RE: [registrars] * Final day for receiving motions to amend Budget motion.

["John Berryhill" <john@xxxxxxxxxxxxxxxxx>]

>I am not comfortable having that information in the hands of other 
>than an elected officer.

This would, of course, be a necessary consequence of the parallel proposal
to have ICANN manage the treasury.

To review, the RC funds are held in an attorney trust account under the
Pennsylvania IOLTA program (www.paiolta.org).  Interest on the account
accrues to the benefit of the IOLTA program, which is the legal "owner" of
the account.  As nominated trustee of the account, I derive no personal
benefit from such position, and any time spent on the account is my personal
contribution to the RC.

Transactions made in this account are subject to attorney confidentiality,
and cannot be disclosed to other than the RC excom, as the RC is the client
for the purpose of the account.  

The short of it is that if any information about transactions in the account
are disclosed without authorization of the Excom, then I can be hled
personally liable and disbarred.

The details of this arrangement are governed by the following disciplinary
regulations:

Day-to-day transactions in the account are monitored by Cristin Donahue.
She does not have signatory authority over the account, as only a licensed
attorney can do so.  Accordingly, she reports payments and balances to the
RC Excom.  With respect to disbursements, my only inquiry is whether they
are authorized by the Excom.

Cristin's conduct is governed under the provisions of Rule 5.3 of the
Pennsylvania Disciplinary Rules of Professional Conduct.

----
Rule 5.3 Responsibilities Regarding Nonlawyer Assistants

With respect to a nonlawyer employed or retained by or associated with a
lawyer:

(a) a partner and a lawyer who individually or together with other lawyers
possesses comparable managerial authority in a law firm shall make
reasonable efforts to ensure that the firm has in effect measures giving
reasonable assurance that the person's conduct is compatible with the
professional obligations of the lawyer.

(b) a lawyer having direct supervisory authority over the nonlawyer should
make reasonable efforts to ensure that the person's conduct is compatible
with the professional obligations of the lawyer; and

(c) a lawyer shall be responsible for conduct of such a person that would be
a violation of the Rules of Professional Conduct if engaged in by a lawyer
if:

(1) the lawyer orders or, with the knowledge of the specific conduct,
ratifies the conduct involved; or

(2) the lawyer is a partner in the law firm in which the person is employed,
or has direct supervisory authority over the person, and in either case
knows of the conduct at a time when its consequences can be avoided or
mitigated but fails to take reasonable remedial action.
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With respect to the confidentiality of information:

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Rule 1.6 Confidentiality of Information

(a) A lawyer shall not reveal information relating to representation of a
client unless the client gives informed consent , except for disclosures
that are impliedly authorized in order to carry out the representation, and
except as stated in paragraphs (b) and (c).

(b) A lawyer shall reveal such information if necessary to comply with the
duties stated in Rule 3.3.

(c) A lawyer may reveal such information to the extent that the lawyer
reasonably believes necessary:

(1) to prevent reasonably certain death or substantial bodily harm;

(2) to prevent the client from committing a criminal act that the lawyer
believes is likely to result in substantial injury to the financial
interests or property of another;

(3) to prevent, mitigate or rectify the consequences of a client's criminal
or fraudulent act in the commission of which the lawyer's services are being
or had been used; or

(4) to establish a claim or defense on behalf of the lawyer in a controversy
between the lawyer and the client, to establish a defense to a criminal
charge or civil claim or disciplinary proceeding against the lawyer based
upon conduct in which the client was involved, or to respond to allegations
in any proceeding concerning the lawyer's representation of the client; or

(5) to secure legal advice about the lawyer's compliance with these Rules;
or

(6) to effectuate the sale of a law practice consistent with Rule 1.17.

(d) The duty not to reveal information relating to representation of a
client continues after the client-lawyer relationship has terminated.
-------

To put it another way, there are zero binding legal obligations on an
officer of the RC concerning the handling of transaction information
relating to the account.  There are concrete legal obligations governing the
disclosure of transaction information by either Cristin Donahue or myself.

So the point here reduces to "we want to make sure the information is only
available to people with no legal duty to keep it confidential".

The rational approach which I have brought up several times, upon finding
out that the treasury had been casually bounced around for years, is that
the RC should consider setting up a non-profit corporation with by-laws that
mirror those of the RC, and the treasury moved to an interest-bearing
account under the direct ownership of the RC itself.

The other choices are: 

(1) to have the treasury moved to another non-profit (e.g. ICANN) which adds
a layer of administrative nuisance and delay, and which provides LESS
protection for confidentiality, or

(2) to return to having it kept in a personal account of the treasurer, and
they can do their own year-end tap dance with the tax authorities (I gather
previous treasurers simply treated the treasury as if it did not exist, for
tax purposes)

The historic problems of joining the RC have been "Who do I pay?" and "How
long before I get on the lists and can vote?"   We currently have a stable
payment system which can respond rapidly, and the membership has grown as a
result of it. 

I would suggest that changes in the direction of "fixing a known bug" are
preferable.