Massachusetts Law Review

Navigating the Investigation Quagmire after Messing and Patriarca

Gerard Clark
Gerard J. Clark is a professor at Suffolk University Law School. The author would like to thank Andrew Perlman of the Suffolk University Law School faculty for his assistance in the preparation of this article.
I. Introduction

The difficult and controversial question of the propriety of a lawyer's contact with an organizational adversary's employees and agents under Model Rule 4.2 of the American Bar Association Model Rules of Professional Conduct has troubled the bench and bar for many years. The Massachusetts Supreme Judicial Court confronted the question on three occasions in 2002. In March, the court issued its decision in Messing, Rudavsky & Weliky, P.C. v. President & Fellows of Harvard College;1 in June, it revised Comment 4 to Rule 4.2 of the Massachusetts Rules of Professional Conduct (Comment);2 and, in November, it decided Patriarca v. Center For Living & Working, Inc.3 The authorities and precedent on that matter were in disarray, and the issue had been the subject of a decade-long controversy between the American Bar Association (ABA) and the United States Department of Justice.4 The bar's strong interest in resolution of the question was illustrated by the number of amicus curiae briefs filed in the two cases5 and by the overflow crowds, consisting mostly of lawyers, at the oral argument of Messing.6 The Supreme Judicial Court's answer to the question presented is more than a narrow interpretation of Rule 4.2, but is a broad statement, not only about how lawyers inform themselves about their clients' problems on a day-to-day basis, but also about corporate privilege and accountability.

This article will explore the history of Model Rule 4.2 and discuss its adoption in Massachusetts. It then will review Messing, the June 2002 amendments to Comment 4 of Massachusetts Rule 4.2, and Patriarca. It will illuminate problems unresolved, and possibly created, by the Supreme Judicial Court's current reading of Rule 4.2. Finally, it will suggest that the policing of attorneys' ethics by the judiciary in the heat of litigation is inappropriate.

II. History and Policy of Rule 4.2

David Hoffman's influential Resolutions7 state, "I will never enter into any conversation with any opponent's client, relative to his claim or defense, except with the consent and in the presence of his counsel."8 This maxim is widely recognized by the American bar. For example, the Code of Ethics of the Alabama State Bar Association states that "[a]n attorney ought not to engage in discussion or arguments about the merits of the case with the opposite party, without notice to his attorney."9

The ABA has promulgated three model codes for lawyers since 1908: The Canons of Ethics in 1908 (Canons);10 The Model Code of Professional Responsibility in 1969 (Model Code);11 and the Model Rules of Professional Conduct in 1983 (Model Rules).12 The Canons state that "a lawyer should not in any way communicate upon the subject of controversy with a party represented by counsel: much less should he undertake to negotiate or compromise the matter with him, but should deal only with counsel."13 On the other hand, the Canons also provide that "[a] lawyer may properly interview any witness or prospective witness for the opposing side in any civil or criminal action without the consent of opposing counsel or party."14 The Model Code provides that "[d]uring the course of his representation of a client, a lawyer shall not [c]ommunicate or cause another to communicate on the subject of the representation with a party he knows to be represented by a lawyer in the matter unless he has the prior consent of the lawyer representing such other party or is authorized by law to do so."15 Model Rule 4.2 makes only three minor changes to the Model Code: the introductory clause is changed to "[i]n representing a client"; the term "party" is changed to "person"; and the phrase "lawyer representing such other party" is changed to "other lawyer."16

All renditions of the rule seem to assume the existence of litigation; indeed an application to transactional work appears to stretch the language. A prohibition of a lawyer involved in litigation from contacting an adversary party who is represented by counsel apparently is grounded in three notions. First, the adversary system relies on lawyers to present the distinctive positions of the parties based upon their own investigation, preparation and research. Second, a party's retention of counsel signals to the court and the other side that the party now has an exclusive agent to represent it in the matter in controversy.17 Third, it defends the contractual rights of the first lawyer hired against interference and competition by other lawyers.18 The prohibition empowers retained counsel to act as gatekeeper with respect to client information. Violations of Model Rule 4.2 bespeak of some kind of tortious interference with an agency relationship. The retention of the lawyer-agent signals a notice to the world of lawyer-investigators that subsequent inquiries should be made to the agent and not the principal. While they all address the impropriety of opposing counsel's contact with a represented party, none of the rules specifically addresses the question of the propriety of attorney contact with the employees, agents or constituents of an opposing institutional party. As will be seen below, the Supreme Judicial Court grappled with the issue in Messing, the Comment and Patriarca.

III. The Dispute between the ABA and the
Department of Justice

The interpretation of Model Rule 4.2 and its applicability to federal prosecutors led to open warfare between the ABA and the Department of Justice during the 1990s. The precipitating event appears to have been the opinion of the United States Court of Appeals for the Second Circuit in United States v. Hammad19 wherein the court found the government's tactics in an arson investigation violative of DR7-101, the predecessor to Rule 4.2, because the government's use of an undercover informant involved contact with a defendant who already had retained counsel in a related Medicare fraud investigation.20 The government "vigorously disputed" the position of the defense that the Rules of Professional Responsibility, promulgated by the New York Court of Appeals and adopted by the federal district court by local rule, apply to federal prosecutors in criminal investigations.21 The court found no reason to exempt federal prosecutors from the ethical rules.22

The decision sent shock waves through the Department of Justice.23 Defense attorneys generally are excluded from grand jury inquiries, and the government has always felt free to question witnesses and to use undercover agents, tipsters, eavesdropping and other tricks in ferreting out crime.24 Relying upon the general authority to enforce federal statutes,25 Attorney General Richard Thornburgh authorized Department of Justice lawyers to contact or communicate with any individual in the course of an investigation or prosecution, unless specifically prohibited by some principle of law, which would presumably include the Fifth and Sixth Amendments to the United States Constitution.26 Thornburgh's successor, Janet Reno, extended and formalized these powers in the Code of Federal Regulations, allowing investigations of "ongoing crimes or civil violations."27 This language would sanction, for instance, contact with individual brokers in an insider trading investigation against a securities brokerage house, without the knowledge or consent of house counsel. But the Department of Justice position was not well received in the courts.28

The relationship between the ABA and the Department of Justice festered.29 Over Thornburgh's vigorous objections, the ABA promulgated the ABA Standards for Criminal Justice, which bound prosecutors to local ethical rules.30 The Department of Justice responded by threatening to lead the nation's prosecutors in dissociating from the ABA.31 The resolution of the dispute came definitively in 1998 with the enactment of the Ethical Standards for Attorneys for the Government Act,32 which clearly mandates that federal government attorneys must comply with local ethical rules.33

The Model Rule also applies to state law enforcement agents. In Messing,34 the attorney general for the commonwealth filed an amicus curiae brief in which he argued that the public interest strongly encourages citizens to provide law enforcement agencies with information regarding crimes and violations of civil law.35 The attorney general suggested that the enforcement of laws involving minimum wage, workplace safety, fair housing and employment, public charities, insurance regulation and criminal law require attorneys and investigators to rely upon an information flow to the government from employees, informants and whistleblowers whose interests may be adverse to their employers.36 Comment 2 of the Massachusetts rule allows "constitutionally permissible investigative activities of lawyers representing governmental entities . . . when there is applicable judicial precedent . . . ."37 While Rule 4.2 makes an exception for investigations authorized by law,38 the attorney general claimed uncertainty as to the parameters of that exception and requested clarity from the court to guide his staff.39 The attorney general had legitimate concerns that a new precedent might undermine law enforcement objectives.

IV. Massachusetts Adoption of Model Rule 4.2

Massachusetts adopted its version of the Model Rules in 1998.40 Its Rule 4.2 is a verbatim adoption of Model Rule 4.2,41 just as the earlier Massachusetts 7-104(A)(1) was a verbatim adoption of the ABA Model Code.42 Massachusetts, however, has expanded the comments to the rule: Comment 2 excludes from coverage investigations by government lawyers engaged in law enforcement; Comment 3 extends coverage of the rule to nonlitigants; Comment 5 limits the rule to knowing violations; Comment 6 cross-references Rule 4.3 for those unrepresented; and Comment 7 excludes investigations with the permission of the court.43 Comment 4,44 the focus of most of the Supreme Judicial Court's attention in Messing, was, with one exception,45 a verbatim adoption of Model Rules Comment 2.

