[PC-NCSG] Fwd: [council] FW: Outside legal Support for WS2 --- FW: Slides and AC recording CCWG Accountability Webinar 22 August 2016
Stephanie Perrin
stephanie.perrin
Thu Aug 25 02:58:06 EEST 2016
I think Phil is spot on here. We should perhaps elevate the concerns now??
Stephanie
-------- Forwarded Message --------
Subject: [council] FW: Outside legal Support for WS2 --- FW: Slides and
AC recording CCWG Accountability Webinar 22 August 2016
Date: Wed, 24 Aug 2016 15:46:11 +0000
From: Phil Corwin <psc at vlaw-dc.com>
To: council at gnso.icann.org <council at gnso.icann.org>
Fellow Council members:
FYI, I am sharing these thoughts on yesterday?s legal support
presentation, which I just shared with BC members.
Best to all, Philip
*Philip S. Corwin, Founding Principal*
*Virtualaw LLC*
*1155 F Street, NW*
*Suite 1050*
*Washington, DC 20004*
*202-559-8597/Direct*
*202-559-8750/Fax*
*202-255-6172/Cell***
**
*Twitter: @VlawDC*
*/"Luck is the residue of design" -- Branch Rickey/*
*From:*Phil Corwin
*Sent:* Wednesday, August 24, 2016 11:39 AM
*To:* bc-private icann.org (bc-private at icann.org)
*Subject:* Outside legal Support for WS2 --- FW: Slides and AC recording
CCWG Accountability Webinar 22 August 2016
BC members:
Late yesterday I participated in a call for Council members regarding
budgeting for WS2 Accountability issues. Attached are the materials used
on the call.
As you will note on the first page of the CCWG-Budget ownership
document, the amount budgeted for external legal advice for all of the
WS2 issues (and there are 9 separate tracks) is:
Professional fees: using the legal advice for the total project over 2
years ($14m), 10% or $1.4m for WS2 considered a reasonable.
_That is, just 10% of the outside legal costs incurred for WS1 has been
budgeted for WS2._
When the Q&A/comment portion of the call opened up I made the following
points:
?We all support responsible budgeting and paring of unnecessary
expenses in all ICANN funded work
?That said, WS2 are not less important than WS1 issues ? they are just
issues that did not need to be resolved prior to the transition. Many
are quite important to assuring post-transition ICANN accountability
?Several of the WS2 topics ? most notably staff accountability,
transparency (which encompasses disclosure of internal staff
communications and procedures) and good faith conduct in Board removal
discussions ? are ones where participating community members are more
likely to desire assuredly impartial outside legal advice rather than
that coming from ICANN?s own legal department
?So, while it is reasonable to assume that WS2 outside legal expenses
will be less than those for WS1 (e.g., there will be no need to draft
and vet extensive new Bylaws or Articles of Incorporation provisions) a
10% cap may be unrealistically low
On the call I also investigated the process for securing more funding if
my concerns are borne out in practice.
Page 3 of the PDF contains this information:
3. External legal advice
?legal committee: to evaluate needs for legal advice, and determine
adequate source to provide the answer, privileging the highest value
(value = benefit / cost).
?Legal committee membership to include an ICANN legal representative,
community members with experience in procuring external legal advice,
and the CCWG co-chairs.
I asked on the call how the legal committee would reach decisions on
funding needs and, in particular, whether the ?ICANN legal
representative? would have an equal voice. I was told that the
individual from ICANN Legal would not have the same weight in making
decisions, but I think we will need to see how this process plays out in
practice.
Slide 4 of the attached PPT has this information about the role of the
Legal Committee:
Role :
Filter, analyze, refine (ensure clarity), and approve requests for legal
advice
Determine which firm is best suited to respond
Process :
The Committee meets at least once a month
Based on subgroup requests documented and share before the meeting,
Rapporteurs may attend relevant part of the call to discuss their requests
LC ensures that request is a legal issue (not a policy one)
With support from PCST, LC tracks legal expenses with clear distinction
between what is related to its scope vs any other Legal costs.
