The Massachusetts Supreme Judicial Court recently issued an opinion with important implications regarding contacting employees of a represented party. Messing, Rudavsky & Weliky, P.C. v. President and Fellows of Harvard College , SJC-08592.
In Messing, the SJC held that the Massachusetts Rules of Professional Responsibility prohibit “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” (emphasis added). This decision represents a sharp departure from the way in which courts previously have interpreted Rule 4.2 of the Massachusetts Rules of Professional Responsibility.
Rule 4.2 provides that, “[i]n representing a client, a lawyer shall not communicate about the subject of the representation with a person a 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.” Comment 4 to Rule 4.2 provides that in the case of an organization, an attorney may not speak ex parte with persons “having managerial responsibility on behalf of the organization with regard to the subject of the representation,” persons “whose act or omission in connection with that matter may be imputed to the organization,” or persons “whose statements may constitute an admission on the part of the organization.” Mass. R. Prof. C. 4.2, comment , 426 Mass. 1403 (1998).
The SJC interpreted Comment 4 to Rule 4.2 of the Massachusetts Rules of Professional Responsibility to “ban contact only with those employees who have the authority to 'commit the organization to a position regarding the subject matter of the representation.'” The Court narrowly interpreted the term employees with “authority to commit the organization” to mean those employees “with authority to make decisions about the course of the litigation, such as when to initiate suit, and when to settle a pending case.”
If you are involved in, or anticipate becoming involved in, litigation in Massachusetts, be aware that there is a strong likelihood that opposing counsel will attempt to make ex parte contact with your employees who may have knowledge of the issues. Provided that these employees (1) do not have decision-making authority regarding the course of the litigation (e.g., general counsel or chief executive officer of the corporation), (2) do not exercise managerial responsibility regarding the matter at issue, and (3) are not alleged to have committed the wrongful acts at issue in the litigation, opposing counsel will be within their rights to make such contact without giving you any notice and without the presence of any representative of your company.
Employees should understand that they are under no obligation to speak to opposing counsel. Also, they may be in possession of attorney-client privileged and other confidential information that they are obligated not to disclose to others. In order to protect the legitimate interests of the company and its employees, you may want to consider adopting policies and procedures to provide guidance to employees when they are contacted by opposing counsel.