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DAVID R. COHEN Cleveland, Ohio 44122 a T T O R N E Y a T L a W Telephone: 216.831.0001 Facsimile: 866.357.3535 [email protected]

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DAVID R. COHEN Cleveland, Ohio 44122 a T T O R N E Y a T L a W Telephone: 216.831.0001 Facsimile: 866.357.3535 David@Specialmaster.Biz 23220 Chagrin Boulevard Two Commerce Park, Suite 360 DAVID R. COHEN Cleveland, Ohio 44122 A t t o r n e y a t L a w Telephone: 216.831.0001 Facsimile: 866.357.3535 [email protected] Dear Colleague: Please find attached a copy of the second edition of APPOINTING SPECIAL MASTERS AND OTHER JUDICIAL ADJUNCTS: A HANDBOOK FOR JUDGES, published by the Academy of Court-Appointed Masters. This PDF file is designed for double-sided printing and three-hole punching, if you care to make hard copies for easy reference. As a charter member of ACAM and also Co-Chair of the Publications Committee, I helped to write and edit this BENCH BOOK. I hope you find it useful. Please feel free to forward this copy to others. If you have any questions or suggestions regarding the BENCH BOOK, please let me know. The ACAM Publications Committee welcomes any comments. Sincerely, David R. Cohen [email protected] APPOINTING SPECIAL MASTERS AND OTHER JUDICIAL ADJUNCTS A Handbook for Judges and Lawyers Table of Contents Acknowledgements ................................................................................................................. 1 Introduction ............................................................................................................................ 2 Section 1. Types of Appointments .......................................................................................... 4 1.1 Settlement Master ............................................................................................................ 4 1.2 Discovery Master .............................................................................................................. 4 1.3 Electronic Discovery Master ............................................................................................. 4 1.4 Coordinating Master ......................................................................................................... 5 1.5 Trial Master ...................................................................................................................... 5 1.6 Expert Advisor .................................................................................................................. 5 1.7 Technology Master ........................................................................................................... 5 1.8 Monitor ............................................................................................................................. 5 1.9 Class Action Master .......................................................................................................... 6 1.10 Claims Administrator ........................................................................................................ 6 1.11 Auditor/Accountant .......................................................................................................... 6 1.12 Receiver ............................................................................................................................ 6 1.13 Criminal Case Master ........................................................................................................ 6 1.14 Conference Judge ............................................................................................................. 7 1.15 Ethics Master .................................................................................................................... 7 1.16 Appellate Master .............................................................................................................. 7 Section 2. Appointment Orders .............................................................................................. 8 2.1 Items to Include in Appointment Orders ......................................................................... 8 Section 3. Ethical Issues and Practical Concerns ................................................................... 21 3.1 Sources of Ethical Rules for Judicial Adjuncts ................................................................ 21 3.2 Basic Ethical Rules for Judicial Adjuncts ......................................................................... 24 Rule 1: Dignity and Integrity of the Court ...................................................................... 25 Rule 2: Competence and Diligence ................................................................................. 25 Rule 3: Propriety ............................................................................................................. 25 Rule 4: Neutrality/Absence of Conflict or Appearance of Conflict ................................ 26 Rule 5: Disqualification ................................................................................................... 26 Rule 6: Confidentiality .................................................................................................... 27 Rule 7: Compensation/Time‐keeping/Gifts and Favors ................................................. 27 3.3 Checklist: Ethical Rules to Consider for Specific Circumstances .................................... 28 i Appointing Special Masters and Other Judicial Adjuncts Appendices ................................... 33 Appendix 1 Checklist of Items to Include in Appointment Orders ....................................... 34 Appendix 2 Checklist of Ethical Considerations and Practical Concerns .............................. 36 Appendix 3 Sample Appointment Orders ............................................................................. 37 Appendix 4 Fed. R. Civ. P. 53 ................................................................................................. 56 Appendix 5 28 U.S.C. § 455 Disqualification of Justice, Judge, or Magistrate Judge ............ 67 Appendix 6 Model Rule of Professional Conduct Rule 1.12 ................................................. 69 Appendix 7 Code of Conduct for United States Judges ........................................................ 70 Appendix 8 Code of Conduct for Judicial Employees ............................................................ 86 Appendix 9 The Code of Ethics for Arbitrators in Commercial Disputes .............................. 94 Appendix 10 National Arbitration Forum Code of Conduct for Arbitrators ....................... 106 Appendix 11 JAMS Arbitrators Ethics Guidelines ............................................................... 109 Appendix 12 Links to JAMS’ Comprehensive Arbitration Rules & Procedures and to the National Arbitration Forum’s Code of Procedure ................................... 116 Appendix 13 Table of State Court Authorities Governing Judicial Adjuncts and Comparison Between State Rules and Fed. R. Civ. P. 53 ........................ 117 Appendix 14 Selected Cases ............................................................................................... 122 Appendix 15 Relevant Academic Literature ........................................................................ 133 © 2006, 2009 by the Academy of Court-Appointed Masters. ISBN 0-9786438-0-1 Permission to reprint is granted to all attorneys, judges, and court personnel for professional use and to all accredited education institutions for education purposes. All other persons and entities may reprint only with written permission. ii Acknowledgements Many professionals contributed to the development of this book. The most important contributors are the federal and state court judges and magistrates who pioneered the use of masters and who presently appoint them to serve in many cases. The authors of this book are aware of the following judges and magistrates who have been leaders in the use of masters: The Honorable Michael J. Davis, The Honorable Paul L. Friedman, The Honorable Ronald Hedges, The Honorable Lamar Pickard, The Honorable Sam C. Pointer, Jr. (retired), The Honorable Manuel Real, The Honorable Lee Rosenthal, The Honorable Barbara Jacobs Rothstein, The Honorable Shira Scheindlin, and The Honorable Jack B. Weinstein. Other important contributors include Sol Schreiber, Frances McGovern, and Kenneth R. Feinberg, who have each served as special masters in many groundbreaking cases and who have given generously of their time to teach and write about special master work. This book was originally written by several members of the publications committee of the Academy of Court-Appointed Masters (ACAM). The authors and editors included: David Cohen, Roger Haydock, Martin Quinn, and Randi Ilyse Roth. Cynthia Gilbertson provided editing assistance, and Ann Pagel Newman provided copyediting and formatting assistance. Other members of the ACAM publications committee included: David Ferleger, Mike Frascogna, Rick Grauer, Greg Miller, Gale “Pete” Peterson, and Clarence Sundram. This second edition was revised and edited by members of the Publication Committee including Roger Haydock, David Cohen, and Howard Marsee. Additional ACAM special masters contributed to the development of this book including A.J. Nichols and members of the Board of Directors: Martin Quinn, Lewis Remele, Richard Levie, David Herr, Margaret Farrell, Francis McGovern, Patrick Juneau, John Upchurch, and Sherry Wetsch. Staff and students of the William Mitchell College of Law also contributed to this edition, including Neal Axton, Mary Ann Archer, Cal Bonde, Andrew Haugen, and Nathan Swanson. The first National Conference for Special Masters was held in October 2004 at the William Mitchell College of Law, with assistance from the Federal Judicial Center and the National Arbitration Forum. That conference
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