Lawyer ban coming to ICANN
Tell us who you’re working for, or get out.
That’s the message, mainly targeting lawyers in private practice, underpinning a proposed change to the rules governing participating in ICANN policy-making proceedings.
The Org has published a new “discussion draft” of a Community Participant Code of Conduct Concerning Statements of Interest, which proposes closing a loophole that currently allows lawyers to keep their clients’ identities secret.
Today, everyone who participates in policy-making has to file a Statement of Interest, disclosing among other things their employers and/or clients, so their fellow volunteers know who they’re dealing with.
But there’s an exemption where “professional ethical obligations prevent you from disclosing this information”.
The new proposals would remove this exemption. The text (pdf) reads:
withholding relevant information about the interests involved in the deliberations could impair the legitimacy of ICANN’s processes. When disclosure cannot be made, the participant must not participate in ICANN processes on that issue.
This rule would also apply, for example, to participants from companies that are secretly working on technology patents relevant to the area of policy work, ICANN said.
Imagine an employee of a Big Domains firm pushing hard for a change to Whois policy while their employer is covertly intending to patent elements of the technology that would be needed to implement that policy.
The other example I’ve been given is of a lawyer in private practice who’s representing a company that intends to apply to ICANN for a new gTLD in the Next Round, where disclosing the desired string might be unwise.
If Pepsi is planning to apply for .pepsi, thinking it will give it a competitive advantage over Coca-Cola, having its outside counsel essentially announce that fact to the world could tip off its rival to start working on its .coke application.
In both those situations, the proposed new SOI policy would ask the would-be volunteer to either disclose or recuse. If discovered to have lied about their interests, they could be banned from all future ICANN policy-making work.
The proposals also target those working for trade groups who keep their member lists private. The document states:
If participants are participating on behalf of a trade association, consortium, or similar organization, those participants are urged to identify where other participants within ICANN can locate pertinent information about the membership or funding of that organization.
The proposals appear to have originated with ICANN Org after community efforts to reach consensus on SOIs failed.
A GNSO working group called CCOICI, for Council Committee for Overseeing and Implementing Continuous Improvement, after internal disagreements last year recommended keeping the lawyer loophole.
But when it came to a GNSO Council vote almost exactly a year ago, the Contracted Parties House (registries and registrars) unanimously rejected the CCOICI recommendations, precisely because of the loophole.
The Non-Contracted Parties House gave the changes their unanimous approval.
CPH members’ interests are of course generally known by virtue of the fact that they’re CPH members, representing their employers.
As I reported back in March, the CPH continues to think the SOI rules need strengthening, and that position is shared by members of the influential Governmental Advisory Committee.
The proposals are open for public comment until December 2.
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It’s long past time for this requirement.
Objections which have been raised by various lawyers are, frankly, ridiculous. Somehow, this sort disclosure of represented interests does not seem to hamper many of the same lawyers and firms when it is required for government lobbying work, and there is no good reason why the same rules should not apply to advocacy before ICANN.
I agree 100% with John.
How lawyers can tell the ICANN community with a straight face that revealing client names would breach attorney/client privilege (which is does not) when doing ICANN work but fully disclosing all client names when lobbying before the US and the EU is beyond comprehension.
Part of the problem is that there are a fair number of lawyers who believe that everyone else is stupid.
In point of fact, there are codes of ethics in some jurisdictions which affirmatively REQUIRE lawyers to comply with client disclosure rules and EXEMPT such compliance from confidentiality rules. For example, in Pennsylvania:
Rule 1.19 Lawyers Acting as Lobbyists
(a) A lawyer acting as lobbyist, as defined in any statute, resolution passed or adopted by either
house of the Legislature, regulation promulgated by the Executive Branch or any agency of the Commonwealth
of Pennsylvania, or ordinance enacted by a local government unit, shall comply with all regulation, disclosure,
or other requirements of such statute, resolution, regulation or ordinance which are consistent with the Rules
of Professional Conduct.
(b) Any disclosure of information relating to representation of a client made by the lawyer-lobbyist
in order to comply with such statute, resolution, regulation or ordinance is a disclosure explicitly authorized to
carry out the representation and does not violate Rule 1.6.
———
It would be interesting to check the corresponding rule in the various jurisdictions of lawyers who are dishonestly claiming otherwise.