APPOINTING MASTERS AND OTHER JUDICIAL ADJUNCTS A Benchbook for Judges and Lawyers 2020 Edition APPOINTING MASTERS AND OTHER JUDICIAL ADJUNCTS A Benchbook for Judges and Lawyers Table of Contents Acknowledgements Introduction Section 1: Types of Appointments 1.1 Settlement Master 1.2 Discovery Master 1.3 Privilege Review Master 1.4 Electronic Discovery Master 1.5 Coordinating Master 1.6 Trial Master 1.7 Expert Advisor 1.8 Technology Master 1.9 Monitor 1.10 Class Action Master 1.11 Claims Administrator 1.12 Auditor/Accountant 1.13 Receiver 1.14 Criminal Case Master 1.15 Conference Judicial Adjunct 1.16 Ethics Master 1.17 Supreme Court Master 1.18 Appellate Master 1.19 Specialized Masters Section 2. Appointment Orders 2.1 Order of Appointment 2.2 Checklist of Provisions 2.3 Contents of Order 2.4 Sample Form Master Model 2.5 Affidavit of Masters Section 3. Ethical Issues and Practical Concerns 3.1 Sources of Ethical Rules for Judicial Adjuncts 3.2 Basic Ethical Rules for Judicial Adjuncts Rule 1: Dignity and Integrity of the Court Rule 2: Competence and Diligence Rule 3: Propriety Rule 4: Neutrality/Absence of Conflict or Appearance of Conflict Rule 5: Disqualification Rule 6: Confidentiality Rule 7: Compensation/Time-keeping/Gifts and Favors 3.3 Checklist: Ethical Rules to Consider for Specific Circumstances Section 4. Managing the Unmanageable: Special Masters—A Special Solution An Article on the ABA Guidelines and Report for the Appointment and Use of Special Masters in Federal and State Civil Litigation Section 5. Table of State Court Provisions Governing Judicial Adjuncts Section 6. Articles, Books, Websites, and Literature About Masters Appendices Appendix 1 Sample Master Appointment Orders Appendix 2 ABA Guidelines/Report for Special Masters in Civil Litigation Appendix 3 Fed. R. Civ. P. 53 Appendix 4 28 U.S.C. § 455 Disqualification of Judge Appendix 5 Model Rule of Professional Conduct Rule 1.12 Appendix 6 Code of Conduct for United States Judges Appendix 7 Code of Conduct for Judicial Employees Appendix 8 The Code of Ethics for Arbitrators in Commercial Disputes Appendix 9 Forum Code of Conduct for Arbitrators Appendix 10 JAMS Arbitrators Ethics Guidelines © 2006-2020 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. Contact [email protected] or [email protected] (952.906.9700) 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, Cary Ichter, David Tenner, David Cohen, and Howard Marsee. Additional ACAM 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 Mitchell Hamline College of Law and the Mitchell Hamline Journal of Law and Practice also contributed to this edition, including Neal Axton, Mary Ann Archer, Cal Bonde, Andrew Haugen, Nathan Swanson, Ann Gennell, and Jessica Martin. 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 Forum. That conference led to the creation of ACAM and subsequently to the development of this book. 1 Academy of Court---Appointed Masters Introduction This book provides invaluable information to judges and lawyers regarding the best use of masters. Our civil justice system needs the services that judicial adjuncts can provide courts, parties, and the public. This benchbook explains how masters can be used to fulfill our mission to provide a just, speedy, and inexpensive determination for all disputes. This reference book is designed to help federal and state court judges and lawyers: (1) decide whether and when to appoint a master; (2) draft effective appointment orders; and (3) anticipate and effectively address ethical issues and practical concerns that arise in master work. These materials may also be helpful to prospective judicial adjuncts and to parties considering whether to request the appointment of an adjunct. Sections of this book comprise an invaluable resource regarding master practice. These sections include a summary of Federal Rule 53 and the rules or statutes authorizing masters and judicial adjuncts in every state. Another section includes a description of legal articles and literature on masters. These unique resources are timely updated and provide a comprehensive research source. All courts have the power to appoint a master or other type of judicial adjunct to assist with civil and criminal cases. Rule 53 of the Federal Rules of Civil Procedure governs the appointment of masters in federal court. In state courts, various procedural rules or state statutes empower judges to obtain assistance. State court judicial officers may be designated as special masters, masters, referees, commissioners, magistrates, or another name for a judicial adjunct. Many federal and state court judges use masters, and more will do so in the future. Because of their substantial caseloads, many judges and magistrate judges do not have sufficient time for the tasks inherent in the administration of complex, multi-party, and class action cases. Judges need to conserve and preserve their time to rule on pretrial matters and to try cases. And, with demanding dockets and diminishing court budgets, judges are looking for places to turn for help. Judicial adjuncts can provide courts, parties, and lawyers with essential services without tapping into court resources. Masters can act as mediators and settle civil and criminal cases away from the courthouse; they can monitor discovery and resolve time-consuming disputes; they can help with the growing burden on courts caused by electronically stored information (ESI) discovery problems; they can be assigned trial duties; they can testify as expert witnesses, especially in cases involving technical and specialized issues; they can help coordinate multi-party, multi- jurisdictional, and multi-district litigation (MDL) cases; they can administer settlement claims; and they can monitor compliance with a court order or settlement agreement; they can serve in criminal cases. 2 An adjunct can markedly reduce the burden on a judge, the judge’s staff, and the court’s administrative staff. Parties and lawyers recognize that the appointment of a master can save them substantial fees and costs, and can lead to a much quicker resolution of their disputes. Judges who use professional and experienced masters know how valuable they can be to case handling and resolution. Section 1 of this book summarizes the various roles judicial adjuncts can serve. Section 2 covers appointment orders. It explains the rules that govern appointment orders and provides a detailed checklist of items to include in an appointment order and includes a checklist. Section 3 covers ethical issues and practical concerns. It explains the sources of authority for ethics rules that govern judicial adjuncts, gives an overview of the rules, and provides a checklist for judges to review with their adjuncts early in the appointment. The checklists provided in Sections 2 and 3 focuses on key issues in the appointment process. Although the checklists are tailored to federal rules, they are also relevant in state courts because of the substantial similarity between state and federal rules, and because the same practical issues will arise in all jurisdictions. Section 4 includes an article about the newly established ABA Guidelines for the Appointment and Use of Special Masters in Federal and State Litigation. The Guidelines and the Report appear in Appendix 2. Section 5 details provisions of Federal Rule 53 and the respective rules and statutes empowering masters and judicial adjuncts for every state. These provisions permit comparative reviews among various procedural and substantive master regulations. Section 6 contains citations and concise descriptions of articles, books, websites, and literature about the use of masters. Finally, several appendices provide sample appointment orders, Federal Rule 53 with Comments, and codes of professional conduct The goal of the Academy of Court-Appointed Masters (ACAM) is to assist the courts in providing all parties with a fair, affordable, and speedy resolution of litigation. ACAM members are available to serve as masters and as other types of judicial adjuncts. ACAM’s website provides information about the Academy and links to contact information and credentials for our members: http://www.courtappointedmasters.org. ACAM is very pleased to provide judges and lawyers with this book. We hope that you find it to be a practical, easy-to-use reference.