Vail Law: How to understand ‘special masters’ in lawyer speak (column)
May 1, 2018
What's this I hear about "special masters"?
If you've been paying close attention to the Michael Cohen drama unfolding in New York (and, apparently, exploding at the White House), then your ears might have perked up at the term. To re-perk them just a bit:
Recently, Judge Kimba Wood, a U.S. Federal District Judge presiding in the Southern District of New York, a Ronald Regan appointee, ordered the appointment of a special master in the Cohen matter. What, pray tell, is the Cohen matter? Well it goes like this:
Michael Cohen, President Donald Trump's long-time confidant and long-time "sometimes" lawyer, recently had the Feds in his stuff. To be more specific, the FBI raided Cohen's office, home and hotel room to gather potential evidence stemming from porn star Stormy Daniels' suit against the president. Deep breath here.
To catch you up, Daniels, who claims she once had an affair with Trump and then was paid for her silence days before the 2016 presidential election by Cohen, is suing Trump to be released from a non-disclosure agreement she entered into with Trump claiming the agreement is invalid. Along the way, Cohen claimed to have paid Daniels out of his own funds, which raised all kinds of legal hackles, among them if the payment amounted to an illegal campaign contribution.
In any event, the Feds started looking into the goings-on of Cohen and began to suspect he might have some — let's say, interesting — evidence at his fingertips. They apparently thought, too, that if they did not seize it immediately, the juicy evidence might finds its way into a nearby shredder, fireplace or toilet. And so they got a warrant which, by the way, was approved by Trump's Deputy Attorney General, and grabbed the goodies before they … um … disappeared.
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Charges, as they say, may be pending against our Cohen.
So what, then, of a special master?
Glad you asked.
As noted, above, Wood who, besides being a distinguished jurist, was once a Playboy bunny and was nearly appointed as Bill Clinton's Attorney General, assigned a special master to sift oh-so-carefully through the documents procured from Cohen. Specifically, as Trump's and Cohen's attorneys joined one another in a chorus of "attorney-client privilege" (which we covered in last week's column), Wood decided that someone other than those with a dog in this particular fight should look through what is surely a great volume of documents to determine what is or may be privileged.
Before Wood appointed the special master, she made a splash in the pond that has become the Cohen spectacle when she ordered the president's personal attorney (no, someone other than the center of attention, Cohen) to reveal the name of Cohen's mysterious "third client" who turned out to be none other than Fox News' own Sean Hannity.
That aside now, and now that a special master has been appointed, it seems appropriate to ask and answer just what a special master is and what a special master does.
Welcome to Mr. Robbins' neighborhood.
Now, the Special Master
A special master is appointed by a court to carry out some sort of action on its behalf. Simple as that. Theoretically — and now we're getting into nits to pick — a special master is different than a "master." This is why lawyers spend so much time in law school.
A master's function is essentially investigative. A master does things like compile evidence to assist the court in taking some future action. A special master, on the other hand, carries out some direct action on the part of the court. That's what makes one special.
Rather than investigating a particular matter as a master does, what a special master does is perform some discrete, particular — special — function on the court's behalf. As such, activities carried out by special masters are as diverse as the actions taken by the courts themselves. Special masters ain't necessarily as exotic as they may seem. A special master can be as mundane as being appointed a facilitator in a child custody case. Yawn. But the term was used, too, to describe the person appointed by Congress to administer compensation for the victims of the 9/11 terrorist attacks.
This particular special master — Barbara Jones — will be charged with pouring through about a zillion documents to screen the documents for privilege. As such, Jones may help determine the next direction this presidency may zig or zag, but she will do so out of the spotlight, performing what is sure to be a mind-numbing task.
Special? Maybe not so much. But essential sometimes — and certainly in times like these — to the impartial administration of justice. And that's why the lady with the scales is blind.
Rohn K. Robbins is an attorney licensed before the bars of Colorado and California who practices in the Vail Valley with the law firm of Stevens, Littman, Biddison, Tharp & Weinberg LLC. His practice areas include business and commercial transactions, real estate and development, family law, custody and divorce and civil litigation. Robbins may be reached at 970-926-4461 or at his email address, email@example.com.