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DAVID R. COHEN Cleveland, Ohio 44122 Attorney at Law Telephone: 216.831.0001 Facsimile: 866.357.3535 [email protected]

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DAVID R. COHEN Cleveland, Ohio 44122 Attorney at Law Telephone: 216.831.0001 Facsimile: 866.357.3535 David@Specialmaster.Law 24400 Chagrin Boulevard Reflections Bldg., Suite 300 DAVID R. COHEN Cleveland, Ohio 44122 Attorney at Law Telephone: 216.831.0001 Facsimile: 866.357.3535 [email protected] Dear Colleague: Please find attached a copy of the most recent edition of APPOINTING SPECIAL MASTERS AND OTHER JUDICIAL ADJUNCTS: A BENCHBOOK FOR JUDGES AND LAWYERS, 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 and President Emeritus of ACAM and also Co-Chair of the Publications Committee, I helped to write and edit this BENCHBOOK. I hope you find it useful. Please feel free to forward this copy to others. If you have any questions or suggestions regarding the BENCHBOOK, please let me know. Sincerely, David R. Cohen [email protected] 2 APPOINTING SPECIAL MASTERS AND OTHER JUDICIAL ADJUNCTS A Benchbook for Judges and Lawyers JANUARY 2013 Edition APPOINTING SPECIAL MASTERS AND OTHER JUDICIAL ADJUNCTS A Benchbook 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 Section 4. Table of State Court Authorities Governing Judicial Adjuncts and Comparison Between State Rules and Fed. R. Civ. P. 53............................................................................ 33 Section 5. Selected Cases – Federal Cases............................................................................ 38 Selected Cases – State Cases..................................................................................................66 Some of the cases that appear in this Appendix were obtained from the Special Master Case Reporter published by David Cohen www.SpecialMaster.biz .........66 Academy of Court-Appointed Masters.................................................................................. 96 Appointing Special Masters and Other Judicial Adjuncts A Handbook for Judges and Lawyers January 2013 ........................................................................................................ 96 Appendix 1 Checklist of Items to Include in Appointment Orders .......................................97 Appendix 2 Checklist of Ethical Considerations and Practical Concerns ..............................99 Appendix 3 Sample Appointment Orders...........................................................................100 Appendix 4 Fed. R. Civ. P. 53 ..............................................................................................119 Appendix 5 28 U.S.C. § 455 Disqualification of Justice, Judge, or Magistrate Judge ..........130 Appendix 6 Model Rule of Professional Conduct Rule 1.12 ...............................................132 Appendix 7 Code of Conduct for United States Judges ......................................................133 Appendix 8 Code of Conduct for Judicial Employees..........................................................149 Appendix 9 The Code of Ethics for Arbitrators in Commercial Disputes ............................157 Appendix 10 National Arbitration Forum Code of Conduct for Arbitrators........................169 Appendix 11 JAMS Arbitrators Ethics Guidelines ...............................................................172 Appendix 12 Links to JAMS’ Comprehensive Arbitration Rules & Procedures and to the National Arbitration Forum’s Code of Procedure...................................179 Appendix 13 Relevant Academic Literature .......................................................................180 © 2006-2013 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 ii and to all accredited education institutions for education purposes. All other persons and entities may reprint only with written permission. Contact [email protected] iii Acknowledgements Many professionals contributed to the development of this book. We first acknowledge 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 following judges and magistrates have been leaders in the use of masters: Michael J. Davis, Paul L. Friedman, Ronald Hedges, Lamar Pickard, Sam C. Pointer, Jr., Manuel Real, Lee Rosenthal, Barbara Jacobs Rothstein, Shira Scheindlin, and 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: Roger Haydock, David Cohen, Martin Quinn, and Randi Ilyse Roth. Cynthia Gilbertson and Ann Pagel Newman provided editing assistance. Other members of the initial ACAM publications committee included: David Ferleger, Mike Frascogna, Rick Grauer, Greg Miller, Gale “Pete” Peterson, and Clarence Sundram. Subsequent editions were 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: Cathy Yanni, Martin Quinn, Lewis Remele, Richard Levie, David Herr, Margaret Farrell, Francis McGovern, Patrick Juneau, John Upchurch, and Sherry Wetsch. Staff and students of
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