REMINDER: Proposed agenda for RPM Working Group call on 25 April 2018 at 1700 UTC
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: Roll call and updates to Statements of Interest (1 minute) Final Status of Questions for Practitioners and Providers (9 minutes) Report from the Documents Sub Team (20 minutes) 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... Notice of agenda for 09 May meeting (1 minute) Best regards, Mary, Julie, Ariel and Berry
WG members are strongly encouraged to review the text of John’s original email and the Google doc of comments, both links provided below, prior to the call. If we do not conclude discussion tomorrow there should be time on the May 9th call to do so; if there is a decision to send any communication to Council on this matter this is in advance of the document filing deadline for its May meeting. As Kathy and I observed in our joint email of April 6th, John’s “proposal raises multiple issues, including: * Amendment of the WG Charter to move the URS review and recommendations to Phase II * Amendment of the WG Charter to define issues that must, may, and may not be addressed * Adjustment of the WG Charter to provide additional guidance on the scope of URS and UDRP Review * Adjustment of the WG leadership structure for Phase II * Potential pause in the start of Phase II keyed to GDPR impact understanding These are all major issues and we encourage WG members to comment on all of them. “ Philip S. Corwin Policy Counsel VeriSign, Inc. 12061 Bluemont Way Reston, VA 20190 703-948-4648/Direct 571-342-7489/Cell "Luck is the residue of design" -- Branch Rickey From: gnso-rpm-wg [mailto:gnso-rpm-wg-bounces@icann.org] On Behalf Of Julie Hedlund Sent: Tuesday, May 01, 2018 10:15 AM To: gnso-rpm-wg@icann.org Subject: [EXTERNAL] [gnso-rpm-wg] REMINDER: Proposed agenda for RPM Working Group call on 25 April 2018 at 1700 UTC 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
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> 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 <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_ vbPfhKDpjYs66iBWjvwhWFGZbuGpQnOgI/edit?usp=sharing <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 https://mm.icann.org/mailman/listinfo/gnso-rpm-wg
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> Cc: 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, 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.
"The Examiners are supposed to declare conflicts of interest, but there is no instruction on how to implement that." To me - that's a powerful argument as to why we should be including these questions. It's an important area where the rules seem vague, and there could be a need for greater clarity. Questions about whether or not a strong standard is being carried out in practice would be very relevant to making that determination. That said - I do think there's room for improving the verbiage. I agree that the phrase "actual or potentially adverse" could be deleted from Q5. I think Q6 could be improved by narrowing it to communications with a third party related to the dispute. Best, Michael Karanicolas On Wed, May 2, 2018 at 9:28 AM, Nahitchevansky, Georges <ghn@kilpatricktownsend.com> wrote:
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> Cc: 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> 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:
Roll call and updates to Statements of Interest (1 minute) Final Status of Questions for Practitioners and Providers (9 minutes) Report from the Documents Sub Team (20 minutes) 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... 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 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, 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 https://mm.icann.org/mailman/listinfo/gnso-rpm-wg
I agree with Michael. We can play around with the wording somewhat, but it's an important issue. DomainNameWire.com had a story that some might find of interest at: https://domainnamewire.com/2018/03/29/a-troubling-connection-in-a-udrp/ Sincerely, George Kirikos 416-588-0269 http://www.leap.com/ On Wed, May 2, 2018 at 8:54 AM, Michael Karanicolas <mkaranicolas@gmail.com> wrote:
"The Examiners are supposed to declare conflicts of interest, but there is no instruction on how to implement that."
To me - that's a powerful argument as to why we should be including these questions. It's an important area where the rules seem vague, and there could be a need for greater clarity. Questions about whether or not a strong standard is being carried out in practice would be very relevant to making that determination.
That said - I do think there's room for improving the verbiage. I agree that the phrase "actual or potentially adverse" could be deleted from Q5. I think Q6 could be improved by narrowing it to communications with a third party related to the dispute.
Best,
Michael Karanicolas
On Wed, May 2, 2018 at 9:28 AM, Nahitchevansky, Georges <ghn@kilpatricktownsend.com> wrote:
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> Cc: 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> 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:
Roll call and updates to Statements of Interest (1 minute) Final Status of Questions for Practitioners and Providers (9 minutes) Report from the Documents Sub Team (20 minutes) 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... 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 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, and destroy the original transmission and its attachments without reading or saving in any manner.
________________________________
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My questions were intended to investigate an area that has been the cause of significant concern - particularly amongst the Respondent¹s attorney side of things. First, the presumption in the UDRP is that the panelists are in fact neutral. While there is a provision for the ADR provider to state as much, we have no insight into how that is determined and what, if any, efforts are undertaken to investigate or police statements of neutrality. Second, there is no guidance in any of the applicable rules dealing with conflicts of interest and no guidance on how ³neutrality² is actually determined, other than perhaps a statement from the panelist. I have never seen or heard of any guidance provided to panelists by any ADR provider. Third, while I am happy that people discuss and edit the suggested questions, I would like to point out a few things: 1. "actual or potential conflict² is a well-known ethical standard for attorneys and they are well versed in its meaning. Most professional conduct codes have restrictions that preclude attorneys (or their firms) from accepting or acting on behalf of clients that have an actual or potential conflict with pre-existing clients (or even past clients). Conflicts are verified as a part of any new client intake. Conflicts are measured in terms of the client and parties that are potentially adverse to any client. Again, this is on a firm-wide basis and not limited to individual attorneys. Unfortunately, it is less than clear if these same rules apply when an attorney accepts an appointment as an arbitrator with an ADR provider. And, the extend to which panelists conduct conflicts checks (or even if they do) is unknown. Moreover, there are a number of panelists who are not licensed attorneys. 2. I cannot see that any of the proposed questions are offensive in any manner. As an attorney I would expect to conduct a full-fledged conflicts check prior to accepting any appointment. 3. Contacts with third parties. This question is intended to go beyond mere contacts with third parties and includes self-research, contact and communications with anyone else (e.g. Partners, associates, etc). The point is that the decision is supposed to be based entirely upon the papers as filed and in the rare instance investigations undertaken by the panel. However, there is nothing in the Rules that would authorize, for example, research undertaken by anyone else and provided to the panelists. 4. These questions should also be directed to the ADR providers to determine what extent, if any, they impose rules and to what extent, if any, they police the issue of conflicts beyond mere reliance upon the panelist statement. Paul On 5/2/18, 3:09 PM, "gnso-rpm-wg on behalf of George Kirikos" <gnso-rpm-wg-bounces@icann.org on behalf of icann@leap.com> wrote:
I agree with Michael. We can play around with the wording somewhat, but it's an important issue. DomainNameWire.com had a story that some might find of interest at:
https://domainnamewire.com/2018/03/29/a-troubling-connection-in-a-udrp/
Sincerely,
George Kirikos 416-588-0269 http://www.leap.com/
On Wed, May 2, 2018 at 8:54 AM, Michael Karanicolas <mkaranicolas@gmail.com> wrote:
"The Examiners are supposed to declare conflicts of interest, but there is no instruction on how to implement that."
To me - that's a powerful argument as to why we should be including these questions. It's an important area where the rules seem vague, and there could be a need for greater clarity. Questions about whether or not a strong standard is being carried out in practice would be very relevant to making that determination.
That said - I do think there's room for improving the verbiage. I agree that the phrase "actual or potentially adverse" could be deleted from Q5. I think Q6 could be improved by narrowing it to communications with a third party related to the dispute.
Best,
Michael Karanicolas
On Wed, May 2, 2018 at 9:28 AM, Nahitchevansky, Georges <ghn@kilpatricktownsend.com> wrote:
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] On Behalf Of Greg Shatan Sent: Wednesday, May 2, 2018 1:05 AM To: Julie Hedlund <julie.hedlund@icann.org> Cc: 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> 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:
Roll call and updates to Statements of Interest (1 minute) Final Status of Questions for Practitioners and Providers (9 minutes) Report from the Documents Sub Team (20 minutes) 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 and a Google Sheet with the proposal as tab one, and the responses as tab two at:
https://docs.google.com/spreadsheets/d/1apbVrFayn_vbPfhKDpjYs66iBWjvwhWF GZbuGpQnOgI/edit?usp=sharing Notice of agenda for 09 May meeting (1 minute)
Best regards,
Mary, Julie, Ariel and Berry
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________________________________
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, and destroy the original transmission and its attachments without reading or saving in any manner.
