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Special masters search, protect the privilege

By Nancy McCarthy
Staff Writer

Mike Osborne recalls with some bemusement the hundreds of hours spent as a special master on San Francisco’s infamous dog mauling case two years ago. He was called upon to help execute two search warrants at the home office of the attorneys who owned the killer dogs, and later helped search the cell of a Pelican Bay inmate connected to the case.

Mike Osborne
Osborne

“Everyone was trying to find out what was in the documents,” Osborne says. He couldn’t tell anyone then, nor will he disclose any information now.

The dog maul case and its surrounding media frenzy was an exception to the usually less eventful role of attorneys who serve as special masters in search warrant proceedings.

California law (Penal Code §§1524 (c)-(f)) provides for the appointment of a neutral special master to help police serve a search warrant on an attorney, physician, psychotherapist or member of the clergy who is not a suspect but may possess documentary evidence believed to be relevant to a criminal case.

The special master is appointed to protect the privilege that exists between the professional and his or her client, patient or congregant. Empowered to seize any items listed in the warrant, the special master accompanies police officers and actually conducts the search. He seals and keeps possession of the privileged items until a hearing is held, usually within three days, to determine if they are privileged. Review of the documents is left to the judge.

The State Bar maintains a list of about 375 attorneys approved for appointment to the little-known and unpaid job and is trying to expand the list. To be appointed, an attorney must have been a member of the bar for at least five years, cannot be “closely involved” in the field of criminal law and cannot have a record of discipline or be under investigation for ethical violations. Public defenders, district attorneys, lawyers who work for the attorney general or for any law enforcement agency, certified criminal law specialists and attorneys who devote “a substantial amount of time” to criminal law practice are not eligible.

Los Angeles deputy district attorney Anthony Colannino says the special master statute is crucial in the prosecution of certain criminal cases. Ordinarily, he explains, a special master will be called upon to conduct a search when there is no probable cause linking anyone in one of the four categories to the crime itself. “The special master goes in because (the subjects) are innocent parties who are like repositories of evidence,” he said.

For example, Colannino said a special master might be used in an insurance fraud case in which an attorney is attempting to win money for his injured client, but the client has fabricated an accident without the attorney’s knowledge.

Osborne signed up 10 years ago after learning about the program when he was a deputy district attorney in San Francisco. He’d switched to civil practice, but wanted to maintain his contacts with judges and attorneys in the criminal justice system.

He has been called on less than a dozen times in the past decade.

Accompanied by law enforcement, the special master goes to the office of the lawyer or doctor, presents the search warrant, usually takes the time to explain the procedure and gives the subject the opportunity to present the documents in question. If he’s lucky, the lawyer or doctor simply hands over the documents.

Most people facing a search warrant “are concerned and don’t understand” the process, Osborne said. “There’s a misconception that my role is to decide if something is confidential. My role is to look for documents that are on the search warrant.”

Often, “the first thing an attorney wants to do is litigate it,” Osborne said. One attorney called his managing partner in Chicago. Another asked Osborne to come back a week later.

No dice.

“Very politely, very gently we explain it’s a search warrant which gives me authority to search their premises,” Osborne said. Sometimes, all employees must remain in the building or an individual cannot leave the room. The special master also is empowered to break down doors, smash through walls and break into filing cabinets, if necessary.

The special master keeps any seized documents until they are turned over to the court. Colannino says reactions to the search warrant vary. “Nobody likes having the police show up. It’s a threatening atmosphere, even when the police are being kind and gentle,” he said. “Some people are offended, some cooperate, some don’t. Even though they may be initially agitated, once they realize the special master is there to protect confidentiality, usually they calm down.”

While most searches go smoothly, San Francisco’s dog mauling case took on a life of its own. Two huge Presa Canario dogs, owned by San Francisco lawyers Marjorie Knoller and Robert Noel, mauled a woman to death Jan. 26, 2001, in an apartment building where the victim and the lawyers lived.

Within a week of the incident, Osborne was called to make an initial search of the lawyers’ home office for documents “relating to the ownership and control of the dogs.” Knoller and Noel were not home, and because the building manager didn’t have a key to their residence, police broke down the door. Osborne said he knew this was not an ordinary case when he heard Noel tell a television reporter, “The Gestapo has just kicked down another Jewish door.”

About a week later, a reporter who had visited the couple’s apartment with Knoller reported seeing a book called “Manstopper!” on a table, and said the book had been missed in the original search. Osborne had to conduct another search.

Pursued by reporters in the media frenzy that by then surrounded the case, the unassuming Osborne’s image was widely broadcast. His children, his dad and his neighbors all wanted to know what he’d found, he said. Newspapers reported conflicting stories. “Nobody,” said Osborne, “got it right.”

He locked the seized material in his office, where it stayed for months.

Osborne later executed a search warrant at Pelican Bay state prison, because of allegations the lawyers were sending private, confidential documents to Paul Schneider, a client and inmate. Even if a client possesses evidentiary documents, they are under the control of the lawyer and a special master is required, Osborne explained.

He removed 12 boxes from Schneider’s cell.

When people ask what he found, Osborne smiled. “Really, it was just trash,” he said.

Because the case was so unusual, the judge asked Osborne to assist the court “almost in a property management role.” He devoted hundreds of hours over more than a year to the case, appearing in court 10 or 11 times. “It was a nightmare from the standpoint of juggling media attention and it was a very large time commitment,” he said. “The role I played was trying to manage this sideshow that was going on. Everyone was trying to find out what was in the documents.”

Van Nuys lawyer Larry Hanna has served as a special master about once every six months for the past 10 years, handling searches of attorneys, clergymen and physicians. He said the searches invariably take one full day and sometimes more, and the calls can come at any time.

“I love it,” Hanna says. “It gets me out of the office. I’m nosy by nature.”

He also says his work makes him a better attorney, because he sees the kind of disorganized record-keeping he thinks lawyers should avoid.

Hanna says he turns down three of four requests for his services, a record he thinks is probably common. He’s often in court or busy with his caseload and cannot take the time at the moment the search is needed.

There is no precise figure for how many times a special master is needed, but Los Angeles uses the most, followed by Orange, Sacramento and Alameda counties. Special masters are required to submit to the bar a report of their searches, although they don’t always do so. In the last 18 months, 41 summary search forms were turned in for Los Angeles.

Because attorneys on the list are not always available, the bar hopes to sign up more special masters. In addition, it will sponsor a training session at the annual meeting in September.

“Prosecutors, criminal defense attorneys and anyone who may be subject to a 1524 search needs to understand what is happening and why,” said Colannino. “The more information we can disseminate to people in practice, the better it is for everyone involved.”

The training will be held Friday, Sept. 5, and offers two hours of MCLE credit. More information about the special masters program is available from Brandi Burroughs, 415-538-2117; specialmasters@calbar.ca.gov.

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