Trial by Master: Adventures in Exparteland

• Jurisdiction: Hawaii,United States
• Citation: Vol. 18 No. 02
• Publication year: 2014

Trial by Master: Adventures in Exparteland

by ARTHUR B. REINWALD

For decades, Masters appointed by the judge of the Probate Court freely conducted their investigate and report assignments, finding facts, citing legal precedents and often making recommendations to the Probate Judge, without sensing any constraint to avoid ex parte communications. Surreptitious feeding of arguments, factual and legal, by counsel for one side or the other, or both, to the Master has been all too common. The injustice of the judge making findings based on a Master's ex parte communications is illustrated by the following hypothetical example.

The three trustees of the Gladys Brown Trust consult John Lawyer. They bring in a copy of a complaint charging them with failure to account, investment mismanagement, and other misdeeds. The complainant, Adeline Brown, asks for an accounting and removal of the trustees. John Lawyer files an objection and response. He petitions the court to treat this as a contested case and asks that the case be referred to the civil trial calendar. John wants discovery and he wants an evidentiary hearing.

The Probate Judge does not rule on the trustees' petition to refer, but appoints a Master to find the facts and advise the court on the applicable law.

Continuing the long standing practice in the Probate Court, the Master speaks with John Lawyer and Adeline Brown's attorney, separately. Neither attorney knows what the other told the Master. The Master also interviews Ms. Brown and the trustees, separately, without revealing to one side what the other side presented. Ms. Brown's attorney delivers a memorandum to the Master without showing a copy to John Lawyer. Ms. Brown's attorney engages in several secretive telephone conversations with the Master. When John Lawyer finds out or figures out what transpired, he files a petition with the Probate Judge objecting to the ex parte discussions between the Master and Ms. Brown's lawyer, and he again asks that the case be referred to the civil trial calendar. The Probate Judge does not rule on the petition and objection. The Master files his report. Ms. Brown's attorney files a response agreeing with the Master's report. John Lawyer files objections to the Master's report.

There is no evidentiary hearing. The court enters findings based on the findings in the Master's report. The court, stating that there is no reason to not accept the Master's report, grants the petition and orders that the trustees be removed.

This scenario occurred time and again in the Probate Court in the last decade. The Probate Judge ignored the Code of Judicial Conduct and the basic fundamentals of fair hearing. John Lawyer's calls for discovery and cross-examination went unheeded.

The net result was the Probate Court's determination of a contested case based on the Master's ex parte communications. Although the rules forbid the court from engaging in ex parte communications, the court saw no problem in deciding the case based on the Master's findings, which were based on ex parte communications.

Many attorneys appointed to serve as Masters ask, "What is wrong with that?" Surprisingly, lawyers practicing in the Probate Court have not appealed the immolation of their clients' fundamental rights. John Lawyer, understanding the basic requirements of fair jurisprudence, should file an appeal with the Hawaii Supreme Court. The Supreme Court has clear guidelines.

Probate Rules regarding Masters.

Hawaii Probate Rules 27 to 29 define the role of the Master in the Probate Court. Rule 27 requires that "all charitable trust accountings be referred to a Master appointed by the court," and "[I]n the event of a dispute among beneficiaries of a private trust or estate, the court may appoint a master." (Emphasis added.) Even when there is no dispute, the Probate Court has regularly appointed masters for many uncontested petitions to approve fiduciary accounts.

Rule 28 authorizes the court to appoint a Master.¹ Rule 29 describes the role of the Master.² The commentary to Rule 29 provides further insight, including the descriptive phrase, "the master serves as the eyes and ears of the court."³

Some Probate Court-appointed Masters refer to Rule 29 as their authorization to participate in ex parte communications as part of their investigations. Lawyers who find it advantageous to communicate ex parte with Masters also refer to this rule. However, nothing in the rule addresses whether a Master is allowed ex parte communications in conducting his investigation as the eyes and ears of the court.

As a matter of practice, Masters should be able to inspect trustee records and interview "any employee of the fiduciary regarding the trust or estate" openly and not ex parte. The Master may notify all parties of his intention to interview or inspect, with invitations to appear, observe and present questions and objections. A Master can perform the fact-finding mission in the presence of all parties who elect to observe and participate. It is not unduly burdensome to require any party who submits a document to the Master to send a copy to all other parties. All telephone and email communications should be in the telephone presence of or with a computer email copy to every participant.

Hearsay and unsubstantiated assertions fail under normal evidentiary standards. Closing the ex parte corridor will lessen attempts at these and other questionable practices. While this may discourage freewheeling, it promotes the fairness objectives of the judicial process. All parties should have the opportunity to observe what information the Master receives and to suggest the need for further inquiry where the information is less than complete. Hearsay, absence of substantiation, and other evidential shortcomings may be exposed. The parties will have the opportunity to examine and inquire whether purported evidence meets the goals of the Rules of Evidence. Participation by all parties in the fact-finding procedure leads to a just result.

The Revised Code of Judicial Conduct Applies to Masters

The Hawaii Revised Code of Judicial Conduct disallows ex parte communications by or with the court and subjects Masters to all standards applicable to the court. Prior Canon 3(B)(7) mandated:

The judge shall accord to every person who has a legal interest in a proceeding, or that person's lawyer, the right to be heard according to law. A judge shall not initiate, permit, or consider ex parte communications, or consider other communications made to the judge outside the presence of the parties concerning a pending or impending proceeding . . . .

The pre-2009 Code had a separate part designated "APPLICATION." Application Rule A explained that a Master is subject to the same standards as a judge:

Anyone, whether or not as lawyer, who is an officer of a judicial system and who performs judicial functions, including an officer such as a . . . special master. . . is a judge within the meaning of this Code. All judges shall comply with this Code except as provided below.
(a) The provisions of this Code apply to fulltime judges. . . .
(b) A judge, within the meaning of this Code, is anyone who performs judicial functions, including an officer such as a master or referee, but not including an arbitrator or mediator. However, with respect to a master or referee, the determination of which specific Code provisions apply to an individual judicial officer depends upon the facts of the particular judicial service.⁴

The Hawaii Supreme Court in Estate of Samuel M. Damon,⁵ applied this rule to hold that the Master was subject to the rules on conflict of interest:

Inasmuch as a "master" falls within the RCJC's definition of a "judge," [6] the conflict of interest rules in the Revised Code of Judicial Conduct applies to masters in a probate proceeding, which provides in part that "[a] judge must avoid all impropriety and appearance[s] of impropriety."

In Hawaii, all court-appointed Masters are governed by the Hawaii Revised Code of Judicial Conduct, unless "the facts of the particular judicial service" make a particular Code provision inapplicable. The Code sets no standards for determining how and when to apply "the facts of the particular judicial service." When a Master engages in fact-finding "as the eyes and ears of the court," is there any rational argument justifying the avoidance of Rule 2.9(a), prohibiting ex parte communications?

The Revised Code of Judicial Conduct Prohibits Ex Parte Communications.

The Hawaii Rules of Judicial Conduct were amended, effective January 1, 2009. The Application section was moved from the end to near the beginning. "I. APPLICABILITY OF THIS CODE" establishes when the various Rules apply to a judge. Subparagraphs (a) and (b) were not changed.

Rule 2.9⁶ prohibiting ex parte communications was...