________________________________
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I think we need to remind ourselves of why we are asking questions of practitioners in the first place. As a group it was decided that practitioners who have used the URS (which should be more than de minimis usage) may be able to provide the WG with insights on how the procedure works in practice, both positives and negatives. So, do the rules require one of the parties (for whom the practitioners are acting) to do something which is impractical, for example. The questions flagged by Greg and Georges do not do this. As has been pointed out, we already have various questions for the providers which go to neutrality/impartiality of the examiners. These questions should come out of the practitioner's questionnaire. Susan Payne Head of Legal Policy | Valideus Ltd 28-30 Little Russell Street London, WC1A 2HN, United Kingdom E: susan.payne@valideus.com D: +44 20 7421 8255 T: +44 20 7421 8299 M: +44 7971 661175 -----Original Message----- From: gnso-rpm-wg [mailto:gnso-rpm-wg-bounces@icann.org] On Behalf Of Paul Keating Sent: 02 May 2018 15:24 To: George Kirikos <icann@leap.com>; 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 My questions were intended to investigate an area that has been the cause of significant concern - particularly amongst the Respondent¹s attorney side of things. First, the presumption in the UDRP is that the panelists are in fact neutral. While there is a provision for the ADR provider to state as much, we have no insight into how that is determined and what, if any, efforts are undertaken to investigate or police statements of neutrality. Second, there is no guidance in any of the applicable rules dealing with conflicts of interest and no guidance on how ³neutrality² is actually determined, other than perhaps a statement from the panelist. I have never seen or heard of any guidance provided to panelists by any ADR provider. Third, while I am happy that people discuss and edit the suggested questions, I would like to point out a few things: 1. "actual or potential conflict² is a well-known ethical standard for attorneys and they are well versed in its meaning. Most professional conduct codes have restrictions that preclude attorneys (or their firms) from accepting or acting on behalf of clients that have an actual or potential conflict with pre-existing clients (or even past clients). Conflicts are verified as a part of any new client intake. Conflicts are measured in terms of the client and parties that are potentially adverse to any client. Again, this is on a firm-wide basis and not limited to individual attorneys. Unfortunately, it is less than clear if these same rules apply when an attorney accepts an appointment as an arbitrator with an ADR provider. And, the extend to which panelists conduct conflicts checks (or even if they do) is unknown. Moreover, there are a number of panelists who are not licensed attorneys. 2. I cannot see that any of the proposed questions are offensive in any manner. As an attorney I would expect to conduct a full-fledged conflicts check prior to accepting any appointment. 3. Contacts with third parties. This question is intended to go beyond mere contacts with third parties and includes self-research, contact and communications with anyone else (e.g. Partners, associates, etc). The point is that the decision is supposed to be based entirely upon the papers as filed and in the rare instance investigations undertaken by the panel. However, there is nothing in the Rules that would authorize, for example, research undertaken by anyone else and provided to the panelists. 4. These questions should also be directed to the ADR providers to determine what extent, if any, they impose rules and to what extent, if any, they police the issue of conflicts beyond mere reliance upon the panelist statement. Paul On 5/2/18, 3:09 PM, "gnso-rpm-wg on behalf of George Kirikos" <gnso-rpm-wg-bounces@icann.org on behalf of icann@leap.com> wrote:
I agree with Michael. We can play around with the wording somewhat, but it's an important issue. DomainNameWire.com had a story that some might find of interest at:
https://domainnamewire.com/2018/03/29/a-troubling-connection-in-a-udrp/
Sincerely,
George Kirikos 416-588-0269 http://www.leap.com/
On Wed, May 2, 2018 at 8:54 AM, Michael Karanicolas <mkaranicolas@gmail.com> wrote:
"The Examiners are supposed to declare conflicts of interest, but there is no instruction on how to implement that."
To me - that's a powerful argument as to why we should be including these questions. It's an important area where the rules seem vague, and there could be a need for greater clarity. Questions about whether or not a strong standard is being carried out in practice would be very relevant to making that determination.
That said - I do think there's room for improving the verbiage. I agree that the phrase "actual or potentially adverse" could be deleted from Q5. I think Q6 could be improved by narrowing it to communications with a third party related to the dispute.
Best,
Michael Karanicolas
On Wed, May 2, 2018 at 9:28 AM, Nahitchevansky, Georges <ghn@kilpatricktownsend.com> wrote:
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] On Behalf Of Greg Shatan Sent: Wednesday, May 2, 2018 1:05 AM To: Julie Hedlund <julie.hedlund@icann.org> Cc: 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> 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:
Roll call and updates to Statements of Interest (1 minute) Final Status of Questions for Practitioners and Providers (9 minutes) Report from the Documents Sub Team (20 minutes) 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 and a Google Sheet with the proposal as tab one, and the responses as tab two at:
https://docs.google.com/spreadsheets/d/1apbVrFayn_vbPfhKDpjYs66iBWjvwhWF GZbuGpQnOgI/edit?usp=sharing 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 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, 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.
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Sorry but I disagree. The Providers can respond only insofar as they have knowledge. They could not, for example, provide any insight into the true nature or validity of any neutrality assertion they may receive. The Practitioners are the ones that are providing the basis for the neutrality certification that is provided by the ADR Provider. Both are completely justified IMHOI. Paul On 5/2/18, 5:31 PM, "Susan Payne" <susan.payne@valideus.com> wrote:
I think we need to remind ourselves of why we are asking questions of practitioners in the first place. As a group it was decided that practitioners who have used the URS (which should be more than de minimis usage) may be able to provide the WG with insights on how the procedure works in practice, both positives and negatives. So, do the rules require one of the parties (for whom the practitioners are acting) to do something which is impractical, for example. The questions flagged by Greg and Georges do not do this. As has been pointed out, we already have various questions for the providers which go to neutrality/impartiality of the examiners. These questions should come out of the practitioner's questionnaire.
Susan Payne Head of Legal Policy | Valideus Ltd 28-30 Little Russell Street London, WC1A 2HN, United Kingdom
E: susan.payne@valideus.com D: +44 20 7421 8255 T: +44 20 7421 8299 M: +44 7971 661175
-----Original Message----- From: gnso-rpm-wg [mailto:gnso-rpm-wg-bounces@icann.org] On Behalf Of Paul Keating Sent: 02 May 2018 15:24 To: George Kirikos <icann@leap.com>; 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
My questions were intended to investigate an area that has been the cause of significant concern - particularly amongst the Respondent¹s attorney side of things.
First, the presumption in the UDRP is that the panelists are in fact neutral. While there is a provision for the ADR provider to state as much, we have no insight into how that is determined and what, if any, efforts are undertaken to investigate or police statements of neutrality.
Second, there is no guidance in any of the applicable rules dealing with conflicts of interest and no guidance on how ³neutrality² is actually determined, other than perhaps a statement from the panelist. I have never seen or heard of any guidance provided to panelists by any ADR provider.
Third, while I am happy that people discuss and edit the suggested questions, I would like to point out a few things:
1. "actual or potential conflict² is a well-known ethical standard for attorneys and they are well versed in its meaning. Most professional conduct codes have restrictions that preclude attorneys (or their firms) from accepting or acting on behalf of clients that have an actual or potential conflict with pre-existing clients (or even past clients). Conflicts are verified as a part of any new client intake. Conflicts are measured in terms of the client and parties that are potentially adverse to any client. Again, this is on a firm-wide basis and not limited to individual attorneys. Unfortunately, it is less than clear if these same rules apply when an attorney accepts an appointment as an arbitrator with an ADR provider. And, the extend to which panelists conduct conflicts checks (or even if they do) is unknown. Moreover, there are a number of panelists who are not licensed attorneys.
