For ABA Consideration: Two Resolutions that Recast the Name, and the Roles, for Special Masters
It is a rare occurrence for a part of the legal profession to undergo a name change, but that is precisely what is happening at this very moment with special masters.
While arbitrators and mediators will continue to be known by their respective titles, there is an expectation and hope that special masters will be referred to as court-appointed neutrals moving forward. The move could have major effects on how those neutrals are deployed.
This objective is at the forefront of one of a set of related resolutions set to be deliberated by the American Bar Association House of Delegates during the ABA’s 2023 Annual Meeting taking place in August in Denver.
The first resolution proposes a revision in the terminology employed to identify special masters. It aims to more accurately portray the nature and essence of this profession.
A second resolution not only continues ABA advocacy for amending Federal Rule of Bankruptcy Procedure 9031, as previously suggested, but also urges for the modification of other pertinent provisions. These adjustments would enable courts overseeing cases under the U.S. Bankruptcy Code to employ special masters in a manner similar to their use in federal or state civil litigation.
A third resolution calls for the adoption of measures that, like Federal Rule of Civil Procedure 53, would allow states to appoint special masters or, better, court-appointed neutrals going forward.
Special masters–the current term of art–serve as judicial adjuncts whose role is determined based on the court’s consultation with the parties involved. This designation is deliberately broad and flexible, as explained by Merril Hirsh, a member of the ABA’s Lawyers Conference for the Judicial Division and co-chair of the Special Masters Committee of the Lawyers Conference. Hirsh, a Washington, D.C., attorney-neutral, is executive director of the Tallahassee, Fla.-based Academy of Court-Appointed Neutrals, a nonprofit that trains and develops standards for court-appointed neutrals.
Hirsh discussed the state-of-the-art on court-appointed neutrals on two podcasts available for ABA members, here and here. See also, "Recruiting and Diversifying: Group Opens to Aspiring Special Masters," 40 Alternatives 11 (January 2022) (available here).
Special masters have become particularly valuable in complex litigation, and the current trend is to consider their use from the outset of a legal case, rather than solely after specific issues have arisen. The functions entrusted to special masters can vary greatly, ranging from overseeing and managing the discovery process to conducting or reviewing auditing, accounting, receivership, and even real property inspections. The ultimate objective is to support the court and reduce costs for the litigants, thus facilitating a more efficient and cost-effective resolution.
The ABA first resolution to be voted on in August seeks to amend the 2019 ABA Guidelines for the Appointment and Use of Special Masters in Federal and State Civil Litigation. The proposed amendment involves replacing the term “Special Masters” with “Court-Appointed Neutrals.” The guidelines were approved as the first-ever ABA resolution specifically addressing special masters and aimed to establish more systematic and consistent approaches for appointing and using these professionals, offering best practices for implementation.
The ABA’s intention with this new resolution is to maintain the guidelines’ substance while modifying the terminology used to refer to special masters. This intention is not isolated, but rather part of a broader trend.
In 2022, the Academy of Court-Appointed Masters changed its name to the Academy of Court-Appointed Neutrals, and the ABA Judicial Division Lawyers Conference Special Masters Committee transformed into the ABA Judicial Division Lawyers Conference Court-Appointed Neutrals Committee. These name changes were motivated by a shared goal of better serving and defining the profession.
The draft resolution outlines the reasons that motivated this new resolution. The term "master" no longer appears suitable to describe this multifaceted profession–and may evoke negative associations. As highlighted by the Philadelphia Bar Association, it can create “a sense of separation, anxiety, and confusion,” as it suggests a hierarchical relationship where some individuals are subjected to others. Indeed, following this rationale, the resolution indicates that Pennsylvania and Maryland have already changed court rules to substitute the term "master."
Some of the negative connotations associated with the term “master” are spelled out in the resolution that emphasizes how this has brought universities like Harvard and Yale to stop using the term as an academic title, or the name of the head of a residential college, given that they outweigh the term’s positive associations referring to, for example, expertise, proficiency, and leadership.
Furthermore, the term “master” implies that these professionals are primarily decision-makers. In reality, they fulfill a range of functions that can be quasi-adjudicative, investigative, informational, and more. “Where the term ‘master’ suggests someone brought in to adjudicate,” notes the resolutions' accompanying introductory text, “these many types of court-appointed neutrals are more like a Swiss Army Knife: a multipurpose tool that could be used for quasi-adjudicative work, but could also be used for facilitative, investigative, intermediary, informatory, administrative, monitoring, implementing or many other purposes.
Thus, a more inclusive and flexible name is needed to accurately reflect the diverse characteristics of the profession.
In 2019, the proposal that included the guidelines’ approval had a secondary component advocating for the amendment of Federal Rule of Bankruptcy Procedure 9031. That rule states that Federal Rule of Civil Procedure 53, allowing for the appointment of special masters in civil cases, does not apply to Bankruptcy Code cases. The proposed amendment aims to allow courts overseeing cases under the Bankruptcy Code to employ special masters in a manner consistent with their use in other federal cases.
The proposed ABA resolution emphasizes the pathway to achieving the objective of increasing the use of special masters in Bankruptcy Code proceedings. It highlights the necessity of amending not only Rule 9031, but also other relevant provisions, rules, and laws associated with the Bankruptcy Code. For instance, one crucial aspect highlighted is the need to advocate for the adoption of a new Bankruptcy Rule 7053, which would incorporate Federal Rule of Civil Procedure 53 by reference.
Another related ABA resolution advocates for the adoption of a model rule governing the appointment of court-appointed neutrals in the states. Starting from the acknowledgment of the divergent approaches employed by different states in dealing with special masters, the drafting committee recognized the crucial need for a comprehensive and standardized rule that can serve as a benchmark for future development. Consequently, a model rule would aim to translate the 2019 guidelines into provisions that states, and potentially the federal rules, can adopt either as they are or as a foundation for amending existing regulations.
The model rule would provide a panoramic framework for the use of special masters, offering a definition of the profession, and outlining the factors to be considered when contemplating the appointment of a special master. It also would delineate the nomination process, and enumerates the powers conferred upon a special master, clarifying the associated responsibilities of the role.
Comments and opinions on the two resolutions are can be addressed to Merril Hirsh at merril@merrilhirsh.com; the ABA is scheduled to consider the resolutions at the Annual Meeting on Aug. 7-8.
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The author, who graduated this month with an LLM from Yeshiva University’s Benjamin N. Cardozo School of Law in New York, is a 2023 CPR Institute intern.