2023-01-11 SOI Taskforce - Meeting #16

Notes/ Action Items

ACTION ITEMS:

1.  SOI: Staff to draft revised language and provide to the TF on the list for review re: 1) what rules are preventing them from disclosing and allowing this to be challenged; 2) more specific in the examples we provide.  Consider whether there are other examples that may apply, such as the IETF.
2. Recommendations Report: Susan Payne, IPC to provide some use case examples.  Other TF members are encourage to do so as well.  See the sample google doc at: https://docs.google.com/document/d/1-i7oTXv_7eRibJK8a8FQ8Df9CCClWuH_/edit.
3. Recommendations Report: Staff to revise the language referencing the pilot to indicate that testing may occur as part of implementation
4. Secretariat staff to schedule a meeting for 25 January at 1400 UTC.

Notes: 

1. Welcome

2. Consider possible changes to the following language currently contained in the proposed updates to the SOI: “If professional ethical obligations prevent you from disclosing this information, please provide details on which ethical obligations prevent you from disclosing and provide a high level description of the entity that you are representing without disclosing its name, for example ‘I represent a Registry client’ or ‘I am representing a non-GNSO related entity.” (see also public comments submitted:https://docs.google.com/document/d/13jhExwduE7qrRovZFDw5FwAjtUlSffwz/edit [docs.google.com])

Input from IPC, see also: https://docs.google.com/document/d/13jhExwduE7qrRovZFDw5FwAjtUlSffwz/edit?usp=sharing&ouid=103865008760080873867&rtpof=true&sd=true:

• Concerned that if the client specifically instructs the attorney not to disclose its representation then the attorney might be ethically prohibited from doing so and that there are also more general ethical prohibitions on disclosing representation of a client without the client’s consent.  See for example, from Rule 1.6 of the American Bar Association Model Rules of Professional Conduct – Confidentiality if Information, which is reflected in many state-specific rules of professional conduct: “A fundamental principle in the client-lawyer relationship is that, in the absence of the client's informed consent, the lawyer must not reveal information relating to the representation.”

• This is just the US, however, that there may be similar rules in other jurisdictions.  Accordingly, I think that the wording "If professional ethical obligations prevent you from disclosing this information, please provide details on which ethical obligations prevent you from disclosing and provide a high level description of the entity that you are representing without disclosing its name, for example, 'I represent a Registry client' or 'I am representing a non-GNSO related entity'" must be retained or it potentially excludes attorneys from ICANN participation. 
•  there is no definition of “representative”.  The question seems straightforward in its face and probably is for non-lawyers.  But for lawyers, maybe is not so clear.  Its one thing if a client is asking an attorney to advocate for something specifically in his or her ICANN participation.  But in the absence of that,  does the current language mean that attorneys completing SOIs would have to disclose every client they represent generally? Not only is that problematic from an ethical perspective but also from  a practical perspective.  An attorney may have dozens or hundreds of people they represent.  If an attorney at  a firm does some brief work for another attorney’s client, does that qualify as “representing” and now the attorney must include that person or company in his or her SOI?  That is completely unworkable. 
• Not a fair comparison to look at lobbying of organisations like the EU and USG.  Lawyers acting for clients are not lobbyists.  ICANN presents itself as not a govt and not a lobbying organisation
• ICANN itself is quick to point out that it must comply with the law.  Some attorneys (at least in US, but likely in other countries) have ethical rules which serve as a prohibition on disclosure.  If they disregard they could be disbarred, so it’s not something they can negotiate
• Forcing a lawyer to disclose or refuse to act unfairly discriminates against them
• The language regarding disclosure in the SOI is also vague and open to interpretation.  There is no definition of “representative”, and this may not be clearcut for a lawyer. How do they meet this and not run the risk of being accused of failure to disclose?  It’s one thing if a client is asking an attorney to advocate for something specifically in his or her ICANN participation, but this is not always the case.  E.g. are lawyers being asked to disclose everyone they work with (i.e. their client list?), because, for example, they are seeking to protect brand owner interests online generally?  What disclosure are they supposed to make if they have one or more clients whose interests they are seeking to safeguard, but who are not paying them to participate?

