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Date: | Fri, 7 Apr 2023 19:29:20 +0200 |
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Hi Marika,
Here is the NCSG statement on the SOI TF report.
Julf
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The ICANN Statement of Interest (SOI) is integral to the transparency
and accountability of healthy policymaking processes. ICANN
policymaking processes are open to the public, encouraging participation
from all. To prevent capture by powerful individuals or groups, it is
crucial to be aware of whose interests are being represented.
Confidentiality in SOIs jeopardizes the integrity of the policymaking
process, making it more susceptible to capture. Attorney-client
privilege should not apply to public policy-making. If clients are not
willing to be disclosed when participating in policy processes, they
should not be represented.
As the response from the BC specifically mentions NCSG, we would like to
address the misunderstanding that BC seems to have about privacy and
transparency supposedly not being compatible. Privacy and transparency
are not adverse to each other, and the NCSG charter specifically
mentions transparency as one of the Principles for both Members and
Leaders. Public interest and noncommercial groups regularly advocate for
appropriate privacy AND appropriate transparency. The same people who
are most ardent advocates for privacy are also the leaders of Freedom of
Information legislation and initiatives around the world that protect
it. Public processes benefit from knowing who is representing who and
then balancing the interests of the many different participants in a
proceeding.
Conflating invasion of privacy with Statement of Interest in public
policy-making is disingenuous, if not dangerous. We need to know how our
policy making groups work; we need open and transparent policy-making
processes, and this is only possible when we know, with no shadow of a
doubt, which parties are sitting at the table influencing policy decisions.
Privacy and transparency are part of the very same process - they work
hand in hand to make sure that no single or few powerful entities make
decisions for all.
Finally, NCSG must respectfully contest the underlying proposition by
the BC that attorneys cannot disclose their clients in policymaking
proceedings. In very few circumstances is the “fact of the
representation” considered confidential; it’s the information the client
discloses, the substance of the representation, that is confidential.
We provide a few examples:
[1] See Cal. Formal Op. 2011-182 (2011). "In most situations, the
identity of a client is not considered confidential and in such
circumstances Attorney may disclose the fact of the representation to
Prospective Client without Witness Client's consent." Citing to Los
Angeles County Bar Association Professional Responsibility and Ethics
Committee Op. 456 (1989).
https://www.hklaw.com/en/insights/publications/2018/03/aba-clarifies-lawyers-confidentiality-obligations
[2] Supreme Court of Pennsylvania, The Rules of Professional Conduct.
3.9 Advocate in Nonadjudicative Proceedings
A lawyer representing a client before a legislative body or
administrative agency in a nonadjudicative proceeding shall disclose
that the appearance is in a representative capacity and shall conform to
the provisions of Rules 3.3(a) through (c), 3.4(a) through (c), and 3.5.
https://www.padisciplinaryboard.org/Storage/media/pdfs/20210920/140616-rpc2021-08-25amended.pdf
We look forward to a rapid completion of this important discussion and
to full and fair disclosure in the future!
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