[NCSG-PC] SOI Task Force response

[Kathy Kleiman]

Hi All,

I've added some text in suggesting mode. I've now checked with senior 
attorneys in various states and the BC contention is simply wrong: 
attorneys can (and must) generally disclose WHO their client is, but not 
WHAT they've discussed.  In policy making proceedings, attorneys almost 
always disclosure their clients, except in very, very rare circumstances.

So I have added (with... showing a jump to a later part of the text), 
https://docs.google.com/document/d/1rmJPMhoTWEh37Ewh-ticj7WMgwcQQ7VMZkzIHLlbCVs/edit: 


Sorry for late input!

Best, Kathy

--------------------------- NCSG SOI Comments --------------------------

... Public processes benefit from knowing who is representing who and 
then balancing the interests of the many different participants in a 
proceeding.

...

Finally, NCSG must respectfully contest the underlying proposition by 
the BC that attorneys cannot disclose their clients in policymaking 
proceedings.  In very few circumstances is the “fact of the 
representation” of a lawyer considered confidential. We provide a few 
examples:

[1] See Cal. Formal Op. 2011-182 (2011). "In most situations, the 
identity of a client is not considered confidential and in such 
circumstances Attorney may disclose the fact of the representation to 
Prospective Client without Witness Client's consent." Citing to Los 
Angeles County Bar Association Professional Responsibility and Ethics 
Committee Op. 456 
(1989).https://www.hklaw.com/en/insights/publications/2018/03/aba-clarifies-lawyers-confidentiality-obligations 
<https://www.hklaw.com/en/insights/publications/2018/03/aba-clarifies-lawyers-confidentiality-obligations>

[2] Supreme Court of Pennsylvania, The Rules of Professional Conduct.

3.9 Advocate in Nonadjudicative Proceedings

A lawyer representing a client before a legislative body or 
administrative agency in a nonadjudicative proceeding shall disclose 
that the appearance is in a representative capacity and shall conform to 
the provisions of Rules 3.3(a) through (c), 3.4(a) through (c), and 3.5.

https://www.padisciplinaryboard.org/Storage/media/pdfs/20210920/140616-rpc2021-08-25amended.pdf 
<https://www.padisciplinaryboard.org/Storage/media/pdfs/20210920/140616-rpc2021-08-25amended.pdf>

We look forward to a rapid completion of this important discussion and 
to full and fair disclosure in the future!

-------------


On 4/7/2023 1:05 PM, Johan Helsingius wrote:
> On 07/04/2023 17:32, Akinremi Peter Taiwo wrote:
>
>> Is there any justification as to why lawyers/lobbyists/consultants 
>> should not disclose their identity?
>
> "The BC is not in favor of eliminating a swath of ICANN participants
>  simply because they are ethically bound to not disclose their client
>  relationships.  There are myriad reasons – not the least of which would
>  be the fact that disclosure of those being represented could invite
>  even more gaming into the ICANN system.  For example, an attorney
>  representing a new gTLD applicant could be compelled to disclose
>  his/her relationship with that applicant, inviting a competing
>  application.  That’s just one example."
>
> We are definitely countering this. I will post final version later
> today (deadline is today).
>
>     Julf

-- 
Kathy Kleiman
President, Domain Name Rights Coalition
-------------- next part --------------
An HTML attachment was scrubbed...
URL: <http://lists.ncsg.is/pipermail/ncsg-pc/attachments/20230407/355a2deb/attachment.htm>