2. I cannot see that any of the proposed questions are offensive in any manner. As an attorney I would expect to conduct a full-fledged conflicts check prior to accepting any appointment.
3. Contacts with third parties. This question is intended to go beyond mere contacts with third parties and includes self-research, contact and communications with anyone else (e.g. Partners, associates, etc). The point is that the decision is supposed to be based entirely upon the papers as filed and in the rare instance investigations undertaken by the panel. However, there is nothing in the Rules that would authorize, for example, research undertaken by anyone else and provided to the panelists.
4. These questions should also be directed to the ADR providers to determine what extent, if any, they impose rules and to what extent, if any, they police the issue of conflicts beyond mere reliance upon the panelist statement.
Paul
On 5/2/18, 3:09 PM, "gnso-rpm-wg on behalf of George Kirikos" <gnso-rpm-wg-bounces@icann.org on behalf of icann@leap.com> wrote:
I agree with Michael. We can play around with the wording somewhat, but it's an important issue. DomainNameWire.com had a story that some might find of interest at:
https://domainnamewire.com/2018/03/29/a-troubling-connection-in-a-udrp/
Sincerely,
George Kirikos 416-588-0269 http://www.leap.com/
On Wed, May 2, 2018 at 8:54 AM, Michael Karanicolas <mkaranicolas@gmail.com> wrote:
"The Examiners are supposed to declare conflicts of interest, but there is no instruction on how to implement that."
To me - that's a powerful argument as to why we should be including these questions. It's an important area where the rules seem vague, and there could be a need for greater clarity. Questions about whether or not a strong standard is being carried out in practice would be very relevant to making that determination.
That said - I do think there's room for improving the verbiage. I agree that the phrase "actual or potentially adverse" could be deleted from Q5. I think Q6 could be improved by narrowing it to communications with a third party related to the dispute.
Best,
Michael Karanicolas
On Wed, May 2, 2018 at 9:28 AM, Nahitchevansky, Georges <ghn@kilpatricktownsend.com> wrote:
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] On Behalf Of Greg Shatan Sent: Wednesday, May 2, 2018 1:05 AM To: Julie Hedlund <julie.hedlund@icann.org> Cc: 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> 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:
Roll call and updates to Statements of Interest (1 minute) Final Status of Questions for Practitioners and Providers (9 minutes) Report from the Documents Sub Team (20 minutes) 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 and a Google Sheet with the proposal as tab one, and the responses as tab two at:
https://docs.google.com/spreadsheets/d/1apbVrFayn_vbPfhKDpjYs66iBWjvwhW F GZbuGpQnOgI/edit?usp=sharing Notice of agenda for 09 May meeting (1 minute)
Best regards,
Mary, Julie, Ariel and Berry
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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, and destroy the original transmission and its attachments without reading or saving in any manner.
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Hi Paul, Question: If what you say is true, they do we need to have the questions in both surveys? Perhaps we should direct the Qs to the Practitioners then & remove them from the Provider survey? Cyntia King E: <mailto:cking@modernip.com> cking@modernip.com O: +1 81-ModernIP C: +1 818.209.6088 -----Original Message----- From: gnso-rpm-wg <gnso-rpm-wg-bounces@icann.org> On Behalf Of Paul Keating Sent: Wednesday, May 2, 2018 10:54 AM To: Susan Payne <susan.payne@valideus.com>; George Kirikos <icann@leap.com>; 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 disagree. The Providers can respond only insofar as they have knowledge. They could not, for example, provide any insight into the true nature or validity of any neutrality assertion they may receive. The Practitioners are the ones that are providing the basis for the neutrality certification that is provided by the ADR Provider. Both are completely justified IMHOI. Paul On 5/2/18, 5:31 PM, "Susan Payne" < <mailto:susan.payne@valideus.com> susan.payne@valideus.com> wrote:
I think we need to remind ourselves of why we are asking questions of
practitioners in the first place. As a group it was decided that
practitioners who have used the URS (which should be more than de
minimis
usage) may be able to provide the WG with insights on how the procedure
works in practice, both positives and negatives. So, do the rules
require one of the parties (for whom the practitioners are acting) to
do something which is impractical, for example. The questions flagged
by Greg and Georges do not do this. As has been pointed out, we
already have various questions for the providers which go to
neutrality/impartiality of the examiners. These questions should come
out of the practitioner's questionnaire.
Susan Payne
Head of Legal Policy | Valideus Ltd
28-30 Little Russell Street
London, WC1A 2HN, United Kingdom
E: <mailto:susan.payne@valideus.com> susan.payne@valideus.com
D: +44 20 7421 8255
T: +44 20 7421 8299
M: +44 7971 661175
-----Original Message-----
From: gnso-rpm-wg [ <mailto:gnso-rpm-wg-bounces@icann.org> mailto:gnso-rpm-wg-bounces@icann.org] On Behalf Of
Paul Keating
Sent: 02 May 2018 15:24
To: George Kirikos < <mailto:icann@leap.com> icann@leap.com>; <mailto:gnso-rpm-wg@icann.org> 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
My questions were intended to investigate an area that has been the
cause of significant concern - particularly amongst the Respondent¹s
attorney side of things.
First, the presumption in the UDRP is that the panelists are in fact
neutral. While there is a provision for the ADR provider to state as
much, we have no insight into how that is determined and what, if any,
efforts are undertaken to investigate or police statements of neutrality.
Second, there is no guidance in any of the applicable rules dealing
with conflicts of interest and no guidance on how ³neutrality² is
actually determined, other than perhaps a statement from the panelist.
I have never seen or heard of any guidance provided to panelists by any
ADR provider.
Third, while I am happy that people discuss and edit the suggested
questions, I would like to point out a few things:
1. "actual or potential conflict² is a well-known
ethical standard for
attorneys and they are well versed in its meaning. Most professional
conduct codes have restrictions that preclude attorneys (or their
firms) from accepting or acting on behalf of clients that have an
actual or potential conflict with pre-existing clients (or even past clients).
Conflicts are verified as a part of any new client intake. Conflicts
are measured in terms of the client and parties that are potentially
adverse to any client. Again, this is on a firm-wide basis and not
limited to individual attorneys. Unfortunately, it is less than clear
if these same rules apply when an attorney accepts an appointment as an
arbitrator with an ADR provider. And, the extend to which panelists
conduct conflicts checks (or even if they do) is unknown. Moreover,
there are a number of panelists who are not licensed attorneys.
2. I cannot see that any of the proposed questions
are offensive in any
manner. As an attorney I would expect to conduct a full-fledged
conflicts check prior to accepting any appointment.
3. Contacts with third parties. This question is
intended to go beyond
mere contacts with third parties and includes self-research, contact
and communications with anyone else (e.g. Partners, associates, etc).
The point is that the decision is supposed to be based entirely upon
the papers as filed and in the rare instance investigations undertaken
by the panel. However, there is nothing in the Rules that would
authorize, for example, research undertaken by anyone else and provided to the panelists.
4. These questions should also be directed to the
ADR providers to
determine what extent, if any, they impose rules and to what extent, if
any, they police the issue of conflicts beyond mere reliance upon the
panelist statement.
Paul
On 5/2/18, 3:09 PM, "gnso-rpm-wg on behalf of George Kirikos"
< <mailto:gnso-rpm-wg-bounces@icann.org%20on%20behalf%20of%20icann@leap.com> gnso-rpm-wg-bounces@icann.org on behalf of icann@leap.com> wrote:
I agree with Michael. We can play around with the wording somewhat,
but it's an important issue. DomainNameWire.com had a story that some
might find of interest at:
<https://domainnamewire.com/2018/03/29/a-troubling-connection-in-a-udrp> https://domainnamewire.com/2018/03/29/a-troubling-connection-in-a-udrp
/
Sincerely,
George Kirikos
416-588-0269
On Wed, May 2, 2018 at 8:54 AM, Michael Karanicolas
< <mailto:mkaranicolas@gmail.com> mkaranicolas@gmail.com> wrote:
"The Examiners are supposed to declare conflicts of interest, but
there is no instruction on how to implement that."