V. Application of Rule 4.2 to Organizational Clients

The simplicity of the rule's language hides the difficulties of its application to organizational adversaries. As the Supreme Judicial Court noted, the rule does not explicitly address the scope of the prohibition when the represented person is an organization. When the represented person is an individual, there is no difficulty determining when an attorney has violated the rule; the represented person is easily identifiable. In the case of an organization, however, identifying the protected class is more complicated.46 Comment 4 to the Model Rule suggests coverage of a person connected to an organization in three circumstances: first, if the person has "managerial responsibility" in the organization;47 second, if the person's act or omission may be legally "imputed" to the organization;48 and third, any person "whose statement may constitute an admission on the part of the organization."49 The institutional client may be a business entity like a corporation or a partnership, a nonprofit like a university or hospital or an unincorporated association like a trade association or a union. The lawyer may be in-house counsel or on continuous retainer; the retainer may be specific, like tax counsel, or more generalized.50

The rule comes into play only with respect to parties represented by counsel at the time of the inquiry. Large organizations, the very rich and organized crime figures might have continuous relationships with lawyers. Of course, most individuals do not have a lawyer on continuous retainer; neither do small organizations. They hire lawyers on an as-needed basis after the occurrence of an event that may demand counsel.

Much of the case law interpreting Rule 4.2 makes two assumptions, both of which serve to expand its coverage: first, that in-house or retained counsel's representation of the institutional entity comes into play with respect to any inquiry lodged at the entity that may have legal implications; and second, that counsel for the entity, by virtue of that status, has an implied attorney-client relationship with countless agents, or other constituents, within the institutional entity who never consented to his or her representation. This unilateral and all-encompassing professional relationship implies the power of counsel to shield employees from casual investigations by lawyers and their agents, although not from others. While the agents or employees of an organizational principal owe fiduciary duties to the principal within their scope of employment in order to advance and not undermine organizational goals, this duty should not include covering up violations of legal obligations imposed by law, whether criminal or civil.51 Although Rule 4.2 has the salutary effect of protecting against inaccuracies, inequalities of advantage and deception between the lawyer-questioner and the unsuspecting witness, it also has the effect of creating a generalized right for some individuals and institutions to be insulated from outside lawyer-initiated investigations that might uncover facts that may impose liability on the witness interviewed, or on his or her principal.52 This assumption of an all-encompassing unilateral attorney-client relationship has led many organizational counsel to assume they have the right to instruct all of the organization's agents or employees that they are prohibited from disclosing information about a matter in controversy through the use of the "no-contact letter."53 It is doubtful that such a unilateral and all-encompassing declaration that creates new conditions of employment can create a professional relationship, which, by virtue of the proscriptions of Rule 4.2, insulates employees, including disloyal employees and whistleblowers, from casual investigations by lawyers and their agents.54 At a minimum, Rule 4.2 frustrates many policies55 endorsed by law, state and federal: e.g., the National Labor Relations Act,56 which encourages union organizing; the Occupational Safety and Health Act,57 workers' compensation laws58 and antidiscrimination laws,59 which encourage disclosure about unsafe and unlawful conditions at the workplace.

At least four distinct principles are involved in an inquiry into the protection of information, the source of which is the agent of an institution: Model Rule 1.13 (Organization as Client);60 Model Rule 4.2 (Communication With Person Represented by Counsel);61 the attorney-client privilege;62 and the work-product doctrine.63 Client identification is left vague by Model Rule 1.13, which states that the lawyer for the organization represents the organization acting through its duly authorized constituents.64 The term "constituents" appears to be intentionally imprecise, including, in the corporate example, boards of directors, stockholders, senior management and employees.65 Analogies between representation of institutions and individuals,66 like an individual and trusted family counsel, only serve to obscure the relationship, which frequently concerns entity regulation. The substantive law teaches that a corporation is a bundle of agency relationships. Employees, regardless of where they stand on the organizational chart, owe fiduciary duties to the entity, limited, however, by the scope of their employment.67 Rule 1.13 does not address what one does if the various constituencies have conflicting goals, liabilities or interests. Nor does it address how the principle of confidentiality should be observed among constituents who have differing amounts of culpable information and responsibility.

The corporate attorney-client privilege is a rule of evidence that blocks official inquiry into information disclosed in the relationship.68 Instead of testing whether the incidents of the attorney-client relationship have occurred between institutional counsel and an institutional agent, the courts apply a number of talismanic tests. The subject-matter test extends the privilege to all corporate personnel when conversing with corporate counsel, acting in that capacity, about the subject of their employment.69 The control group test extends the privilege to those having managerial responsibility for the matter under review.70 Stockholder derivative actions require an exception to the privilege because the plaintiff-stockholder, acting on behalf of the corporation, challenges the action of the corporate officers and thereby creates a conflict between corporate counsel and senior management.71

In Upjohn v. United States,72 the United States Supreme Court extended the federal attorney-client privilege to persons with whom corporate counsel almost certainly was prohibited from forming an attorney-client relationship because of a conflict of interest. The privilege is limited to communications "made for the purpose of facilitating the rendition of professional legal services to the client."73 In Upjohn, the Internal Revenue Service subpoenaed the answers to written questionnaires sent by the corporation's general counsel to various middle managers as part of the corporation's internal investigation of questionable foreign payments made by subsidiaries.74 The Court protected the information because it enabled counsel to give sound and informed advice.75 The difficulty with the case is that the client was Upjohn and the communications that were protected were those that occurred with field personnel who may never have met counsel. The Upjohn Court was unconcerned that the identity of the source of the communication and the identity of the client were different.

The scope of the work-product doctrine was announced by the Court in Hickman v. Taylor,76 where the plaintiffs in a wrongful death action on behalf of a seaman sought from defense counsel written statements of the decedent's fellow crew members.77 While it was clear to the Court that the attorney-client privilege did not apply because the crew members were not clients, it protected the statements as work-product, stating that proper representation requires the assembly of information without undue and needless interference and that a lack of such protection would lead to "[i]nefficiency, unfairness and sharp practices."78

VI. The Law of Investigations

The subject of investigations is a minefield of conflicting rules and principles from disparate fields of law. Criminal law prohibits the obstruction of justice,79 perjury,80 conspiracy,81aiding and abetting and serving as an accessory after the fact.82 A lack of candor in response to a direct question may be a crime83 by a client, and a lawyer who facilitates that lack of candor can likewise be held criminally responsible.84 The rules of evidence, in contrast, limit the flow of information before tribunals. Federal Rule of Civil Procedure 1185 requires diligent investigation of fact and law in judicial proceedings.86 Federal Rule 2387 requires communication with prospective clients who are potential members of a class that a lawyer seeks to represent.88 State and federal statutes, especially those protecting worker rights, mandate contacts that might otherwise violate Rule 4.2.89

The Model Rules govern information transfer and communication in a wide variety of ways. Rule 1.6 requires the confidentiality of client communications.90 Rule 3.3 regulates the offer of evidence to a tribunal.91 Rule 4.1 prohibits fraud and false statements to third parties.92 Rule 4.3 limits what a lawyer may say to an unrepresented person.93 The First Amendment to the United States Constitution protects speech, including consultation and advocacy,94 as well as the association95 of attorney with client.96 It protects the right to communicate and prohibits prior restraints.97

Further, in criminal cases, the Fifth Amendment to the United States Constitution protects against making incriminating statements to questions lodged by the government,98 and the Sixth Amendment protects against interference with the attorney-client relationship by government seeking to uncover evidence of crime.99 The analogies from criminal law are instructive. Massiah v. United States100 involved a claim that a government agent's testimony concerning admissions made by a defendant, which were surreptitiously recorded, after the defendant had been charged with drug trafficking and had retained counsel, were inadmissible because they were obtained in violation of the defendant's right to counsel.101 The government had secured the cooperation of a codefendant and had installed a listening device in the codefendant's car, allowing a government agent to hear the defendant's admissions, which were admitted into evidence against him.102 The Court labeled the period between arraignment and trial as the most critical period of the proceedings for consultation, investigation and preparation for trial,103 and held that the government's use of the subterfuge to obtain the defendant's statement during this period in the absence of counsel was violative of the Sixth Amendment.104

Texas v. Cobb105 involved a murder conviction based upon statements the defendant made to police officers after proceedings against him had been initiated and in the absence of his appointed counsel.106 He had been charged with burglary, to which he confessed, but he denied killing the burglary victims.107 Fourteen months after being indicted for the burglary, the defendant, free on bond, was questioned by police officers without permission of counsel.108 The defendant's confession was upheld, because Chief Justice Rehnquist, writing for the 5-4 majority, held that the right to counsel is offense-specific,109 applying only to questioning about the burglary for which the defendant had already been indicted.110

