Massachusetts rules out attorney sanctions for ex parte contact.

A plaintiff lawyer cannot be sanctioned for speaking with the defendant's employees who supervised the plaintiff, as long as they weren't the subjects of the lawsuit and had no decision-making authority, Massachusetts's highest court has ruled. (Messing, Rudavsky & Weliky v. President and Fellows of Harvard, No. SJC-08592 (Mass. Mar. 20, 2002).)

The ruling narrows the broad group of employees who may not be contacted as potential witnesses under some interpretations of the ABA's Model Rule of Professional Conduct 4.2.

"Defendants had succeeded to some extent before this decision in making plaintiff lawyers afraid to do any investigation that involved speaking to current employees," said Ellen Messing of Messing & Rudavsky in Boston. "Lawyers were assuming the state rule meant you could not talk to current or former employees at all--that's how bad things were." At least 41 states and the District of Columbia have adopted some version of the model rules.

Messing's firm filed a complaint against Harvard with the Massachusetts Commission Against Discrimination on behalf of Kathleen Stanford, a sergeant with the Harvard University police department, alleging gender discrimination. After filing, the firm communicated ex parte with five police department employees. Two supervised Stanford, but none was involved in the alleged discrimination or exercised management authority regarding the alleged discriminatory acts.

Massachusetts's professional conduct Rule 4.2 says, "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." The commission ruled that the firm's ex parte contact violated the rule, but it didn't issue sanctions.

When the firm removed the case to the superior court, Harvard sought and won sanctions. The court interpreted the rule to prohibit communication with any employee whose statements could be used as admissions against the organization.

On appeal, the state's Supreme Judicial Court reversed the sanction and narrowed the range of employees who are off limits, saying the superior court's interpretation of Rule 4.2 was overly broad. It found that the ethics rule prohibits "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."

Now lawyers can interview lower-level employees freely, as well as some managers, said Messing. "For example, in a products liability case involving a defective machine part, you could interview not only all the machinists on the shop floor who saw how the machine was being used, but also managers if they were eyewitnesses to the use of a machine or observed the production process of the machine--as long as they didn't have direct responsibility for it."

Judge Judith Cowin wrote for the high court, "Our decision may initially result in some increased litigation to define exactly which employees fall within the bounds of the rule. Although `a bright-line rule' in the form of a `control group' test or a blanket ban on all employee interviews would be easier to apply, the rule we adopt is ... fair, and will allow for ex parte interviews without prior counsel's permission when an employee clearly falls outside of the rule's scope."

Whether other states will adopt this view remains to be seen, but "it's a breath of fresh air," said Messing. Many courts had struggled with the meaning of the word "admissions" in the ABA/s model rule that said lawyers can't interview people who are able to make admissions on behalf of the corporation. While some courts interpreted the word broadly to apply to anyone capable of making statements admissible in court under the hearsay rule, the Massachusetts court found that in the context of ethics there was no reason to treat "admissions" as it is handled under evidence law, said Messing.

In February, the ABA revised its model rules to delete the comment containing the "admissions" language because it was too confusing.

"If you look at what the ABA did, if you look at what the Massachusetts court did, you're looking at the wave of the future," said Messing.