Counsel may be invited to attend parts of the LC meeting to ensure
clarity of expectations and context (reminder : /Counsel participation
to CCWG and subgroup calls is exceptional only/)
Composition based on WS1 Legal subteam executive team, ie :
Le?n Sanchez (co-chair, lead)
Samantha Eisner (support)
Athina Fragkouli
Robin Gross
David McAuley
Sabine Meyer
Edward Morris
Greg Shatan
The final page of the attached PPT has this additional information
regarding the process within the Legal Committee:
Proposed guidelines for the Legal Committee:
If Icann Legal already has an answer available to the question, it can
be shared immediately to avoid extra costs.
The Committee may direct the request at ICANN Legal or external firms,
based on a case by case assessment.
Decisions would have to take into account costs, delays, respective
skills, as well as potential requirement for ?independent? advice.
The Committee is encouraged to use ICANN Legal as much as possible in
order to manage costs effectively.
Sidley & Adler will coordinate to decide which firm is best suited to
address requests certified to CCWG Independent Counsel
If the CCWG requests advice from Jones Day, then Jones Day should either
(a) disclose that ICANN (and not the CCWG) is their client for purposes
of the memo or (b) enter into an engagement specifically with the CCWG
as client (same as Sidley and Adler), and that ICANN has provided a
waiver of conflict of interest.
Hiring of other firms for specific expertise would be subject to
CCWG-ACCT and Icann Legal prior approval (similar process as during WS1)
Once the LC has determined it needs to hire external legal counsel it
forwards the request with relevant details, including estimated costs
and a report from the PCST on the financial impact, to the Co-Chairs for
approval.
The Co-Chairs will consider the request and the financial impact as soon
as possible and provide a formal response to the LC which will be
documented on the CCWG WS2 Wiki if approved.
Generally, I believe that the use of a Legal Committee to authorize and
track outside legal expenses is sound. However, I do have some concern
that the determinations of the Legal Committee are subject to final
review and decision-making by the CCWG Co-Chairs. Further, it came out
in the call that the final decision on any request for funds beyond the
allocated $1.4 million will be made by the Board, which raises the
disturbing possibility that the Board could veto a request for legal
advice integral to final decisions on such matters as staff
accountability, organizational transparency, and conduct in Board
removal proceedings.
I do not know if there is any way to get the $1.4 million cap
reconsidered; it seemed on the call that it was set in stone. I
certainly hope that it is sufficient to provide needed outside legal
support for the remaining accountability work, but I did want to get my
concerns on the record now in the event that the reality proves otherwise.
Best to all,
Philip
*Philip S. Corwin, Founding Principal*
*Virtualaw LLC*
*1155 F Street, NW*
*Suite 1050*
*Washington, DC 20004*
*202-559-8597/Direct*
*202-559-8750/Fax*
*202-255-6172/Cell*
**
*Twitter: @VlawDC*
*/"Luck is the residue of design" -- Branch Rickey/*
*From:*owner-council at gnso.icann.org
<mailto:owner-council at gnso.icann.org>
[mailto:owner-council at gnso.icann.org] *On Behalf Of *Nathalie Peregrine
*Sent:* Tuesday, August 23, 2016 7:09 PM
*To:* council at gnso.icann.org <mailto:council at gnso.icann.org>
*Cc:* gnso-secs at icann.org <mailto:gnso-secs at icann.org>
*Subject:* [council] Slides and AC recording CCWG Accountability Webinar
22 August 2016
Dear all,
Please find the presentations attached and the AC recording (audio and
slides) of the*CCWG Accountability webinar held today on 22 August
2016:* https://icann.adobeconnect.com/p8fu99qpt7d/
<https://icann.adobeconnect.com/p8fu99qpt7d/?OWASP_CSRFTOKEN=4a5606fac094afb3d2208483c45a1f0ddd829a9db9b371bb3396de9d6dcac76e>
Kind regards,
Nathalie
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