[council] FW: Outside legal Support for WS2 --- FW: Slides and AC recording CCWG Accountability Webinar 22 August 2016
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@xxxxxxxxx)
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 :
León 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@xxxxxxxxxxxxxx<mailto:owner-council@xxxxxxxxxxxxxx>
[mailto:owner-council@xxxxxxxxxxxxxx] On Behalf Of Nathalie Peregrine
Sent: Tuesday, August 23, 2016 7:09 PM
To: council@xxxxxxxxxxxxxx<mailto:council@xxxxxxxxxxxxxx>
Cc: gnso-secs@xxxxxxxxx<mailto:gnso-secs@xxxxxxxxx>
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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Attachment:
CCWG - Budget ownership[1].pdf Attachment:
CCWG Budget Legal cost control mechanismsV4MW.pptx
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