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Commonwealth of Massachusetts

July 2002

Making Contact: The trouble with interpreting Rule 4.2

Jane Rabe

Lawyers have long been precluded from communicating with an adverse party or a person with adverse interests to the lawyer’s client if that person is represented by counsel. See Canon Seven, DR 7-104(A)(1), superseded on January 1, 1998, by Mass. R. Prof. C. Rule 4.2. Rule 4.2 provides:

In representing a client, a lawyer shall not communicate about the subject of the representation with a person the lawyer knows to be represented by another lawyer in the matter, unless the lawyer has the consent of the other lawyer or is authorized by law to do so.

Rule 4.2 is designed to protect the attorney-client relationship, to shield a person represented by counsel from unauthorized approaches and to prevent overreaching by counsel for adverse interests. The rule is easy to apply when dealing with an individual, but problems arise when the opposing party or “person” is an entity that acts only through its constituents. Whether and under what circumstances a lawyer representing a person with adverse interests to the entity or corporation may talk to the entity’s employees has long bedeviled the bar.

Since its adoption, Rule 4.2 and the old Comment [4] to that rule have been the subject of frequent calls to Bar Counsel’s ethical helpline. The recent decision of the Supreme Judicial Court in Messing, Rudavsky & Weliky, P.C. v. President and Fellows of Harvard College, 436 Mass. 347 (2002) (“MR & W”) and the new Comment [4], have now clarified some of the uncertainty about the application of Rule 4.2 to entities. This article briefly summarizes the decision and outlines the standards for ex parte communications with employees of an organization under the new Comment [4].

MR & W sued the President and Fellows of Harvard College (“Harvard”) for discrimination against its client based on her gender and for retaliating against her after she complained. After suit was instituted, MR & W contacted ex parte five Harvard employees. None was involved in the alleged discrimination or retaliation, nor did any of the employees exercise management authority regarding the allegedly discriminatory or retaliatory acts. A superior court judge imposed sanctions on MR & W on the grounds that the contact violated DR 7-104(a)(1) and its successor, Mass. R. Prof. C. 4.2.

The old Comment [4] to Mass. R. Prof. C. 4.2 provided the basis for the sanction. That comment, which was intended to provide “guidance” in interpreting the rule, explained that an attorney may not contact a corporation’s employee if (1) that employee “had managerial responsibility” regarding the subject of the controversy, (2) the employee’s act or omissions might be imputed to the organization for the purpose of civil or criminal liability, or (3) the employee’s statement might “constitute an admission on the part of the organization.” The Harvard employees contacted by MR & W did not fall within the first two categories, but they did fall within the third category described by the comment. Because any statement of any employee might constitute an admission if it concerned a matter within the scope of the employment, virtually any employee would be off-limits to opposing counsel. Although this construction of Rule 4.2 was “‘strikingly protective of corporations regarding employee interviews’”, the superior court felt bound to follow the old Comment [4] and imposed sanctions.

The Supreme Judicial Court rejected this “broad reading of the rule….” Instead, relying on the New York Court of Appeals decision, Niesig v. Team I, 76 N.Y.2d 363 (1990), the Court opted for a more narrow construction of the third category: the rule “ban[s] contact only with those employees who have the authority to ‘commit the organization to a position regarding the subject matter of representation.’” MR & W at 357. To be off-limits, the employee must have “speaking authority” for the corporation and “managing authority sufficient to give them the right to speak for, and bind, the corporation.” Employees with authority to commit the organization have the authority to make decisions about the course of the litigation, such as when to sue and when to settle.

This interpretation, together with the other two categories of the comment, prohibits ex parte contact with those employees who exercise managerial responsibility in the matter, who are alleged to have committed the wrongful acts at issue in the litigation, or who have authority to make decisions about the course of the litigation. Id. The Court’s decision thus balances the right of entities represented by counsel to have an attorney present when a lawyer for an opponent speaks with the employee and the public policy of promoting disclosure of relevant evidence.

On June 5, 2002, the Supreme Judicial Court struck the old Comment [4] to Rule 4.2 and inserted the new Comment [4] as follows:

In the case of an organization, this Rule prohibits communications by a lawyer for another person or entity concerning the matter in representation only with those agents or employees who exercise managerial responsibility in the matter, who are alleged to have committed the wrongful acts at issue in the litigation, or who have authority on behalf of the organization to make decisions about the course of the litigation. If an agent or employee of the organization is represented in the matter by his or her own counsel, the consent by that counsel to a communication will be sufficient for purposes of this Rule. Compare Rule 3.4(f).

Problems remain in applying Rule 4.2. As the Court itself noted, it might not be clear whether a particular employee has the legal power to speak for and bind the entity. In addition, the question remains as to the application of the rule to former employees of an entity, who, by definition, are not in a position to bind the entity but who might fall under the first two categories of the comment. The Supreme Judicial Court currently has pending before it, Patriarca v. Center for Living and Working, Inc., 2000 Mass.Super. Lexis 241 (May 30, 2000), raising the issue of the rule’s application to former employees.

A recent federal court decision, Intergen N.V. v. Grina, et al., No. 01-11774-REK, 2002 U.S. Dist. Lexis 5512 (D. Mass. March 29, 2002), interpreted MR & W to only apply to current employees and not former employees. In another recent decision, Schwartz et al. v. Camp Robin Hood, No. 01-12032-RWZ, 2002 U.S. Dist. Lexis 8342 (D. Mass. May 8, 2002), the federal court did not distinguish between former and current employees, but looked to whether the prospective witnesses fell within the test “either by virtue of their position in the…organization or because their conduct may have given rise to the litigation.” Lawyers are advised to review MR & W and the new Comment [4] before making contact with current and former employees of a represented entity.

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