RE: [council] FW: Outside legal Support for WS2 --- FW: Slides and AC recording CCWG Accountability Webinar 22 August 2016

[Phil Corwin <psc@xxxxxxxxxxx>]

Thanks Stephanie

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: Stephanie Perrin [mailto:stephanie.perrin@xxxxxxxxxxxxxxxx]
Sent: Wednesday, August 24, 2016 7:57 PM
To: Phil Corwin; council@xxxxxxxxxxxxxx
Subject: Re: [council] FW: Outside legal Support for WS2 --- FW: Slides and AC 
recording CCWG Accountability Webinar 22 August 2016


Thanks for sharing this Phil.  I think all your points are spot on, and I am 
wondering how we can elevate these concerns now and get the budget increased, 
and oversight of the decision-making regarding the procurement of legal advice 
improved.

Stephanie Perrin

On 2016-08-24 11:46, Phil Corwin wrote:
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<mailto: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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