VII. Messing

Messing was an appeal from an order of the Superior Court sanctioning the petitioner law firm (MR&W) for violations of Rule 4.2 and its predecessor.111 MR&W represented Kathleen Stanford, a sergeant on the Harvard University Police Department, in an administrative proceeding before the Massachusetts Commission Against Discrimination (MCAD), where Stanford charged sex discrimination.112 MR&W investigated Stanford's claim by taking statements from five proposed witnesses who were members of Harvard University Police Department, including two lieutenants.113 After MCAD ruled that this contact was improper, MR&W removed the case to the Superior Court.114 The Superior Court judge sanctioned MR&W in the amount of $94,419.14, representing costs and attorney's fees expended by the defendant law firm on its motion for sanctions.115 MR&W and Stanford appealed the order to a single justice of the Massachusetts Appeals Court.116 Unsuccessful before the Appeals Court, they petitioned a single justice of the Supreme Judicial Court pursuant to section 3 of chapter 211 of the Massachusetts General Laws.117

The Supreme Judicial Court turned to Comment 4 of Rule 4.2,118 which suggested that three groups of witnesses are covered by the organization's relationship with its counsel:119 those having managerial responsibility over the subject matter of the controversy; those whose conduct may be imputed to the organization;120 and those whose statements may be an admission attributable to the organization.121 The last group mentioned in the comment is defined by the admissions exception to the hearsay rule in the law of evidence,122 which the court noted is virtually limitless.123 The Supreme Judicial Court followed the rule of the leading case of Niesig v. Team I,124 which limits prohibited investigations to employees who have the legal power to bind the corporation in the matter or who are responsible for implementing the advice of the corporation's lawyer or whose interests are directly at stake in the representation.125

The Supreme Judicial Court summarized its new rule as prohibiting ex parte contact only 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 on behalf of the corporation to make decisions about the course of the litigation.126 Gone apparently is any reference to imputation or to the admissions rule in the rules of evidence. The court held that the "limits of the ethical rule are not dictated by the breadth or narrowness of local evidentiary rules."127

Applying these tests to the Harvard University Police Department personnel interviewed in the case, the Supreme Judicial Court concluded that Rule 4.2's prohibitions did not apply: although two of those interviewed were lieutenants who supervised Stanford, they were not deemed to have managerial responsibility in the sense intended by the comment.128 The court stated that its rule protects the organization from improper contacts with employees while promoting access to relevant facts by allowing informal interviews of witnesses without judicial approval.129

In June 2002, the Supreme Judicial Court revised Comment 4 to Rule 4.2 to conform to and perhaps clarify Messing.130 The new text limits Rule 4.2's prohibitions to 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. The two most expansive concepts, admissions and imputation, are excluded.131

IIX. Patriarca

Patriarca was a wrongful termination case brought by a registered nurse at the defendant Center for Living and Working, whose duties included assisting persons with permanent or chronic disabilities to live independently.132 Patriarca claimed she was terminated because she resisted the suggestions of the center's director that she participate in fraudulent billing.133 After interrogatories indicated that Patriarca's counsel had spoken to a number of former employees of the center, defense counsel moved for a protective order.134 The center cited confidentiality agreements protecting the defendant's practices from disclosure.135

A Superior Court judge barred Patriarca's counsel from contacting any former employees of the center on matters concerning their former employment unless defense counsel was present or permission was granted from the court or opposing counsel.136 A single justice of the Appeals Court authorized an appeal to a panel of the Appeals Court, and the Supreme Judicial Court granted the plaintiff's application for direct appellate review.137

The threshold question was whether a particular employee "[was] actually represented by corporate counsel."138 The Supreme Judicial Court read Rule 4.2 narrowly. It rejected any notion of blanket representation arising out of the simple fact of employment by an institution that is represented by counsel.139 A lawyer is prohibited from holding himself out as counsel to one who has never consented to the representation.140 Applying this new actual representation rule to the four witnesses covered by the protective order, the Supreme Judicial Court found that three of the witnesses were essentially coworkers of the plaintiff.141 Although a fourth witness was a central part of the center's management team,142 the court found no evidence in the record that he was involved in the events giving rise to the litigation.143 Although it cited to Messing throughout its opinion, the court seemed to significantly narrow that holding by ignoring its inquiry into managerial responsibility and into involvement in the facts giving rise to the litigation.144 The court did not find it necessary to decide specifically if Rule 4.2 applies to former employees because it found that these particular employees would not have been covered even if they were still working for the center.145 The court's final footnote, however, cited extensive authority from other jurisdictions, most of which suggest that Rule 4.2 would not apply to former employees.146 Thus, eight months after Messing, the court appeared to have disregarded the Messing questions in favor of the question whether institutional counsel had a true attorney-client relationship with the witness sought to be interviewed by adversary counsel. If so, there is Rule 4.2 coverage; if not, adversary counsel is free to conduct the interview.

IX. Critique

The Supreme Judicial Court's decision in Messing, reversing the Superior Court's assessment of $94,419147 costs against MR&W, was clearly correct. Attorney fees ought only be used for procedural defalcations that are egregious. Here MR&W was merely investigating its case; it was honest with the witnesses, who gave their statements voluntarily. The law firm had a right to the information, and it was relevant to the underlying action. The law surrounding Rule 4.2 was anything but clear. The award was solely for the cost of moving for sanctions; no other purpose was served by the motion.

The narrowing of the scope of Rule 4.2 was indeed welcome. The admissions exception to the hearsay rule has nothing to do with this kind of factual investigation, and the drafters of the comment to the Model Rules were ill advised to refer to it, as were their successors in Massachusetts.148 But the Messing opinion is confusing and internally contradictory. After ruling that a broad interpretation of the admissions test in the Comment to Rule 4.2 should be rejected because this interpretation would effectively prohibit the questioning of all employees who can offer information helpful to the litigation,149 the Supreme Judicial Court interpreted the rule to ban only contact "with those employees who have the authority to 'commit the organization to a position regarding the subject matter of the representation.'"150 These employees are later referred to as having "speaking authority" for the organization, i.e., individuals who could make decisions about the course of the litigation.151 If the opinion had stopped there, the rule would be clear and arguably correct.

In the next paragraph, however, the court backtracked and added those employees with managerial responsibility in the matter and those who committed the wrongful acts at issue in the litigation.152 Four pages later the court referred to its new rule as including those whose acts or omissions may be imputed to the organization for purposes of civil or criminal liability.153

The application to the facts is confusing as well. Two of those interviewed by MR&W were lieutenants, superior in rank to the plaintiff. Certainly if these lieutenants were blatant sexists who had belittled the plaintiff's work by suggesting female inferiority, these acts would have been imputed to Harvard University Police Department. But the Supreme Judicial Court cited the plaintiff's failure to name the lieutenants in the complaint154 and the plaintiff's affidavit exculpating these witnesses to conclude that they were not active participants.155 Next the court asked whether the lieutenants exercised managerial responsibility over the subject matter.156 The intuitive answer is yes. But the court found otherwise, stating that some supervisory authority over coworkers is not the kind of supervisory authority intended by the Comment.157 The court found no evidence in the record that the lieutenants completed any evaluations or offered any opinion of the plaintiff.158 This is at odds with the Superior Court judge's finding: "Each lieutenant in the HUPD was responsible for managing a division of officers, which included supervision and evaluation of sergeants under their command. [The two lieutenants] both supervised Stanford [the plaintiff] by directing and evaluating her work performance."159 If the same facts as Messing were to repeat themselves, an analysis of the Supreme Judicial Court's Messing opinion would suggest that interviewing Stanford's coworkers would be a dangerous course of action for plaintiff's counsel,160 because the lieutenants had some managerial responsibility for Stanford and, before an interview, it is impossible to tell whether any of these prospective witnesses were involved in the decisions about which Stanford was complaining.

In vicarious liability situations, principals generally are liable for the civil wrongs of their agents. For example, agents can bind principals in contract with third parties, and third parties have a claim against the principal in case of breach.161 Similarly in tort, the principal (usually called a master), who has the additional right to control the physical conduct of the agent (or servant), is liable for tortious injury inflicted by his employee.162 Contract liability, common in purchases and sales, usually follows strict protocols involving price, supply and established forms.163 Tort liability typically arises out of serendipity or mistake by the servant or employee.164 In either case, the attorney for an injured party will be confronted by the question of whom to interview and how Rule 4.2 will apply.

