Lawyers Journal

Making contact: The trouble with interpreting Rule 4.2

Lawyers have long been precluded from
communicating with an adverse party or a person with
adverse interests to the lawyer's client if counsel
represents that person. See Canon Seven, DR 7-
104(A)(1), superseded on Jan. 1, 1998, by Mass.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 subjects of frequent calls to Bar
Counsel's ethical helpline. The recent decision of the
Supreme Judicial Court in Messing, Rudavsky &
amp; 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&
amp; 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&
amp;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. <<br />I>Grina, et al., No. 01-11774-REK, 2002 U.S. Dist.
Lexis 5512 (D. Mass. March 29, 2002), interpreted MR&
amp;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 8542 (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.

Jane Rabe is assistant bar counsel at the Board of
Bar Overseers.

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