To me - that's a powerful argument as to why we should be including
these questions. It's an important area where the rules seem vague,
and there could be a need for greater clarity. Questions about
whether or not a strong standard is being carried out in practice
would be very relevant to making that determination.
That said - I do think there's room for improving the verbiage. I
agree that the phrase "actual or potentially adverse" could be
deleted from Q5. I think Q6 could be improved by narrowing it to
communications with a third party related to the dispute.
Best,
Michael Karanicolas
On Wed, May 2, 2018 at 9:28 AM, Nahitchevansky, Georges
< <mailto:ghn@kilpatricktownsend.com> ghn@kilpatricktownsend.com> wrote:
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 < <mailto:julie.hedlund@icann.org> julie.hedlund@icann.org>
Cc: <mailto:gnso-rpm-wg@icann.org> 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
< <mailto:julie.hedlund@icann.org> 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:
Roll call and updates to Statements of Interest (1 minute) Final
Status of Questions for Practitioners and Providers (9 minutes)
Report from the Documents Sub Team (20 minutes) 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_vbPfhKDpjYs66iBWjv> https://docs.google.com/spreadsheets/d/1apbVrFayn_vbPfhKDpjYs66iBWjv
whW
F
GZbuGpQnOgI/edit?usp=sharing
Notice of agenda for 09 May meeting (1 minute)
Best regards,
Mary, Julie, Ariel and Berry
_______________________________________________
gnso-rpm-wg mailing list
<mailto:gnso-rpm-wg@icann.org> gnso-rpm-wg@icann.org
<https://mm.icann.org/mailman/listinfo/gnso-rpm-wg> https://mm.icann.org/mailman/listinfo/gnso-rpm-wg
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Section
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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, and destroy the original transmission and its
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________________________________
***DISCLAIMER*** Per Treasury Department Circular 230: Any U.S.
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is not intended or written to be used, and cannot be used, for the
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Because they both seek data from 2 different sources and both are important to form a complete understanding as to (a) if there is an issue to deal with and (b) if there is, how is it solved. The Providers cannot give accurate information as to what Practitioners do to ensure neutrality (it is fundamentally their responsibility in processing any certification) The Practitioners cannot provide any insight into what the Providers do with the certifications or how they police their panelists in connection therewith. Paul From: Cyntia King <cking@modernip.com> Date: Wednesday, May 2, 2018 at 7:03 PM To: Paul Keating <paul@law.es>, 'Susan Payne' <susan.payne@valideus.com>, 'George Kirikos' <icann@leap.com>, <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
Hi Paul,
Question: If what you say is true, they do we need to have the questions in both surveys? Perhaps we should direct the Qs to the Practitioners then & remove them from the Provider survey?
Cyntia King E: cking@modernip.com <mailto:cking@modernip.com> O: +1 81-ModernIP C: +1 818.209.6088
-----Original Message----- From: gnso-rpm-wg <gnso-rpm-wg-bounces@icann.org> On Behalf Of Paul Keating Sent: Wednesday, May 2, 2018 10:54 AM To: Susan Payne <susan.payne@valideus.com>; George Kirikos <icann@leap.com>; 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 disagree.
The Providers can respond only insofar as they have knowledge. They could not, for example, provide any insight into the true nature or validity of any neutrality assertion they may receive.
The Practitioners are the ones that are providing the basis for the neutrality certification that is provided by the ADR Provider.
Both are completely justified IMHOI.
Paul
On 5/2/18, 5:31 PM, "Susan Payne" <susan.payne@valideus.com <mailto:susan.payne@valideus.com> > wrote:
I think we need to remind ourselves of why we are asking questions of practitioners in the first place. As a group it was decided that practitioners who have used the URS (which should be more than de minimis usage) may be able to provide the WG with insights on how the procedure works in practice, both positives and negatives. So, do the rules require one of the parties (for whom the practitioners are acting) to do something which is impractical, for example. The questions flagged by Greg and Georges do not do this. As has been pointed out, we already have various questions for the providers which go to neutrality/impartiality of the examiners. These questions should come out of the practitioner's questionnaire.
Susan Payne Head of Legal Policy | Valideus Ltd 28-30 Little Russell Street London, WC1A 2HN, United Kingdom
E: susan.payne@valideus.com <mailto:susan.payne@valideus.com> D: +44 20 7421 8255 T: +44 20 7421 8299 M: +44 7971 661175
-----Original Message----- From: gnso-rpm-wg [mailto:gnso-rpm-wg-bounces@icann.org <mailto:gnso-rpm-wg-bounces@icann.org> ] On Behalf Of Paul Keating Sent: 02 May 2018 15:24 To: George Kirikos <icann@leap.com <mailto:icann@leap.com> >; 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
My questions were intended to investigate an area that has been the cause of significant concern - particularly amongst the Respondent¹s attorney side of things.
First, the presumption in the UDRP is that the panelists are in fact neutral. While there is a provision for the ADR provider to state as much, we have no insight into how that is determined and what, if any, efforts are undertaken to investigate or police statements of neutrality.
Second, there is no guidance in any of the applicable rules dealing with conflicts of interest and no guidance on how ³neutrality² is actually determined, other than perhaps a statement from the panelist. I have never seen or heard of any guidance provided to panelists by any ADR provider.
Third, while I am happy that people discuss and edit the suggested questions, I would like to point out a few things:
1. "actual or potential conflict² is a well-known ethical standard for attorneys and they are well versed in its meaning. Most professional conduct codes have restrictions that preclude attorneys (or their firms) from accepting or acting on behalf of clients that have an actual or potential conflict with pre-existing clients (or even past clients). Conflicts are verified as a part of any new client intake. Conflicts are measured in terms of the client and parties that are potentially adverse to any client. Again, this is on a firm-wide basis and not limited to individual attorneys. Unfortunately, it is less than clear if these same rules apply when an attorney accepts an appointment as an arbitrator with an ADR provider. And, the extend to which panelists conduct conflicts checks (or even if they do) is unknown. Moreover, there are a number of panelists who are not licensed attorneys.
2. I cannot see that any of the proposed questions are offensive in any manner. As an attorney I would expect to conduct a full-fledged conflicts check prior to accepting any appointment.
3. Contacts with third parties. This question is intended to go beyond mere contacts with third parties and includes self-research, contact and communications with anyone else (e.g. Partners, associates, etc). The point is that the decision is supposed to be based entirely upon the papers as filed and in the rare instance investigations undertaken by the panel. However, there is nothing in the Rules that would authorize, for example, research undertaken by anyone else and provided to the panelists.
4. These questions should also be directed to the ADR providers to determine what extent, if any, they impose rules and to what extent, if any, they police the issue of conflicts beyond mere reliance upon the panelist statement.