Patriarca succeeds, while Messing, and Comment 4 of Rule 4.2 fail, by asking the most fundamental question: whether agent-witnesses, whose testimony is sought, have an attorney-client relationship with institutional counsel.165 Did Harvard's law firm have an attorney-client relationship with these five police officers? Was Harvard's law firm the agent of the police officer witnesses as principals?166 The Model Rules require attorneys to consult with the client,167 to abide by client decisions,168 to hold inviolate client confidential information169 and to avoid the adverse effect170 of conflicting client interests. Judged by these standards agents like the police officer witnesses in Messing are not clients of counsel for Harvard, whether in-house or retained. Counsel for Harvard may consult with them, but clearly would not be required to abide by their decisions. Nor would their information be confidential, but would freely be shared with management for the institution's benefit. Likewise in Patriarca, did retained counsel for the center have such a relationship with the former employee witnesses who were contacted by Patriarca's lawyer? Further, in a seeming majority of cases, where a third party is charging the institution with wrongdoing, the agent-perpetrator is individually subject to liability with possible collateral consequences, including loss of employment. This individual liability creates a conflict of interest between institutional counsel and an agent like an employee.171 Indeed, the attribution of an attorney-client relationship to situations where none exists imposes a bar to relationships where employees might become better informed about their rights.172 Nor are they shielded from casual investigation by journalists, insurance investigators or law enforcement personnel.

While Patriarca's emphasis on the existence of an attorney-client relationship helps, it nonetheless indicates in its analysis of the facts that a close examination of the duties of the proposed witness will still need to be done by adversary counsel.173 Seeking permission of the court is no solution before litigation is filed, or indeed in transactional matters.174 The revision of Rule 4.2's Comment 4 is also helpful, but not enough. The revision should have excluded any reference to managerial powers or indeed to those who committed the wrongful act. It should have protected only those who had already consulted with institutional counsel and with whom institutional counsel had made a commitment to represent.

If, on the other hand, the institution seeks to establish a common defense strategy against some civil claim of an outsider, institutional counsel must seek to minimize possible conflicts by assuring that the witness-employee is indemnified against any damage claims and otherwise held harmless for any resulting finding of liability. Confidences would need to be maintained unless waived.

Finally, one might ask what became of the sex discrimination claim of Stanford or the wrongful discharge claim of Patriarca that was supposedly the basis for all of this.175 Their claims got lost in an ethical sideshow that must appear strange to those outside the profession. First, ethical rules should not be used as substantive rules in litigation.176 The Rules of Professional Conduct create a licensor-licensee relationship between the Supreme Judicial Court and lawyers admitted to practice under its auspices. The rules are the conditions that lawyers must meet in order to remain in good standing. They do not confer substantive rights on individuals. Claims of violation of these rules are reported to the Board of Bar Overseers, which is referred to as the exclusive disciplinary jurisdiction, in Supreme Judicial Court Rule 4:01. Violations such as the one presented in this case would rarely result in harsh disciplinary sanctions.

Nor should the Rules of Professional Conduct be used in combination with Rule 11 of the Massachusetts Rules of Civil Procedure177 to empower adversary counsel to act as a continuing disciplinary monitor, empowered to use all the tools of discovery to delve into the files of an adversary and create a costly and time-consuming satellite litigation.178 Indeed, the opinions in both Messing and Patriarca appear to assume some sort of inherent power in the Superior Court to discipline attorneys who appear before it by shifting fees, issuing fines and punishments, suppressing the fruits of a lawyer's investigations and directing counsel's representation of the client.179 Nor should Rule 4.2 be converted into some sort of exclusionary rule. The Sixth Amendment is limited to criminal cases. The motions in both Messing and Patriarca appear as attacks on adversary counsel to disrupt messy litigation. In Messing, the motion seems to have been used by a large institutional client with a large institutional law firm to grind a female minority security guard and her small law firm into the ground for having the temerity to charge Harvard with discrimination. Similarly, the Rule 4.2 motion in Patriarca served to disrupt litigation that appears to have had the potential for embarrassment for the defendant.

The Rules of Professional Conduct do not create individual rights and, even if they did, they are not the rights of either of the institutions or their law firms and, thus, neither has standing to invoke them.180 The parties with the supposed rights in this case were the affiant police officers in Messing and the coworkers of Patriarca. The rights would be in the nature of interference with an ongoing attorney-client relationship. But neither set of witnesses had met with institutional counsel at the time of the interviews. If these witnesses had such rights, they were assumedly waivable after disclosure. Any broader claim by employers to control their employees in unsolicited investigations would create a new condition of employment that would have to be bargained for and included in a collective bargaining agreement for unionized workers.

Rule 4.2 is a prohibition on speech181 and acts as a prior restraint on speech.182 It therefore must serve a compelling governmental interest under free speech analysis.183 Indeed, the American Civil Liberties Union suggested in its amicus brief in Messing that the rule operated to violate freedom of association.184

Any broader insulation of organizational agents from questioning would have to be legislated. The policy question is whether the organizations should generally be protected from investigations of lawyers representing potential adversaries. The Sixth Amendment offers analogous protections in criminal cases from police questioning after counsel has filed an appearance. Expansion into civil cases presents an interesting policy question, but, on balance, the legislature might reject it as sacrificing the search for truth and vesting far too much power in organizational counsel to create walls against unwelcome investigations. It certainly should not be implied from a provision in the Rules of Professional Conduct.

1. 436 Mass. 347 (2002), decided Mar. 19, 2002.[back]

2. Mass. Rules of Prof'l Conduct R. 4.2 cmt. 4 (2002).[back]

3. 438 Mass. 132 (2002), decided Nov. 14, 2002.[back]

4. See infra notes 19-33 and accompanying text.[back]

5. Amicus briefs in Messing were filed by the following: Teachers of Professional Responsibility; National Employment Lawyers Association; AFL-CIO; the NAACP Legal Defense & Educational Fund, Inc.; American Civil Liberties Union of Massachusetts; Greater Boston Legal Services; Boston Area Management Attorneys Group; and Attorney General of the Commonwealth of Massachusetts. See Messing, 436 Mass. at 349. In Patriarca, amicus briefs were filed by the following: Attorney General of the Commonwealth of Massachusetts; National Employment Lawyers Association; Boston Bar Association's Lawyers' Committee for Civil Rights Under Law; Disability Law Center; Associated Industries of Massachusetts; New England Legal Foundation; Massachusetts Academy of Trial Attorneys; United States Attorney for the District of Massachusetts; and United States Department of Justice. See Patriarca, 438 Mass. at 132.[back]

6. John O. Cunningham, Employment Law Permissible Contact with Employees to be Decided, Mass. Lawyer's Weekly, Nov. 26, 2001, at 1.[back]

7. David Hoffman, Fifty Resolutions in Regard to Professional Deportment, in A Course Of Legal Study 752-75 (2d ed. 1836).[back]

8. See id.[back]

9. Ala. State Bar Ass'n Code of Ethics § 45 (1887).[back]

10. Canons Of Prof'l Ethics (1908).[back]

11. Model Code Of Prof'l Responsibility (1969).[back]

12. Model Rules Of Prof'l Conduct (1983).[back]

13. Canons Of Prof'l Ethics Canon 9.[back]

14. Id. at Canon 39. The canon goes on to warn against inducing the "witness to suppress or deviate from the truth." Id.[back]

15. Model Code Of Prof'l Responsibility DR 7-101 (A)(1).[back]

16. Model Rules Of Prof'l Conduct 4.2.[back]

17. The policy origins of the rule are unclear. The Comments to the Model Rule speak merely to applications of the rule and to exceptions to its applicability. The ethical consideration to the predecessor of the rule in the Model Code, EC 7-17, merely restated the obligation, and the Canons of Ethics speak only of a fear against misleading the party in question. See Canons of Prof'l Ethics Canon 9. On the other hand the Massachusetts rule applies outside of the adversary system, as the Comment to Rule 4.2 makes clear.[back]

18. From a more skeptical perspective, the rule arguably protects, first, a lawyer's economic relationship with a client from competition by other lawyers; and, second, a lawyer's opinions from being second-guessed by consultation with a competitor. See Gerard J. Clark, Fear and Loathing in New Orleans: The Sorry Fate of the Kutak Commission's Rules, 17 Suffolk U. L. Rev. 79, 90 (1983) (suggesting that much of professional self-regulation is motivated by lawyer self-interest).[back]

19. 858 F.2d 834 (2d Cir. 1988).[back]

20. Id. at 838.[back]

21. Id. at 836.[back]

22. Id. at 837.[back]

23. Jerry E. Norton, Government Attorneys' Ethics in Transition, 72 Judicature 299, 303 (1989).[back]

24. William J. Stuntz, Lawyers, Deception and Evidence Gathering, 79 Va. L. Rev. 1903, 1915 (1993) (summarizing the unsavory business of crime stopping).[back]

25. 28 U.S.C. § 533 generally provides that the United States Attorney General may appoint officials to prosecute crimes and to conduct such other investigations regarding official matters as may be directed by the attorney general.[back]