Discussion:

• Seems the suggestion from the IPC is to leave the language as is, but provide a definition of “representative”.
• Question: Is the ethical concern regarding the disclosure or because of conflicting/mutually exclusive requirements? Answer: It is the mutually exclusive requirements.  ICANN requires disclosure to participate but the Bar Association does not, thus possibly excluding lawyers from participating.
• Seems that the client could have the option to agree to disclosure.  The client agreeing would remove the ethical problem but they do not have to.  If the client said no then the representative couldn’t participate, thus discriminating against them.
• Don’t think the intent of this proposal is to create a barrier to participation.  The problem we are trying to address is those individuals who do not disclose whom they represent. Could produce a two-tiered system of participation – some who disclose and some who don’t.  Putting the decision to disclose on the client could be an appropriate way to resolve the conflict.
• Could narrow the language to make the disclosure more equitable.

Current proposed language: “If professional ethical obligations prevent you from disclosing this information, please provide details on which ethical obligations prevent you from disclosing and provide a high level description of the entity that you are representing without disclosing its name, for example ‘I represent a Registry client’ or ‘I am representing a non-GNSO related entity.’”

• Could make it more specific that people have to cite why they cannot comply.  Provide some context.  Could we also ask them to reference the professional rule/obligation that prevents disclosure?
• If the client doesn’t respond or says no, that puts the representative in the position of not being able to serve their client by participating.
• Could disclose in general, but not with specific details.
• Seems to be some agreement to see if the current language can be strengthened by adding 1) what rules are preventing them from disclosing and allowing this to be challenged; 2) be more specific in the examples we provide.
• Is it sufficient to say that they represent a non-GNSO client?  But how would we know?  Also, some attorneys are representing multiple clients and switching hats.
• Comes back to the definition of “representative”.

ACTION ITEM: SOI: Staff to draft revised language and provide to the TF on the list for review re: 1) what rules are preventing them from disclosing and allowing this to be challenged; 2) more specific in the examples we provide.  Consider whether there are other examples that may apply, such as the IETF.

3. Confirm whether the following language to be included in the GNSO Operating Procedures provides sufficient flexibility to make updates to the SOI as deemed necessary: “The detailed questions will be made publicly available and may be reviewed and revised by the GNSO Council from time to time using its relevant processes”. (see also public comments submitted: https://docs.google.com/document/d/13jhExwduE7qrRovZFDw5FwAjtUlSffwz/edit [docs.google.com])

Comment from Susan: “b)I think we risk overburdening Council here if they have to start considering the SOI requirements for every activity.  Perhaps we have a baseline set of questions but give the WG leadership a discretion to require additional information specific to work chartered to them.”

• Don’t think the intent is to overburden the Council, but to have baseline questions and those could be expanded if necessary depending on the situation.
• Don’t think we need to make further changes.  What is proposed doesn’t prevent the Council to put forward additional requirements.
• Staff notes that there is agreement to confirm the language to be included in the GNSO Operating Procedures.

4. Review updated version of Recommendations Report (see attached) and consider outstanding issues:

• Will need to update the disclosure language once the group comes to agreement.

a. SOI Samples

Current language: “A number of use cases have been developed [to be completed following the public comment forum] by the TF that will serve as example / instructions for those completing the templates to provide the appropriate level of detail / information.”

• No examples have been provided.  Should staff make some suggestions or is this still to be provided by the TF.

ACTION ITEM: Recommendations Report: Susan Payne, IPC to provide some use case examples.  Other TF members are encourage to do so as well.  See the sample google doc at: https://docs.google.com/document/d/1-i7oTXv_7eRibJK8a8FQ8Df9CCClWuH_/edit.

b. Pilot

• Had language about a pilot; instead we linked to a Google form for commenters to use to provide feedback, but there was limited participation.
• Is this a suggestion for implementation – for a group to test it?
• Revise this language to indicate that there may be a testing phase in implementation.

ACTION ITEM: Recommendations Report: Staff to revise the language referencing the pilot to indicate that testing may occur as part of implementation.

5. Confirm next steps

• See action items above.
• Schedule a meeting for 25 January.

ACTION ITEM: Secretariat staff to schedule a meeting for 25 January at 1400 UTC.