Subject: Response from ICANN Legal questions from Guidelines For Standard of Conduct...Subgroup
From: Karen Mulberry <[email-masked]>
To: Lori Schulman <[email-masked]>
Cc: León Felipe Sánchez Ambía<[email-masked]>, Mathieu Weill <[email-masked]>, "Thomas Rickert" <[email-masked]>, ACCT-Staff <[email-masked]>
Date: Wed, 16 Nov 2016 00:01:26 +0000

Here is a response from ICANN Legal to the questions that the Guidelines
Subgroup raised.

Karen Mulberry
Multistakeholder Strategy and Strategic Initiatives
ICANN

Here’s the response from ICANN Legal

There has not been any conflict assessment of this issue, and indeed no
conflict arises.

The ICANN legal team does not report to the Board.  The ICANN legal team's
obligation is to the organization and to uphold the Bylaws.  The ICANN
Bylaws now include a right of the community to directly remove Board
members, and also allow for, at Section 20.2, the indemnification of
community members who participate in good faith in those removal
proceedings.  It is ICANN's obligation to uphold that Bylaw.

Providing guidelines to the community on what "good faith" could mean in
these circumstances was recommended by ICANN.  It is of benefit to all - the
ICANN community, board and organization, to understand and agree upon what
conduct is appropriate in these circumstances.  This is a collective - and
not an adverse - effort.  The guidelines developed by the community are not
expected to be overly burdensome or restrictive, but to provide some path of
"if you do x​ while participating in the conversation, that tends to
demonstrate good faith".

There could be concerns, of course, depending on how the guidelines are
drafted, as to whether they meet the requirements of law.  For example, a
guideline that suggests that "good faith" participation allows willful
avoidance of facts (which, of course, is not part of the group's
deliberations to date) should not be acceptable to any attorney reviewing
the document, whether they are with ICANN's legal department or external.
It will also be very important to understand if the ICANN legal department
identifies any potential legal issues with the text as drafted, as that
could impact whether the Board is in a position to accept the recommendation
based on issues of legality.

We recommend, as a starting point, that the guidelines be presented to the
ICANN legal department for review. If it were to occur that the ICANN legal
department raises a challenge to any of the guidelines, and it is believed
by those participating in the discussion that there would be a benefit to
obtain additional advice or a different viewpoint, that might be an
appropriate point for reference to external counsel.
— 
Samantha Eisner
Deputy General Counsel, ICANN
12025 Waterfront Drive, Suite 300
Los Angeles, California 90094
USA
Direct Dial: +1 310 578 8631

From: Lori Schulman <[email-masked]>
Date: Tuesday, October 18, 2016 at 7:08 PM
To: MSSI Secretariat <[email-masked]>
Subject: Question for CCWG Legal Sub Team from Guidelines For Standard of
Conduct...Subgroup

Dear Secretariat,
 
Our subgroup has a question regarding legal review of the Draft Guidelines
for Standard of Conduct Presumed to Be Good Faith with Exercising Removal of
ICANN Board Members. We discussed the issue at our October 3 meeting and we
do not anticipate the need for heavy assistance.   However, it would be
prudent, once the draft guidelines are completed, to have a review by a
legal expert with substantial experience in California nonprofit governance.
We want to make sure that there are no red flags or precedents contrary to
our recommendations. Diligence requires process and as long as we have a
clear and documented process, we should be able to meet a “good faith”
standard.  However, given the quirks of CA law, the subgroup would not want
to assume anything.  We would anticipate maybe 8-10 hours of very
experienced, independent attorney time at a maximum.  Our understanding is
that we are to ask for the assistance of the ICANN in-house legal team
before we go to outside counsel.  This seems to be a prudent, cost-effective
measure.  However, we are concerned about a possible conflict of interest
with an in-house team that essentially reports to the Board.   Has this
particular conflict been vetted with regard to creating guidelines for good
faith conduct for petitioning for a Board member’s removal, or the entire
Board for that matter, and having a legal team that reports to the Board
review it?  If so, would you kindly direct us to the opinion?  If not, may
we have guidance in this area?
 
We are happy to discuss our concerns with members of the Legal Sub team as
necessary.
 
Lori

Lori Schulman
Senior Director, Internet Policy
International Trademark Association
1250 Connecticut Avenue, Suite 200
Washington DC, USA
+1-202-704-0408, skype: lsschulman
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