26. See Roger C. Crampton & Lisa K. Udell, State Ethics Rules and Federal Prosecutors: The Controversies over the Anti-Contact and Subpoena Rules, 53 U. Pitt. L. Rev. 291, 320 (1992); Richard Thornburgh, Ethics and the Attorney General: The Attorney General Responds, 74 Judicature 290, 291 (1991).[back]

27. 28 C.F.R. §§ 77.1-77.5.[back]

28. See e.g. United States v. Lopez, 4 F.3d 1455, 1464 (9th Cir. 1993) (Department of Justice contact with defendant, even at behest of defendant, is improper); In re Howes, 940 P.2d 159, 164-65 (1997) (disciplinary action against Department of Justice attorney).[back]

29. Other reasons for the deterioration in the relationship were the increasing use by the Department of Justice and United States Attorney's Offices across the nation of subpoenas directed at attorneys and seizure of attorneys' fees when they were the fruit of a criminal enterprise. See Max D. Stern & David Hoffman, Privileged Informers: The Attorney Subpoena Problem and a Proposal for Reform, 136 U. Pa. L. Rev. 1783, 1791 (1988); United States v. Klubock, 832 F.2d 664, 670 (1st Cir. 1987) (discussion of the supremacy of federal law); Kathleen F. Brickey, Tainted Assets and the Right to Counsel - The Money Laundering Conundrum, 66 Wash U. L. Q. 47, 55 (1988); Caplin & Drysdale, Chartered v. United States, 491 U.S. 617, 635 (1989) (holding that neither the attorney-client privilege nor the Sixth Amendment prohibits the government from subjecting assets intended for attorney's fees from forfeiture).[back]

30. ABA Standards Relating to the Administration of Criminal Justice (1992).[back]

31. See Crampton & Udell, supra note 26, at 375.[back]

32. 28 U.S.C. § 530B.[back]

33. Forty states have adopted the Model Rules. New York continues with its code based upon the Model Code. Other jurisdictions including California, District of Columbia, Illinois and Virginia have significant deviations from the Model Rules. Nathan Crystal, Professional Responsibility: Problems of Practice and the Profession 13 (2000).[back]

34. 436 Mass. at 349 n.2.[back]

35. Brief of Amicus Curiae Attorney General at 5, Messing, Rudavsky & Weliky, P.C. v. President & Fellows of Harvard College, 436 Mass. 347 (2002).[back]

36. Id. at 10-14.[back]

37. Mass. Rules of Prof'l Conduct R. 4.2 cmt. 2.[back]

38. Id. R. 4.2.[back]

39. In re John Doe, Inc., 194 F.R.D. 375, 377 (D. Mass. 2000) (Judge Saris referred to the law of criminal investigations as a "legal wilderness").[back]

40. See generally Mass Rules of Prof'l Conduct.[back]

41. Rule 4.2, adopted by the Supreme Judicial Court in 1998, states: "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." Mass. Rules of Prof'l Conduct R. 4.2, Supreme Judicial Court Rule 3:07.[back]

42. See Model Code of Prof'l Responsibility.[back]

43. See generally Mass. Rules of Prof'l Conduct.[back]

44. Massachusetts Rules of Professional Conduct Rule 4.2 Comment 4 stated 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 with persons having managerial responsibility on behalf of the organization with regard to the subject of the representation, and with any other person whose act or omission in connection with that matter may be imputed to the organization for purposes of civil or criminal liability or whose statement may constitute an admission on the part of the organization. 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).[back]

45. The Model Rule 4.2 Comment limits the coverage of those exercising managerial responsibility to such responsibility with regard to the subject matter of the representation, whereas the Massachusetts Comment 4 expands the coverage to anyone exercising managerial responsibility. See Mass. Rules of Prof'l Conduct R. 4.2 cmt. 4.[back]

46. Id.[back]

47. Id.[back]

48. Id.[back]

49. Id.[back]

50. Gerard J. Clark, American Lawyers in the Year 2000: An Introduction, 33 Suffolk U. L. Rev. 293, 305 (2000) (description of how lawyers are organized).[back]

51. For instance, in the debacle surrounding the deregulation of the savings and loan industry, the Office of Thrift Supervision (OTS), which had a statutory right to access to the books of savings and loan institutions, was frustrated in its attempts to investigate and prevent the looting of one savings and loan association's assets by its counsel, which insisted that all requests for information from OTS to the client be funneled through counsel. This caused delay and contributed to the atmosphere of contentiousness, resulting in the savings and loan association's loss of some $3.4 billion, which liabilities were then transferred to the American taxpayer. William H. Simon, The Kaye Scholer Affair: The Lawyer's Duty of Candor and the Bar's Temptations of Evasion and Apology, 23 Law & Soc. Inquiry 243, 248 (1998); Cf. Keith Fisher, Neither Evaders Nor Apologists: A Reply to Professor Simon, 23 Law & Soc. Inquiry 341, 361 (1998).[back]

52. Model Rules of Professional Conduct Rule 3.4(f) prohibits certain requests to hide information.[back]

53. See generally John Leubsdorf, Communicating with Another Lawyer's Client: The Lawyer's Veto and the Client's Interest, 127 U. Pa L. Rev. 683 (1979).[back]

54. Vega v. Bloomsburgh, 427 F. Supp. 593, 595 (D. Mass. 1977) (holding a no-contact letter violated the First Amendment to the United States Constitution).[back]

55. Indeed, the United States Court of Appeals for the First Circuit has held that non-assistance agreements - wherein employees who settle discrimination claims are bound not to assist others with similar claims - are unenforceable. EEOC v. Astra USA, Inc., 94 F.3d 738, 743 (1st Cir. 1996). Courts also have noted the dangers of witness intimidation. NLRB v. Robbins Tire and Rubber Co., 437 U.S. 214, 240 (1978) (federal labor law protects witnesses to violations).[back]

56. See 29 U.S.C. §§ 151-169. (protecting concerted actions assumedly at the direction of union counsel).[back]

57. See 29 U.S.C. §§ 651-678.[back]

58. Federal Employers' Liability Act, 45 U.S.C. §§ 51-60 (1986).[back]

59. Mass. Gen. Laws ch. 150E; 42 U.S.C. §§ 2000d-2000d-7.[back]

60. See Model Rules of Prof'l Conduct R. 1.13.[back]

61. See id. at R. 4.2.[back]

62. Fed. R. Evid. 503 (Proposed).[back]

63. Mass. R. Civ. P. 26.[back]

64. See Model Rules of Prof'l Conduct R. 1.13. The predecessor in the Model Code stated the lawyer "owes his allegiance to the entity and not to a stockholder, director, officer, employee, representative, or other person connected with the entity." See Model Code of Prof'l Responsibility EC 5-18.[back]

65. See Model Rules of Prof'l Conduct R. 1.13 cmt. 1.[back]

66. The imprecision of the analogy between individuals and corporations has plagued the law since 1888 when the Supreme Court first ruled that corporations had constitutional rights. Santa Clara County v. S. Pac. R.R. Co., 118 U.S. 394, 417 (1886) (corporations are persons under the Fourteenth Amendment); First Nat'l Bank of Boston v. Bellotti, 435 U.S. 765, 778 (1978) (ruling corporations have rights of free speech).[back]

67. Chelsea Indus., Inc. v. Gaffney, 389 Mass. 1, 11-12 (1983) (saying an employee must act "solely for his employer's benefit"). [back]

68. Charles W. Wolfram, Modern Legal Ethics 284 (1986).[back]

69. Glen Weissenberger, Toward Precision in the Application of the Attorney-Client Privilege for Corporations, 65 Iowa L. Rev. 899, 913 (1980).[back]

70. Note, Attorney-Client Privilege for Corporate Clients:The Control Group Test, 84 Harv. L. Rev. 424, 427 (1970).[back]

71. Garner v. Wolfinbarger, 430 F.2d 1093, 1103 (5th Cir. 1970).[back]

72. 449 U.S. 383, 397 (1981). See generally John Sexton, A Post-Upjohn Consideration of the Corporate Attorney-Client Privilege, 57 N.Y.U. L. Rev. 443 (1982).[back]

73. Proposed Federal Rules of Evidence, Rule 503 (b) in Moore's Federal Practice, Rules Pamphlet, Part 2 p. 1518. Although Rule 503 was never enacted, the proposed rule is often cited as stating the existing law. Massachusetts law is similar in requiring the communication to be "necessary to the proper conduct of legal business." Liacos et al., Handbook of Massachusetts Evidence 777 (7th ed. 1999). Massachusetts follows the control group test. Id. at 780.[back]

