in the follow-up questions on conflict checks.
The final question is even worse. ("Have you ever communicated with a third party regarding an ongoing URS dispute in which you were a panelist?') As far as I know, this is not prohibited behavior, especially not this broadly described. It seems designed to make people feel like they might have done something wrong. (If this is expressly prohibited by the Rules or Procedures, then perhaps we could fashion a question out of that Rule/Procedure if we were putting together a poll for Examiners.) Is it improper to "communicate" with your spouse about a URS case? With one of your law partners? With a fellow Examiner?
Long story short, these questions should be deleted.
Greg
On Tue, May 1, 2018 at 10:15 AM, Julie Hedlund <julie.hedlund@icann.org <mailto:julie.hedlund@icann.org> > wrote:
Dear RPM PDP WG members,
Per the WG Co-Chairs, here is the proposed agenda for the Working Group call Wednesday, 02 May 2018, scheduled for 1700 UTC. Times are proposed as estimates and may be adjusted.
Proposed Agenda: 1. Roll call and updates to Statements of Interest (1 minute) 2. Final Status of Questions for Practitioners and Providers (9 minutes) 3. Report from the Documents Sub Team (20 minutes) 4. Discussion on URS Phase II proposal (59 minutes) See John McElwaine¹s original email at: http://mm.icann.org/pipermail/gnso-rpm-wg/2018-April/002857.html <http://mm.icann.org/pipermail/gnso-rpm-wg/2018-April/002857.html> and a Google Sheet with the proposal as tab one, and the responses as tab two at: https://docs.google.com/spreadsheets/d/1apbVrFayn_vbPfhKDpjYs66iBWjvwhWFG ZbuGpQnOgI/edit?usp=sharing <https://docs.google.com/spreadsheets/d/1apbVrFayn_vbPfhKDpjYs66iBWjvwhWF GZbuGpQnOgI/edit?usp=sharing> 5. Notice of agenda for 09 May meeting (1 minute)
Best regards, Mary, Julie, Ariel and Berry
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participants (3)
-
Nahitchevansky, Georges -
Paul Keating -
Scott Austin