Paul
On 5/2/18, 3:09 PM, "gnso-rpm-wg on behalf of George Kirikos" <gnso-rpm-wg-bounces@icann.org on behalf of icann@leap.com <mailto:gnso-rpm-wg-bounces@icann.org%20on%20behalf%20of%20icann@leap.com> > wrote:
I agree with Michael. We can play around with the wording somewhat, but it's an important issue. DomainNameWire.com had a story that some might find of interest at:
https://domainnamewire.com/2018/03/29/a-troubling-connection-in-a-udrp <https://domainnamewire.com/2018/03/29/a-troubling-connection-in-a-udrp> /
Sincerely,
George Kirikos 416-588-0269 http://www.leap.com/ <http://www.leap.com/>
On Wed, May 2, 2018 at 8:54 AM, Michael Karanicolas <mkaranicolas@gmail.com <mailto:mkaranicolas@gmail.com> > wrote:
> "The Examiners are supposed to declare conflicts of interest, but > there is no instruction on how to implement that." > > To me - that's a powerful argument as to why we should be including > these questions. It's an important area where the rules seem vague, > and there could be a need for greater clarity. Questions about > whether or not a strong standard is being carried out in practice > would be very relevant to making that determination. > > That said - I do think there's room for improving the verbiage. I > agree that the phrase "actual or potentially adverse" could be > deleted from Q5. I think Q6 could be improved by narrowing it to > communications with a third party related to the dispute. > > Best, > > Michael Karanicolas > > > > On Wed, May 2, 2018 at 9:28 AM, Nahitchevansky, Georges > <ghn@kilpatricktownsend.com <mailto:ghn@kilpatricktownsend.com> > wrote: >>> 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: >>> >>> Roll call and updates to Statements of Interest (1 minute) Final >>>Status of Questions for Practitioners and Providers (9 minutes) >>>Report from the Documents Sub Team (20 minutes) 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_vbPfhKDpjYs66iBWjv <https://docs.google.com/spreadsheets/d/1apbVrFayn_vbPfhKDpjYs66iBWjv> >>>whW >>>F >>>GZbuGpQnOgI/edit?usp=sharing >>> 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 <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, 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 <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 <https://mm.icann.org/mailman/listinfo/gnso-rpm-wg>
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My first message to the group was rejected because of file size. Please use this link: https://www.dropbox.com/s/1dodxsqkauqp1vr/URS%20Case%20Review%20-%20Final.xl... Rebecca Tushnet Frank Stanton Professor of First Amendment Law, Harvard Law School 703 593 6759 ________________________________ From: gnso-rpm-wg <gnso-rpm-wg-bounces@icann.org> on behalf of Cyntia King <cking@modernip.com> Sent: Wednesday, May 2, 2018 1:03 PM To: 'Paul Keating'; 'Susan Payne'; 'George Kirikos'; 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 Hi Paul, Question: If what you say is true, they do we need to have the questions in both surveys? Perhaps we should direct the Qs to the Practitioners then & remove them from the Provider survey? Cyntia King E: cking@modernip.com<mailto:cking@modernip.com> O: +1 81-ModernIP C: +1 818.209.6088 [MIP Composite (Email)] -----Original Message----- From: gnso-rpm-wg <gnso-rpm-wg-bounces@icann.org> On Behalf Of Paul Keating Sent: Wednesday, May 2, 2018 10:54 AM To: Susan Payne <susan.payne@valideus.com>; George Kirikos <icann@leap.com>; 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 disagree. The Providers can respond only insofar as they have knowledge. They could not, for example, provide any insight into the true nature or validity of any neutrality assertion they may receive. The Practitioners are the ones that are providing the basis for the neutrality certification that is provided by the ADR Provider. Both are completely justified IMHOI. Paul On 5/2/18, 5:31 PM, "Susan Payne" <susan.payne@valideus.com<mailto:susan.payne@valideus.com>> wrote:
I think we need to remind ourselves of why we are asking questions of
practitioners in the first place. As a group it was decided that
practitioners who have used the URS (which should be more than de
minimis
usage) may be able to provide the WG with insights on how the procedure
works in practice, both positives and negatives. So, do the rules
require one of the parties (for whom the practitioners are acting) to
do something which is impractical, for example. The questions flagged
by Greg and Georges do not do this. As has been pointed out, we
already have various questions for the providers which go to
neutrality/impartiality of the examiners. These questions should come
out of the practitioner's questionnaire.
Susan Payne
Head of Legal Policy | Valideus Ltd
28-30 Little Russell Street
London, WC1A 2HN, United Kingdom
E: susan.payne@valideus.com<mailto:susan.payne@valideus.com>
D: +44 20 7421 8255
T: +44 20 7421 8299
M: +44 7971 661175
-----Original Message-----
From: gnso-rpm-wg [mailto:gnso-rpm-wg-bounces@icann.org] On Behalf Of
Paul Keating
Sent: 02 May 2018 15:24
To: George Kirikos <icann@leap.com<mailto:icann@leap.com>>; 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
My questions were intended to investigate an area that has been the
cause of significant concern - particularly amongst the Respondent¹s
attorney side of things.
First, the presumption in the UDRP is that the panelists are in fact
neutral. While there is a provision for the ADR provider to state as
much, we have no insight into how that is determined and what, if any,
efforts are undertaken to investigate or police statements of neutrality.
Second, there is no guidance in any of the applicable rules dealing
with conflicts of interest and no guidance on how ³neutrality² is
actually determined, other than perhaps a statement from the panelist.
I have never seen or heard of any guidance provided to panelists by any
ADR provider.
Third, while I am happy that people discuss and edit the suggested
questions, I would like to point out a few things:
1. "actual or potential conflict² is a well-known ethical standard for
attorneys and they are well versed in its meaning. Most professional
conduct codes have restrictions that preclude attorneys (or their
firms) from accepting or acting on behalf of clients that have an
actual or potential conflict with pre-existing clients (or even past clients).
Conflicts are verified as a part of any new client intake. Conflicts
are measured in terms of the client and parties that are potentially
adverse to any client. Again, this is on a firm-wide basis and not
limited to individual attorneys. Unfortunately, it is less than clear
if these same rules apply when an attorney accepts an appointment as an
arbitrator with an ADR provider. And, the extend to which panelists
conduct conflicts checks (or even if they do) is unknown. Moreover,
there are a number of panelists who are not licensed attorneys.
2. I cannot see that any of the proposed questions are offensive in any
manner. As an attorney I would expect to conduct a full-fledged
conflicts check prior to accepting any appointment.
3. Contacts with third parties. This question is intended to go beyond
mere contacts with third parties and includes self-research, contact
and communications with anyone else (e.g. Partners, associates, etc).
The point is that the decision is supposed to be based entirely upon
the papers as filed and in the rare instance investigations undertaken
by the panel. However, there is nothing in the Rules that would
authorize, for example, research undertaken by anyone else and provided to the panelists.
4. These questions should also be directed to the ADR providers to
determine what extent, if any, they impose rules and to what extent, if
any, they police the issue of conflicts beyond mere reliance upon the
panelist statement.
Paul
On 5/2/18, 3:09 PM, "gnso-rpm-wg on behalf of George Kirikos"
<gnso-rpm-wg-bounces@icann.org on behalf of icann@leap.com<mailto:gnso-rpm-wg-bounces@icann.org%20on%20behalf%20of%20icann@leap.com>> wrote:
I agree with Michael. We can play around with the wording somewhat,
but it's an important issue. DomainNameWire.com had a story that some
might find of interest at:
/
Sincerely,
George Kirikos
416-588-0269
On Wed, May 2, 2018 at 8:54 AM, Michael Karanicolas
<mkaranicolas@gmail.com<mailto:mkaranicolas@gmail.com>> wrote:
"The Examiners are supposed to declare conflicts of interest, but
there is no instruction on how to implement that."
To me - that's a powerful argument as to why we should be including
these questions. It's an important area where the rules seem vague,
and there could be a need for greater clarity. Questions about
whether or not a strong standard is being carried out in practice
would be very relevant to making that determination.
That said - I do think there's room for improving the verbiage. I
agree that the phrase "actual or potentially adverse" could be
deleted from Q5. I think Q6 could be improved by narrowing it to
communications with a third party related to the dispute.
Best,
Michael Karanicolas
On Wed, May 2, 2018 at 9:28 AM, Nahitchevansky, Georges
<ghn@kilpatricktownsend.com<mailto:ghn@kilpatricktownsend.com>> wrote:
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] 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:
Roll call and updates to Statements of Interest (1 minute) Final
Status of Questions for Practitioners and Providers (9 minutes)
Report from the Documents Sub Team (20 minutes) Discussion on URS
Phase II proposal (59 minutes) See John McElwaine¹s original email
at:
and a Google Sheet with the proposal as tab one, and the responses
as tab two at:
whW
F
GZbuGpQnOgI/edit?usp=sharing
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>
________________________________
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, 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.
_______________________________________________
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I am recirculating what I previously sent. It has the questions just below my text. Again I urge these loaded questions be removed for the reasons I stated and that others like Greg and Scott have made. From: ghn@kilpatricktownsend.com Sent: May 2, 2018 8:29 AM To: gregshatanipc@gmail.com; julie.hedlund@icann.org Cc: 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> Cc: 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, 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.