74. Upjohn, 449 U.S. at 387.[back]

75. Upjohn, 449 U.S. at 390. For a very different approach to the attorney-client privilege, see Grand Jury Subpoena Duces Tecum, 112 F.3d 910, (8th Cir. 1997), cert. denied sub nom., Office of the President v. Office of Independent Counsel, 521 U.S. 1105 (1997), where the United States Court of Appeals for the Eighth Circuit reversed an Arkansas federal district court denial of a motion by the Whitewater Independent Counsel, Kenneth Starr, to compel production of notes taken by White House Counsel during its representation of Hillary Clinton, rejecting a claim of attorney-client privilege. Id. at 912. The documents the Independent Counsel sought were two: notes taken by White House Counsel at a meeting attended by Mrs. Clinton, her personal lawyer and Special White House Counsel in July 1995 to discuss Mrs. Clinton's activities following the death of Vincent Foster, Deputy White House Counsel; and notes of Special White House Counsel taken at meetings during breaks in Mrs. Clinton's grand jury testimony investigating the discovery in the White House in January 1996 of missing billing records of the Rose law firm at which White House Counsel and Mrs. Clinton's personal counsel were present. Id. at 914. When White House Counsel refused to produce the documents, the Independent Counsel moved for an order to compel. Id. The United States District Court for the District of Arkansas denied the order to compel, finding that the documents were covered both by the attorney-client privilege and the work-product doctrine. Id. The Eighth Circuit reversed in a wide-ranging opinion issued in May 1997 that forebodes a more narrow protection for notes and work papers for all government attorneys, with a vigorous dissent. Id. at 926. The majority opinion rejected the claim of privilege by White House Counsel, reasoning that whenever White House Counsel appears, the real party in interest is the White House or the Office of the President. Id. at 916. The presence of White House Counsel at the meetings in question, involving the president's spouse, was thus inappropriate and therefore unprivileged. Id. at 923. Further, White House Counsel, as the representative of an entity of the federal government, could not resist a claim for information by another entity of the federal government, here a federal grand jury. Id. at 918.[back]

76. 329 U.S. 495 (1947).[back]

77. Id. at 498.[back]

78. Id. at 510-11.[back]

79. 18 U.S.C. § 1512(6) makes criminal "knowingly. . . engaging in misleading conduct toward another person, with intent to cause or induce any person to" secrete evidence. See also Mass. Gen. Laws ch. 268, § 13B.[back]

80. Mass. Gen. Laws ch. 268, § 1.[back]

81. Mass. Gen. Laws ch. 274, § 7.[back]

82. Mass. Gen. Laws ch. 274, § 4.[back]

83. 18 U.S.C. § 1001.[back]

84. President Clinton was suspended from practice for five years and fined $25,000 for giving false and misleading answers to questions in a civil deposition in the Paula Jones case. See Clinton v. Jones, 520 U.S. 681, 695 (1997) (denying presidential immunity for previous acts of sexual harassment). See generally Ronald D. Rotunda, Professional Responsibility A Student Guide 441 (2001 ed.).[back]

85. Fed. R. Civ. P. 11. Compare Mass. R. Civ. P. 11.[back]

86. Van Christo Adver., Inc v. M/A-COM/LCS, 426 Mass. 410, 416-18 (1998) (reversing Rule 11 sanctions for failure to investigate).[back]

87. Fed. R. Civ. P. 23. Compare Mass. R. Civ. P. 23.[back]

88. Bernard v. Gulf Oil Co., 619 F.2d 459, 467 (5th Cir. 1980), aff'd on other grounds, 452 U.S. 89 (1981) (ban on communication between class counsel and class members violates the First Amendment).[back]

89. Indeed, many employee protection statutes contemplate contact between the employees of an institution represented by counsel and adversarial counsel. See Pratt v. Nat'l R.R. Passenger Corp., 54 F. Supp. 2d 78, 82 (D. Mass., 1999) (federal law supersedes state ethical rules that prohibit employees from furnishing information about an accident); Melnychenko v. 84 Lumber Co., 424 Mass. 285, 295 (1997) (implying such contacts are protected under Massachusetts General Laws chapter 151B, section 4); see also Brief of Amicus Curiae National Employment Lawyers Association at 2-7, Messing, 436 Mass. 347.[back]

90. Model Rules of Prof'l Conduct R. 1.6.[back]

91. Model Rules of Professional Conduct Rule 3.4 (f), for instance, forbids a lawyer to "request a person other than a client to refrain from voluntarily giving relevant information to another party. . ."[back]

92. Model Rules of Prof'l Conduct R. 4.1.[back]

93. Id. R. 4.3.[back]

94. In re Primus, 436 U.S. 412, 431 (1978).[back]

95. The Brief of Amicus Curiae, filed by the American Civil Liberties Union of Massachusetts in Messing, emphasized that the police officer witnesses interviewed by MR&W supported the plaintiff's position and voluntarily spoke to her lawyers. Amicus Curiae Brief of American Civil Liberties Union of Massachusetts at 4-5, Messing, 436 Mass. 347. The interviewees were thus associating with the plaintiff in combating discrimination. Amicus therefore claimed that the associational protections announced in United Mine Workers v. Illinois State Bar Association applied. Id. at 11-12. See United Mine Workers of America, Dist. 12 v. Ill. State Bar Ass'n, 389 U.S. 217, 222 (1967) (rules that protect the administration of justice - in that case, anti-solicitation rules - "can in their actual operation significantly impair the value of associational freedoms"); NAACP v. Button, 371 U.S. 415, 429 (1963) (anti-solicitation rules frustrate the enforcement of civil rights). Further, amicus asserted that Rule 4.2 imposes on the witnesses an association to which they have not consented. Amicus Curiae Brief, supra at 10. The ACLU position finds further support in Hurley v. Irish-American Gay, Lesbian and Bisexual Group of Boston, 515 U.S. 557 (1995) (the constitutional right of association protects against forced association). The National Labor Relations Act, 29 U.S.C. §§ 151-158, and Massachusetts General Laws chapter 150A, sections 1-12 protect similar interests to engage in concerted activity for mutual aid or protection. See Amicus Curiae Brief supra, at 11. See generally Archibald Cox, The Right to Engage in Concerted Activities, 26 Ind. L.J. 319 (1951).[back]

96. Legal Services Corp. v. Velazquez, 531 U.S. 533, 546 (2001) (statutory limitation on claims that a lawyer may raise on behalf of a client violates the First Amendment); Bates v. State Bar of Ariz., 433 U.S. 350, 351 (1977) (attorney advertising is protected by the First Amendment).[back]

97. Near v. State of Minn. ex rel. Olsen, 283 U.S. 697, 720 (1931) (injunctions against publications are censorship and violate the First Amendment).[back]

98. In Fisher v. United States, where the Internal Revenue Service subpoenaed taxpayers' records from their attorneys, the Court stated that attorneys are protected against disclosure by the rights of their clients under the Fifth Amendment to the United States Constitution and held that the Sixth Amendment to the United States Constitution prohibits governmental interception of attorney-client information. Fisher v. United States, 425 U.S. 391, 400 (1976).[back]

99. Pamela S. Karlen, Discrete and Relational Criminal Representation: The Changing Vision of the Right to Counsel, 105 Harv. L. Rev. 670, 673 (1992).[back]

100. 377 U.S. 201, 206 (1964); see also Michigan v. Harvey, 494 U.S. 344, 348 (1990) (statements made in violation of the right to counsel can be used to impeach); Patterson v. Ill., 487 U.S. 285, 300 (1988) (no violation when defendant invokes right to counsel and then voluntarily talks); Kuhlmann v. Wilson, 477 U.S. 436, 440 (1986) (listening post informant); Michigan v. Jackson, 475 U.S. 625, 635 (1986)(once counsel is requested, no police interrogation can continue); United States v. Henry, 447 U.S. 264, 268 (1980) (cell-block snitch); Commonwealth v. Rainwater, 425 Mass. 540, 547-49 (1997) (discussed in Justice Breyer's dissent in Texas v. Cobb).[back]

101. Massiah, 377 U.S. at 205.[back]

102. Id.[back]

103. Id.[back]

104. Id. at 207.[back]

105. 532 U.S. 162 (2001).[back]

106. Id. at 166.[back]

107. Id.[back]

108. Id.[back]

109. The Court here relied on McNeil v. Wisconsin, 501 U.S. 171, 175 (1991).[back]

110. Cobb, 532 U.S. at 166 citing Michigan v. Jackson, 475 U.S. at 635 (the continuation of questioning after the defendant invoked right to counsel violates the Sixth Amendment).[back]

111. Messing, 436 Mass. at 348. Since the investigations in Messing occurred before the adoption of the Model Rules, the Supreme Judicial Court also cited the Massachusetts predecessor DR 7-104(A)(1), which substantially tracks Rule 4.2.[back]

