Re: [council] Letter to L.Touton

[Mike Roberts <mmr@darwin.ptvy.ca.us>]

At 22:25 -0500 12/7/99, Michael Froomkin - U.Miami School of Law wrote:
>[cc's trimmed]
>
>Not only do I agree, I would like to say that in my experience as a lawyer
>online, this has been the only time -- yes, the *only* time -- I have ever
>seen a lawyer take part in a debate involving a client's interests and
>routinely fail to include a disclaimer in each of his statements when he
>is speaking "personally".  Mr. Sims is simply too good a lawyer to be
>doing this by accident or out of carelessness.  I have come to suspect,
>very reluctantly, that perhaps he does it on purpose, to achieve
>deniability when his statements go beyond what the Board will accept. This
>is not proper, and his clients should put a stop to it.
>
>Mr. Sims has a right to speak as an individual, but he has a professional
>duty to be clear in each utterance which hat he is wearing. More than
>that, he has a duty to his client to do so.
>
>And his client can certainly ask him to refrain from comment in some
>circumstances if his client chooses to do so.  This might be a good time
>to do that.  Or at the very least to be much, much clearer in each and
>every utterance which hat he is speaking through or under.
>

Michael,

You are entitled to your personal opinions, and we frequently value your
contributions to ICANN policy work.

In this particular case, both you and Kathy are way off base. In my working
experience with him during both the summer and fall of 1998 when he was
pro bono counsel to Jon Postel, and since November of last year in his
capacity as engaged outside counsel to ICANN, Joe's professional behavior
has been entirely within the expectations I have had as CEO of ICANN.

When the Board speaks officially, it does so through resolution or through
direction to me and the staff. I can recall no situation in which Joe
purported to speak for the Board or the corporation outside the bounds
of this standard working arrangement.  Contrary to the views expressed
in your note and in Kathy's, individual comments by Esther, other Board
members, myself or other members of the staff, or counsel, do not
represent the views of the Board unless specifically identified as such.
In fact, it would be inappropriate - and Esther and I have noted this
on a number of occasions - if anytime a Board or staff member or counsel
ventured a personal opinion on something, the community tried to read a
Board position into it.

In addition to the above, Joe has in the past and continues to provide
legal advice to the Names Council, which is part of the ICANN
organization structure, as part of his duties as outside counsel.

Regards,

- Mike