I responded to your original email but do not see any further comments from you. Paul From: gnso-rpm-wg <gnso-rpm-wg-bounces@icann.org> on behalf of Georges Nahitchevansky <ghn@kilpatricktownsend.com> Date: Wednesday, May 2, 2018 at 4:02 PM To: Greg Shatan <gregshatanipc@gmail.com>, Julie Hedlund <julie.hedlund@icann.org> Cc: "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
I am recirculating what I previously sent. It has the questions just below my text. Again I urge these loaded questions be removed for the reasons I stated and that others like Greg and Scott have made.
From: ghn@kilpatricktownsend.com Sent: May 2, 2018 8:29 AM To: gregshatanipc@gmail.com; julie.hedlund@icann.org Cc: 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] On Behalf Of Greg Shatan Sent: Wednesday, May 2, 2018 1:05 AM To: Julie Hedlund <julie.hedlund@icann.org> Cc: 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> 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 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... pQnOgI/edit?usp=sharing 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 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, 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 https://mm.icann.org/mailman/listinfo/gnso-rpm-wg
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> on behalf of Georges Nahitchevansky <ghn@kilpatricktownsend.com> Date: Wednesday, May 2, 2018 at 2:28 PM To: Greg Shatan <gregshatanipc@gmail.com>, Julie Hedlund <julie.hedlund@icann.org> Cc: "gnso-rpm-wg@icann.org" <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] On Behalf Of Greg Shatan Sent: Wednesday, May 2, 2018 1:05 AM To: Julie Hedlund <julie.hedlund@icann.org> Cc: 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> 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 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... pQnOgI/edit?usp=sharing 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 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, 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 https://mm.icann.org/mailman/listinfo/gnso-rpm-wg
All, Paul, Just wanted to confirm that we are developing a survey that is completely voluntary in form? I am trying to look at our intended approach from a practical perspective. Whatever the expected response rate may be for a voluntary, external survey that seeks feedback on relatively complex issues (and with no reward/incentive to respondents), I can't imagine it being very high. If such a survey were to also include questions that may be interpreted as pressing (or perhaps suggesting some form of unintentional malfeasance) by those answering the questions, then I expect the response rate is going to be even lower, perhaps even approaching the zero range. In the past, I've assisted in the development of a few surveys that have gone out to legal practitioners and have learned the hard way that the experience in developing the survey (with all the good intentions and lofty goals involved), does not correlate to the experience of receiving the questionnaire and everything that is involved in completing. I'm sure many others are familiar with this same experience. On that basis, I believe we will be more successfull if we keep the perspective of the survey respondents at the forefront of the process. For example, do we have a current estimate on how long it will take the respondents to complete all the questions? If yes, that information should be included upfront. The survey tool itself should enable respondents to take breaks, save, and skip ahead to various questions, etc. Paul, in terms of your specific questions - if a survey respondent were to answer No to both parts of question 5, and yes to question 6, can you please clarify the policy implications of how you believe those answers should be interpreted by our WG? Thank you. Best regards, Claudio On Wed, May 2, 2018 at 10:38 AM, Paul Keating <Paul@law.es> wrote:
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> on behalf of Georges Nahitchevansky <ghn@kilpatricktownsend.com> Date: Wednesday, May 2, 2018 at 2:28 PM To: Greg Shatan <gregshatanipc@gmail.com>, Julie Hedlund < julie.hedlund@icann.org> Cc: "gnso-rpm-wg@icann.org" <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 <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> *Cc:* 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> 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 <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_ vbPfhKDpjYs66iBWjvwhWFGZbuGpQnOgI/edit?usp=sharing <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 https://mm.icann.org/mailman/listinfo/gnso-rpm-wg
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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 Sent: May 2, 2018 10:39 AM To: ghn@kilpatricktownsend.com; gregshatanipc@gmail.com; julie.hedlund@icann.org Cc: 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
There is no bias in the questions. The last time I responded to a conflicts/know your client question was last week in a response to my bank. I must also stand ready to provide them to governmental and other agencies (including the bar associations where I am a member). Conflicts to appear as a representative. This is a rather silly question don¹t you think? When I represent a client, my obligation regarding conflicts extends to my current client and any other past or present client. I have no conflict of interest obligation to parties adverse to the interests of my client because I am inherently in conflict with their interests (I represent my client, not them). Conversely, if I am a panelist my obligation extents to the system, the ADR provider and the parties to the proceeding. Panelists are not ³judges². Judges are either vetted via election our appointment. Their appearance in any case is closely monitored and they are ethically and legally bound to disclose any potential conflict. In fact, in the US they are required to avoid the ³appearance² of impropriety. Their failure to disclose or self-disqualify leads to appeals and discipline. Even so, there is a history of successful appeals as a result of a failure to disclose. There is no such process for panelists and personally I am unwilling to NOT investigate this issue. I am not trying to prove a point. I am merely asking questions. If there is no problem there is no problem. If there is, it must be addressed. I grow concerned about people trying to shut down discussions and investigations. They are usually trying to hide something. Sincerely, Paul Raynor Keating, Esq. Law.es <http://law.es/> Tel. +34 93 368 0247 (Spain) Tel. +44.7531.400.177 (UK) Tel. +1.415.937.0846 (US) Fax. (Europe) +34 93 396 0810 Fax. (US)(415) 358.4450 Skype: Prk-Spain email: Paul@law.es THE INFORMATION CONTAINED IN THIS E-MAIL IS CONFIDENTIAL AND MAY CONTAIN INFORMATION SUBJECT TO THE ATTORNEY/CLIENT OR WORK-PRODUCT PRIVILEGE. THE INFORMATION IS INTENDED ONLY FOR THE USE OF THE INDIVIDUAL OR ENTITY TO WHOM IT IS ADDRESSED. IF YOU ARE NOT THE INTENDED RECIPIENT, NO WAIVER OF PRIVILEGE IS MADE OR INTENDED AND YOU ARE REQUESTED TO PLEASE DELETE THE EMAIL AND ANY ATTACHMENTS. Circular 230 Disclosure: To assure compliance with Treasury Department rules governing tax practice, we hereby inform you that any advice contained herein (including in any attachment) (1) was not written or intended to be used, and cannot be used, by you or any taxpayer for the purpose of avoiding any penalties that may be imposed on you or any taxpayer and (2) may not be used or referred to by you or any other person in connection with promoting, marketing or recommending to another person any transaction or matter addressed herein. NOTHING CONTAINED IN THIS EMAIL SHALL CONSTITUTE THE FORMATION OF AN ATTORNEY/CLIENT RELATIONSHIP; SUCH A RELATIONSHIP MAY BE FORMED WITH THIS FIRM AND ATTORNEY ONLY BY SEPARATE FORMAL WRITTEN ENGAGEMENT AGREEMENT, WHICH THIS IS NOT. IN THE ABSENCE OF SUCH AN AGREEMENT, NOTHING CONTAINED HEREIN SHALL CONSTITUTE LEGAL ADVICE From: Georges Nahitchevansky <ghn@kilpatricktownsend.com> Date: Wednesday, May 2, 2018 at 6:51 PM To: Paul Keating <paul@law.es>, Greg Shatan <gregshatanipc@gmail.com>, Julie Hedlund <julie.hedlund@icann.org> Cc: "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:
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 Sent: May 2, 2018 10:39 AM To: ghn@kilpatricktownsend.com; gregshatanipc@gmail.com; julie.hedlund@icann.org Cc: 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> on behalf of Georges Nahitchevansky <ghn@kilpatricktownsend.com> Date: Wednesday, May 2, 2018 at 2:28 PM To: Greg Shatan <gregshatanipc@gmail.com>, Julie Hedlund <julie.hedlund@icann.org> Cc: "gnso-rpm-wg@icann.org" <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] On Behalf Of Greg Shatan Sent: Wednesday, May 2, 2018 1:05 AM To: Julie Hedlund <julie.hedlund@icann.org> Cc: 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> 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 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 GpQnOgI/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: I grow equally concerned when I see loaded questions that are being used to further an agenda. You email makes my point. When you provide a response to your bank as to whether you have conflict, do you explain what you specifically did for the conflict check, what records you looked at or kept, who you spoke to, etc. Your obligations are governed by rules as an attorney. You are only questioned as to whether you did the conflict check properly when someone challenges that you have a conflict of interest. As to the conflict to appear as a representative, perhaps you do not understand the point. The point is that a conflict check by a representative is no different than a conflict check for a panelist. The panelist checks to see if he or she has a conflict as to the parties to the dispute. If you take on a matter as an attorney for a client you check to see if you have a conflict as to the other party. So you must run a conflict check. So should we check that all representatives conduct conflicts check properly, what they look at, what records they retain, who they speak with and are in fact conflict free. Again, if one believes that a representative has a conflict, you issue a challenge. My judge point is spot on. Whether a judge is appointed or elected you do not know whether the judge has a conflict in a particular matter. The judge when appointed makes a determination whether or not it can take on the matter or has a conflict. We trust that judges are doing this properly and recuse themselves when need be. If you think a judge has a conflict in a particular matter, you can challenge the judge. Why should Panelists be held to a different standard. You are perfectly free to challenge any panelist appointment. The bottom line here is that you trying to push through at the last minute partisan type questions to create issues. The only inquiry at this point should be on whether panelists appointed act impartially as they are supposed to do. The providers take steps to assure such and that should be the only line of inquiry as to what is being done and whether the Providers have had any issues in regards to impartiality. Georges Nahitchevansky Kilpatrick Townsend & Stockton LLP The Grace Building | 1114 Avenue of the Americas | New York, NY 10036-7703 office 212 775 8720 | fax 212 775 8820 ghn@kilpatricktownsend.com<mailto:ghn@kilpatricktownsend.com> | My Profile<http://www.kilpatricktownsend.com/en/People/N/NahitchevanskyGeorges> | vCard<http://www.kilpatricktownsend.com/vcard/GeorgesNahitchevansky.vcf> From: Paul Keating [mailto:Paul@law.es] Sent: Wednesday, May 2, 2018 1:34 PM To: Nahitchevansky, Georges <ghn@kilpatricktownsend.com>; Greg Shatan <gregshatanipc@gmail.com>; Julie Hedlund <julie.hedlund@icann.org> Cc: 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 There is no bias in the questions. The last time I responded to a conflicts/know your client question was last week in a response to my bank. I must also stand ready to provide them to governmental and other agencies (including the bar associations where I am a member). Conflicts to appear as a representative. This is a rather silly question don't you think? When I represent a client, my obligation regarding conflicts extends to my current client and any other past or present client. I have no conflict of interest obligation to parties adverse to the interests of my client because I am inherently in conflict with their interests (I represent my client, not them). Conversely, if I am a panelist my obligation extents to the system, the ADR provider and the parties to the proceeding. Panelists are not "judges". Judges are either vetted via election our appointment. Their appearance in any case is closely monitored and they are ethically and legally bound to disclose any potential conflict. In fact, in the US they are required to avoid the "appearance" of impropriety. Their failure to disclose or self-disqualify leads to appeals and discipline. Even so, there is a history of successful appeals as a result of a failure to disclose. There is no such process for panelists and personally I am unwilling to NOT investigate this issue. I am not trying to prove a point. I am merely asking questions. If there is no problem there is no problem. If there is, it must be addressed. I grow concerned about people trying to shut down discussions and investigations. They are usually trying to hide something. Sincerely, Paul Raynor Keating, Esq. Law.es<http://law.es/> Tel. +34 93 368 0247 (Spain) Tel. +44.7531.400.177 (UK) Tel. +1.415.937.0846 (US) Fax. (Europe) +34 93 396 0810 Fax. (US)(415) 358.4450 Skype: Prk-Spain email: Paul@law.es<mailto:Paul@law.es> THE INFORMATION CONTAINED IN THIS E-MAIL IS CONFIDENTIAL AND MAY CONTAIN INFORMATION SUBJECT TO THE ATTORNEY/CLIENT OR WORK-PRODUCT PRIVILEGE. THE INFORMATION IS INTENDED ONLY FOR THE USE OF THE INDIVIDUAL OR ENTITY TO WHOM IT IS ADDRESSED. IF YOU ARE NOT THE INTENDED RECIPIENT, NO WAIVER OF PRIVILEGE IS MADE OR INTENDED AND YOU ARE REQUESTED TO PLEASE DELETE THE EMAIL AND ANY ATTACHMENTS. Circular 230 Disclosure: To assure compliance with Treasury Department rules governing tax practice, we hereby inform you that any advice contained herein (including in any attachment) (1) was not written or intended to be used, and cannot be used, by you or any taxpayer for the purpose of avoiding any penalties that may be imposed on you or any taxpayer and (2) may not be used or referred to by you or any other person in connection with promoting, marketing or recommending to another person any transaction or matter addressed herein. NOTHING CONTAINED IN THIS EMAIL SHALL CONSTITUTE THE FORMATION OF AN ATTORNEY/CLIENT RELATIONSHIP; SUCH A RELATIONSHIP MAY BE FORMED WITH THIS FIRM AND ATTORNEY ONLY BY SEPARATE FORMAL WRITTEN ENGAGEMENT AGREEMENT, WHICH THIS IS NOT. IN THE ABSENCE OF SUCH AN AGREEMENT, NOTHING CONTAINED HEREIN SHALL CONSTITUTE LEGAL ADVICE From: Georges Nahitchevansky <ghn@kilpatricktownsend.com<mailto:ghn@kilpatricktownsend.com>> Date: Wednesday, May 2, 2018 at 6:51 PM To: Paul Keating <paul@law.es<mailto:paul@law.es>>, Greg Shatan <gregshatanipc@gmail.com<mailto:gregshatanipc@gmail.com>>, Julie Hedlund <julie.hedlund@icann.org<mailto:julie.hedlund@icann.org>> Cc: "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: 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
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 *Sent:* May 2, 2018 10:39 AM *To:* ghn@kilpatricktownsend.com; gregshatanipc@gmail.com; julie.hedlund@icann.org *Cc:* 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> on behalf of Georges Nahitchevansky <ghn@kilpatricktownsend.com> Date: Wednesday, May 2, 2018 at 2:28 PM To: Greg Shatan <gregshatanipc@gmail.com>, Julie Hedlund < julie.hedlund@icann.org> Cc: "gnso-rpm-wg@icann.org" <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 <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> *Cc:* 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> 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 <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_vbPfhKDpjY s66iBWjvwhWFGZbuGpQnOgI/edit?usp=sharing <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 https://mm.icann.org/mailman/listinfo/gnso-rpm-wg
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Michael, (I see that you’ve emailed just Phil & myself. I’m looping in the other person you’re talking about, Georges Nahitchevansky.) Respectfully, I deferred to the decision of leadership that Examiner Q15 (Providers) be included in the survey. My objection remains. It can’t be a surprise that there are other people on the working group that also believe questions should be unbiased & linked to current rules. We can agree to disagree, but this kind of derision unnecessary & unhelpful. Cyntia King E: <mailto:cking@modernip.com> cking@modernip.com O: +1 81-ModernIP C: +1 818.209.6088 From: gnso-rpm-wg <gnso-rpm-wg-bounces@icann.org> On Behalf Of Michael Karanicolas Sent: Wednesday, May 2, 2018 3:57 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 <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> mailto:gnso-rpm-wg-bounces@icann.org] On Behalf Of Greg Shatan Sent: Wednesday, May 2, 2018 1:05 AM To: Julie Hedlund < <mailto:julie.hedlund@icann.org> julie.hedlund@icann.org> Cc: <mailto:gnso-rpm-wg@icann.org> 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 < <mailto:julie.hedlund@icann.org> 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
While I note that this will be discussed further within the SWG call (currently tentatively set for tomorrow), I still fail to see how the proposed questions are bias. It would rather seem to me that you are presuming they are bias because there may be panelists who state that they do not undertake a conflict check? Perhaps you can explain your position as it relates directly to the questions at issue. Thank you, Paul Keating From: gnso-rpm-wg <gnso-rpm-wg-bounces@icann.org> on behalf of Cyntia King <cking@modernip.com> Date: Thursday, May 3, 2018 at 5:42 PM To: 'Michael Karanicolas' <mkaranicolas@gmail.com>, "'Corwin, Philip via gnso-rpm-wg'" <gnso-rpm-wg@icann.org>, Georges Nahitchevansky <ghn@kilpatricktownsend.com> Subject: Re: [gnso-rpm-wg] REMINDER: Proposed agenda for RPM Working Group call on 25 April 2018 at 1700 UTC
Michael, (I see that you¹ve emailed just Phil & myself. I¹m looping in the other person you¹re talking about, Georges Nahitchevansky.)