112. Id. at 349-50. Specifically, the MCAD complaint alleged that Harvard University and the chief of the Harvard University Police Department had discriminated against Stanford based on her gender and on her earlier complaints of discrimination. Id.[back]

113. Id. at 350.[back]

114. Id.[back]

115. Messing, 436 Mass. at 350. The Superior Court judge reduced the defendant's claim of $152,225.96. Id. at 350 n.3.[back]

116. Id. MR&W proceeded under section 118, first paragraph of chapter 231 of the Massachusetts General Laws. Id. The single justice declined its petition and refused to report the matter to the full bench of the Appeals Court. Id.[back]

117. Mass. Gen. Laws ch. 211, § 3 states: The supreme judicial court shall have general superintendence of all courts of inferior jurisdiction to correct and prevent errors and abuses therein if no other remedy is expressly provided; and it may issue all writs and processes to such courts and to corporations and individuals which may be necessary to the furtherance of justice and to the regular execution of the laws. The Supreme Judicial Court views its powers under that statute as "extraordinary," Schipani v. Commonwealth, 382 Mass. 685, 685 (1980)(rescript); Morrissette v. Commonwealth, 380 Mass. 197, 198 (1980), and it exercises them sparingly. Soja v. T.P. Sampson Co., 373 Mass. 630, 631 (1977); Rosenberg v. Commonwealth, 372 Mass. 59, 61 (1977). The court "will not allow resort to G.L. c.211, §3, 'merely as a substitute for normal appellate review.'" Planned Parenthood League of Mass., Inc. v. Operation Rescue, 406 Mass. 701, 706 (1990) quoting Francis v. Dist. Attorney for the Plymouth Dist., 388 Mass. 1009, 1010 (1983)(rescript); accord Campiti v. Commonwealth, 417 Mass. 454, 456 (1994). In Messing, the Supreme Judicial Court recognized that MR&W had a right of appeal from an order requiring the payment of attorney's fees and sanctions, but, recognizing that "little guidance currently exists for lawyers as to what contact is appropriate," and realizing that its "resolution of the issue will have widespread implications for attorneys throughout the Commonwealth," it addressed the merits of MR&W's claim. Messing, 436 Mass. at 351 & n.4.[back]

118. See supra note 44 and accompanying text for full text of Rule 4.2 Comment 4.[back]

119. According to Comment 4 to Rule 4.2, an attorney may not speak ex parte to three categories of employees: (1) "persons having managerial responsibility on behalf of the organization with regard to the subject of the representation"; (2) persons "whose act or omission in connection with that matter may be imputed to the organization for purposes of civil or criminal liability"; and (3) persons "whose statement may constitute an admission on the part of the organization." Model Rules of Prof'l Conduct R. 4.2 cmt. 4. [back]

120. Id.[back]

121. Id.[back]

122. See Fed. R. Evid. 801(d)(2)(D).[back]

123. See Messing, 436 Mass. at 352 citing In re Air Crash Disaster near Roselawn, Ind., 909 F. Supp. 1116, 1121 (N.D Ill. 1995) (saying, "virtually every employee may conceivably make admissions binding on his or her employer").[back]

124. 558 N.E. 2d 1030 (N.Y. 1990). Niesig involved an employee seeking compensation for a fall from his employer's scaffolding. A number of his fellow employees were eye-witnesses to the event and plaintiff's counsel sought permission of the trial court to interview them informally over the employer's opposition. After the trial court denied the permission, the court of appeals reversed. It reviewed the policy and the history of the rule and limited the rule's application to persons whose acts bind the organization, can be imputed to the organization or who are responsible to implement the advice of counsel. Id. at 1035.[back]

125. Messing, 436 Mass. 356 citing Johnson v. Cadillac Plastic Group, Inc., 930 F. Supp. 1437, 1440 (D. Colo. 1996) (limiting institutional admissions to members of the organization's control group, which includes only the uppermost echelons of the organization's management).[back]

126. This result is substantially the same as the Niesig test because it "prohibit[s] direct communication . . . 'with those officials . . . who have the legal power to bind the corporation in the matter or who are responsible for implementing the advice of the corporation's lawyer . . . or whose own interests are directly at stake in a representation.'" Niesig, 558 N.E.2d at 1033 quoting C. Wolfram, Modern Legal Ethics 11.6 at 613 (1986).[back]

127. Messing, 436 Mass. at 359.[back]

128. Id. at 361 citing Orlowski v. Dominick's Finer Foods, Inc., 937 F. Supp. 723, 729 (N.D. Ill. 1996). This assertion is strange and explicitly at odds with the finding of the Superior Court. Two of the five affiants, John Rooney and Edward Sheridan, were lieutenants when MR&W questioned them. Rooney had held the rank of lieutenant since 1990, and Sheridan had held that rank since 1991. Both Rooney and Sheridan had significant managerial duties as a function of their rank. Each lieutenant in the Harvard University Police Department was responsible for managing a division of police officers, which included the supervision and evaluation of sergeants under their command. Rooney and Sheridan both supervised Stanford by directing and evaluating her work performance. Stanford v. President and Fellows of Harvard College, Civil Action No. 99-1042 (Mass. Superior (Middlesex) Feb. 7, 2001) (Memorandum of Decision and Order on Defendants' Motion for an Evidentiary Hearing and Sanctions) (Cratsley, J.) p. 2. "HUPD has a hierarchical management structure, with the Chief at the highest rank. Until the fall of 1996 when two captains were added to the managerial ranks, both lieutenants reported directly to the Chief. At the time MR&W communicated with HUPD employees, lieutenants reported to captains who, in turn, reported to the Chief." Id. The other three affiants were not of supervisory or managerial rank. Id. In a footnote, the Superior Court judge noted, "This court cannot help but note that the firm of Messing and Rudavsky, LLP[sic], has been involved in two previous disciplinary matters arising out of its ex parte contact with an opposing party's employees in which the courts explicitly acknowledged the uncertainty of the rule's scope. See Bruce v. Silber, 1989 WL 206452 (D. Mass. 1989) (Harrington J.); Hurley v. Modern Continental Construction Co., 1999 WL 95723 (D. Mass. 1999) (Collings J.). This uncertainty alone, should have prompted M&R [sic] to seek judicial authorization prior to making ex parte contact." [back]

129. Justice Cordy, in a separate opinion, agreed that the fines imposed against counsel by the Superior Court were improper, but disagreed with the majority's interpretation of Rule 4.2. Messing, 436 Mass. at 362 (Cordy, J., concurring in part and dissenting in part). He expressed concern about significant implications for defining the parameters of the attorney-client relationship, as well as for determining to what extent the statements of individuals will be imputed to organizations in legal proceedings. Id. at 365.[back]

130. 437 Mass. 1303 (2002). See Paul R. Tremblay, The No-Contact Rule in Massachusetts Post Messing, 10 Boston Bar Journal 10, 11-12 (Sept./Oct. 2002). [back]

131. The new Comment 4, effective June 5, 2002, states: 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). Comment 4 to Rule 4.2 of the Massachusetts Rules of Professional Conduct, Rule 3:07 of the Supreme Judicial Court Rules, 437 Mass. 1303 (2002).[back]

132. Patriarca, 438 Mass. at 134.[back]

133. Id.[back]

134. Id.[back]

135. Id.[back]

136. Id. at 133.[back]

137. Patriarca, 438 Mass. at 133.[back]

138. Id. at 135.[back]

139. Id.[back]

140. Id.[back]

141. Id.[back]

142. Patriarca, 438 Mass. at 139.[back]

143. Id. at 138.[back]

144. Id.[back]

145. Id.[back]

146. Id. at 140-41 n. 10. In Clark v. Beverly Health and Rehabilitation Services, Inc., 440 Mass. 270 (2003), decided on Oct. 29, 2003, the Supreme Judicial Court held that Rule 4.2 does not apply to former employees.[back]

147. The award was for 448.3 hours, which excluded the original request to include an amount for the Harvard Office of General Counsel. The original request was for $152,255.96. Stanford v. President and Fellows of Harvard College, Civil Action No. 99-1042 (Mass. Superior (Middlesex) Mar. 20, 2001) (Memorandum of Decision and Order On Defendant's Motion for an Evidentiary Hearing and Sanctions) (Cratsley, J).[back]

148. ABA Ethics 2000 Commission extensively revised the comments to Rule 4.2. The Restatement of the Law Governing Lawyers section 100 is similarly critical.[back]

149. Messing, 436 Mass. at 356-57. [back]

150. Id. at 357.[back]

151. Id.[back]

152. Id.[back]

153. Id. at 361.[back]

154. The lieutenants were not a covered "employer" under Massachusetts General Laws chapter 151B, section 1(5).[back]

155. Messing, 436 Mass. at 361.[back]

156. Id.[back]

157. Id.[back]

158. Id.[back]

159. Memorandum of Decision, supra note 147 at 2.[back]

160. Judge Young acknowledged the need for clarity in Siguel v. Trs. of Tufts College, 1990 WL 29199 (D. Mass. 1990) (Young, D.J.) (unpublished opinion, cited approvingly in Messing and Patriarca). He complained that seeking court permission for such interviews, where the court balances the interests of the parties, is a wasteful use of judicial resources, runs the risk of treating similarly situated litigants differently, and fails to provide attorneys with any practical standard by which to conduct discovery. Id. *4. An attorney confronted with the ethical dilemma of whether he can interview employees of a corporate defendant has little basis to answer this question without first litigating the issue. The balancing test is a case-by-case analysis that renders a different conclusion in each factual situation. The test simply fails to promote the underlying goal of the disciplinary rules - to give attorneys clear guidelines of ethical behavior. The importance of providing attorneys with concrete ethical guidelines cannot be underestimated. The disciplinary rules often carry the threat of possible sanctions against attorneys for ethical violations. Furthermore, the rules attempt to promulgate standards of acceptable ethical behavior. Id. at *4-5. Judge Young continued that harsh criticism: the Massachusetts Bar Association has promulgated an ethical opinion arguably binding on its members and open to citation as persuasive authority in the courts. Its opinion interprets the Rule as sweepingly as possible in a manner most protective of corporate interests and contrary to a number of considered decisions by a variety of courts and bar associations. In practical effect, however, such a sweeping interpretation of the Rule is unenforced and unenforceable. In every case in which an attorney has challenged the broad parameters of the Rule as drawn by the Massachusetts Bar Association, courts in this District have refused such broad enforcement, preferring, instead, a case-by-case balancing analysis. Id. at *5. citing Morrison v. Brandeis Univ., 125 F.R.D. 14, 19 (D. Mass. 1989), and Mompoint v. Lotus Dev. Corp., 110 F.R.D. 414, 419 (D. Mass. 1986)); see also Kaveney v. Murphy, 97 F. Supp. 2d 88 (D.Mass, 2000) (allowing inquiry into Cambridge Police Department). [back]

161. Restatement (Second) Of Agency § 144 (1958).[back]

162. Id. § 220.[back]

163. Id. [back]

164. Id.[back]

165. There is no bright-line test as to when an attorney-client relationship begins. Courts use detrimental reliance, reasonable belief and implied agreement in favor of creation. See DeVaux v. American Home Assurance Co., 387 Mass. 814, 819 (1983) (saying that a mere telephone call to law office secretary can create an attorney-client relationship).[back]

166. A threshold question is whether a particular employee is actually represented by corporate counsel, and answering the question in the negative in the case of a former employee.[back]

167. Model Rules of Prof'l Conduct R. 1.2 (a).[back]

168. Id. R. 1.2 (b). [back]

169. Id. R. 1.6 cmt. 1.[back]

170. Id. R. 1.7.[back]

171. The definitions of employer in Massachusetts General Laws chapter 151B, section 1 and federal Title VII of the 1964 Civil Rights Act, 42 U.S.C. § 2000d, appear to exclude individual liability attributable to the agents. Massachusetts General Laws chapter 151B, section 1 states: For an employer, by himself or his agent, because of the race, color, religious creed, national origin, sex, sexual orientation, . . . genetic information, or ancestry of any individual to refuse to hire or employ or to bar or to discharge from employment such individual or to discriminate against such individual in compensation or in terms, conditions or privileges of employment, unless based upon a bona fide occupational qualification. "Employer" is defined as: The term 'employer' does not include a club exclusively social, or a fraternal association or corporation, if such club, association or corporation is not organized for private profit, nor does it include any employer with fewer than six persons in his employ, but shall include the commonwealth and all political subdivisions, boards, departments and commissions thereof. . . Id. The federal prohibition states at 42 U.S.C. § 2000e-2: It shall be an unlawful employment practice for an employer - (1) to fail or refuse to hire or to discharge any individual, or otherwise to discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual's race, color, religion, sex, or national origin; or (2) to limit, segregate, or classify his employees or applicants for employment in any way which would deprive or tend to deprive any individual of employment opportunities or otherwise adversely affect his status as an employee, because of such individual's race, color, religion, sex, or national origin. The federal definition of "employer" at 42 U.S.C. § 2000e-1 is: "(b) The term 'employer' means a person engaged in an industry affecting commerce who has fifteen or more employees for each working day in each of twenty or more calendar weeks in the current or preceding calendar year, and any agent of such a person, . . .".[back]

172. Indeed, extension of the principle of the Superior Court in either case would inhibit a lawyer from taking on the representation of any employee in a claim against an employer who had a continuous relationship with counsel. [back]

173. Patriarca, 438 Mass. at 138.[back]

174. Even after litigation is filed, courts surely would be an obstacle to fast, efficient, and inexpensive investigations. [back]

175. Indeed, motions like those in Messing and Patriarca that question the ethics of adversary counsel are misjoinders. The parties and the claims are different than in the claim in chief. Attacking the ethics of one's adversary arises most often in motions to disqualify adversary counsel, which were labeled by Justice Liacos as part of a "catalogue of pretrial tactics" which use the code as a weapon in litigation. Borman v. Borman, 378 Mass. 775, 787 (1979). [back]

176. The Preamble to the Model Rules, as amended by The Ethics 2000 Commission, states at paragraph 20: Violation of a Rule should not itself give rise to a cause of action against a lawyer nor should it create any presumption in such a case that a legal duty has been breached. In addition, violation of a Rule does not necessarily warrant any other nondisciplinary remedy, such as disqualification of a lawyer in pending litigation. The Rules are designed to provide guidance to lawyers and to provide a structure for regulating conduct through disciplinary agencies. They are not designed to be a basis for civil liability. Furthermore, the purpose of the Rules can be subverted when they are invoked by opposing parties as procedural weapons. The fact that a Rule is a just basis for a lawyer's self-assessment, or for sanctioning a lawyer under the administration of a disciplinary authority, does not imply that an antagonist in a collateral proceeding or transaction has standing to seek enforcement of the Rule. Nevertheless, since the Rules do establish standards of conduct by lawyers, a lawyer's violation of a Rule may be evidence of breach of the applicable standard of conduct. Massachusetts substituted the relevant Model Rule Preamble with the following: "A violation of a canon of ethics or a disciplinary rule . . . is not itself an actionable breach of duty to a client." Fishman v. Brooks, 396 Mass. 643, 649 (1986). The Rules are designed to provide guidance to lawyers and to provide a structure for regulating conduct through disciplinary agencies. The fact that a Rule is just a basis for a lawyer's self-assessment, or for sanctioning a lawyer under the administration of a disciplinary authority, does not necessarily mean that an antagonist in a collateral proceeding or transaction may rely on a violation of a Rule." As with statutes and regulations, however, if a plaintiff can demonstrate that a disciplinary rule was intended to protect one in his position, a violation of that rule may be some evidence of the attorney's negligence." Id. at 649. [back]

177. Mass. R. Civ. P. 11; compare Fed. R. Civ. P. 11.[back]

178. Indeed the motion filed on behalf of Harvard sought an evidentiary hearing, discovery, suppression of information, disqualification of MR&W and costs. Appellant's Brief at 5, Messing, 436 Mass. 347.[back]

179. Wolfram, supra note 68, at 22.[back]

180. Joint Anti-Fascist Refugee Committee v. McGrath, 341 U.S. 123, 159 (1951) (plaintiff must assert an "interest protected in analogous situations at common law, by statute or by the Constitution").[back]

181. Gentile v. State Bar of Nev., 501 U.S. 1030, 1074 (1991) (invalidating the prohibition contained in Model Rule 3.6 prohibiting criminal defense counsel from making pre-trial statements to the press).[back]

182. Near v. Minn. ex rel. Olson, 283 U.S. 697, 720 (1931) (reversing a lower court order directed against the publication of a magazine as malicious and scandalous).[back]

183. The Florida Star v. B.J.F., 491 U.S. 524, 541 (1989) (reversing a money judgment against a newspaper for publishing the name of a rape victim because the state statute failed to be "narrowly tailored to a state interest of the highest order").[back]

184. Brief, Civil Liberties Union of Massachusetts at 11, Messing, 436 Mass. 347, citing In re Primus, 436 U.S. 412, 431 (1978) (protecting a lawyer's speech advocating abortion rights).[back]

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