Respectfully, I deferred to the decision of leadership that Examiner Q15 (Providers) be included in the survey. My objection remains.
It can¹t be a surprise that there are other people on the working group that also believe questions should be unbiased & linked to current rules.
We can agree to disagree, but this kind of derision unnecessary & unhelpful.
Cyntia King E: cking@modernip.com <mailto:cking@modernip.com> O: +1 81-ModernIP C: +1 818.209.6088
From: gnso-rpm-wg <gnso-rpm-wg-bounces@icann.org> On Behalf Of Michael Karanicolas Sent: Wednesday, May 2, 2018 3:57 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 Sent: May 2, 2018 10:39 AM To: ghn@kilpatricktownsend.com; gregshatanipc@gmail.com; julie.hedlund@icann.org Cc: 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> on behalf of Georges Nahitchevansky <ghn@kilpatricktownsend.com> Date: Wednesday, May 2, 2018 at 2:28 PM To: Greg Shatan <gregshatanipc@gmail.com>, Julie Hedlund <julie.hedlund@icann.org> Cc: "gnso-rpm-wg@icann.org" <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 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 5. Notice of agenda for 09 May meeting (1 minute)
Best regards, Mary, Julie, Ariel and Berry
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Hi All, Perhaps Greg or Staff could post the questions that Greg has raised as an issue in the Practitioners questionnaire (since they are not attached here)? It is of course important to consider the Subteam review, but we also brought these questions to the full WG for a reason - to request input. I don't remember who proposed the Examiner questions, but perhaps they could go offline with the Practitioners Subteam to work out a variation that would be acceptable to everyone. Staff, do you remember? I am sure we can work this out with a little discussion... Best regards, Kathy On 5/2/2018 1:04 AM, Greg Shatan wrote:
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<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_vbPfhKDpjYs66iBWjvwhWFGZbuGpQnOgI/edit?usp=sharing<https://docs.google.com/spreadsheets/d/1apbVrFayn_vbPfhKDpjYs66iBWjvwhWFGZbuGpQnOgI/edit?usp=sharing> 5. Notice of agenda for 09 May meeting (1 minute)
Best regards,
Mary, Julie, Ariel and Berry
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Hi Kathy and All, The questions were proposed by Paul Keating. Staff has listed them below. Kind regards, Mary, Ariel, Berry and Julie --- Excerpted questions: 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 <gnso-rpm-wg-bounces@icann.org> on behalf of Kathy Kleiman <kathy@kathykleiman.com> Date: Wednesday, May 2, 2018 at 9:09 AM To: "gnso-rpm-wg@icann.org" <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 Hi All, Perhaps Greg or Staff could post the questions that Greg has raised as an issue in the Practitioners questionnaire (since they are not attached here)? It is of course important to consider the Subteam review, but we also brought these questions to the full WG for a reason - to request input. I don't remember who proposed the Examiner questions, but perhaps they could go offline with the Practitioners Subteam to work out a variation that would be acceptable to everyone. Staff, do you remember? I am sure we can work this out with a little discussion... Best regards, Kathy On 5/2/2018 1:04 AM, Greg Shatan wrote: 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> 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: Roll call and updates to Statements of Interest (1 minute) Final Status of Questions for Practitioners and Providers (9 minutes) Report from the Documents Sub Team (20 minutes) 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... [docs.google.com] 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 https://mm.icann.org/mailman/listinfo/gnso-rpm-wg _______________________________________________ gnso-rpm-wg mailing list gnso-rpm-wg@icann.org https://mm.icann.org/mailman/listinfo/gnso-rpm-wg [avast.com]Virus-free. www.avast.com [avast.com]
Hello all - to the extent that Paul’s questions are directed toward practitioners who are also Examiners, staff notes that the survey to be sent to the three URS Providers includes a section on the training, selection and disqualification of Examiners. The providers will be asked about how they verify an Examiner’s impartiality, their conflicts of interest policies, and whether and how Examiners are removed from the pool. The URS Providers Sub Team has also included a specific question as to whether any party has ever raised an allegation of Examiner partiality, non-independence, or bias. In addition, the three providers’ Supplemental Rules include, to varying degrees, provisions dealing with impartiality. These range from a voluntary disclosure of potential conflicts of interest (ADNDRC) to taking an oath (FORUM), to express provisions that require communications between Examiners and parties to take place only through the provider’s case manager or assigned administrator. We hope this information is helpful, and that to the extent it does not address any remaining concerns the Practitioners Sub Team can perhaps develop acceptable specific questions offline, as Kathy has suggested. Cheers Mary, Julie, Ariel & Berry From: gnso-rpm-wg <gnso-rpm-wg-bounces@icann.org> on behalf of Julie Hedlund <julie.hedlund@icann.org> Date: Wednesday, May 2, 2018 at 09:14 To: Kathy Kleiman <kathy@kathykleiman.com>, "gnso-rpm-wg@icann.org" <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 Hi Kathy and All, The questions were proposed by Paul Keating. Staff has listed them below. Kind regards, Mary, Ariel, Berry and Julie --- Excerpted questions: 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 <gnso-rpm-wg-bounces@icann.org> on behalf of Kathy Kleiman <kathy@kathykleiman.com> Date: Wednesday, May 2, 2018 at 9:09 AM To: "gnso-rpm-wg@icann.org" <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 Hi All, Perhaps Greg or Staff could post the questions that Greg has raised as an issue in the Practitioners questionnaire (since they are not attached here)? It is of course important to consider the Subteam review, but we also brought these questions to the full WG for a reason - to request input. I don't remember who proposed the Examiner questions, but perhaps they could go offline with the Practitioners Subteam to work out a variation that would be acceptable to everyone. Staff, do you remember? I am sure we can work this out with a little discussion... Best regards, Kathy On 5/2/2018 1:04 AM, Greg Shatan wrote: 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... [docs.google.com]<https://urldefense.proofpoint.com/v2/url?u=https-3A__docs.google.com_spreads...> 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 _______________________________________________ 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 [https://ipmcdn.avast.com/images/icons/icon-envelope-tick-round-orange-animated-no-repeat-v1.gif][avast.com]<https://urldefense.proofpoint.com/v2/url?u=https-3A__www.avast.com_sig-2Demail-3Futm-5Fmedium-3Demail-26utm-5Fsource-3Dlink-26utm-5Fcampaign-3Dsig-2Demail-26utm-5Fcontent-3Demailclient-26utm-5Fterm-3Dicon&d=DwMDaQ&c=FmY1u3PJp6wrcrwll3mSVzgfkbPSS6sJms7xcl4I5cM&r=adDIs0WEx_lLwFfrsdovxTYY8GkRHo5ibc8SR3Npdh8&m=A057hXgiBlYR7qZqbl411Efd7Rbl3a2sebEn_YMleYQ&s=-gzdow33QzQSMUddmGvM7cGbmsRdZy_LoGYlaL8952E&e=> Virus-free. www.avast.com [avast.com]<https://urldefense.proofpoint.com/v2/url?u=https-3A__www.avast.com_sig-2Dema...>
participants (13)
-
claudio di gangi -
Corwin, Philip -
Cyntia King -
George Kirikos -
Greg Shatan -
Julie Hedlund -
Kathy Kleiman -
Mary Wong -
Michael Karanicolas -
Nahitchevansky, Georges -
Paul Keating -
Susan Payne -
Tushnet, Rebecca