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litigationattorneylawyerappealmotiondiscrimination
defendantlitigationattorneyappealmotiondiscrimination

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Messing, Rudavsky & Weliky, P.C. v. President and Fellows of Harvard College, 436 Mass. 347, 764 N.E.2d 825

Facts

In August 1997, the law firm Messing, Rudavsky & Weliky, P.C. (MR & W) filed a complaint against Harvard University on behalf of Kathleen Stanford, a sergeant in the university's police department, alleging gender discrimination and retaliation. Following the filing, MR & W communicated ex parte with five employees of the Harvard University Police Department, including two lieutenants and two patrol officers. The Massachusetts Commission Against Discrimination found these contacts violated professional conduct rules but did not impose sanctions. Harvard then sought sanctions in the Superior Court, which ruled against MR & W, leading to the appeal.

In August of 1997, MR & W filed a complaint against President and Fellows of Harvard College (Harvard) with the Massachusetts Commission Against Discrimination (commission) on behalf of its client, Kathleen Stanford. Stanford, a sergeant with the Harvard University police department (HUPD), alleged that Harvard and its police chief, Francis Riley, discriminated against her on the basis of gender and in reprisal for earlier complaints of discrimination. MR & W communicated ex parte with five employees of the HUPD: two lieutenants, two patrol officers, and a dispatcher.

Issue

Whether the law firm's ex parte communications with employees of Harvard University violated the Massachusetts Rules of Professional Conduct, specifically Rule 4.2.

This appeal raises the issue whether, and to what extent, the rule prohibits an attorney from speaking ex parte to the employees of an organization represented by counsel.

Rule

Rule 4.2 prohibits attorneys from communicating about the subject of representation with a person known to be represented by another lawyer in the matter, unless consent is obtained or authorized by law. The rule extends to certain employees of an organization, specifically those with managerial responsibility regarding the subject of the representation.

Both versions of the rule prohibit attorneys from communicating with a represented party in the absence of that party's attorney.

Analysis

The Supreme Judicial Court analyzed the application of Rule 4.2 to the law firm's communications with the five Harvard employees. The court determined that the employees did not fall within the categories of individuals whose statements could bind the organization or who had managerial responsibility regarding the subject matter of the litigation. Therefore, the court concluded that the law firm's contacts did not violate the rule, as the employees were not involved in the alleged discriminatory actions.

The five Harvard employees interviewed by MR & W do not fall within the third category of the comment as we have construed it. As employees of the HUPD, they are not involved in directing the litigation at bar or authorizing the organization to make binding admissions.

Conclusion

The Supreme Judicial Court vacated the sanctions imposed by the Superior Court and remanded the case for the entry of an order denying Harvard's motion for sanctions.

Because we conclude that rule 4.2 did not prohibit MR & W from contacting and interviewing the five HUPD employees, we vacate the order of the Superior Court judge and remand the case for the entry of an order denying the defendant's motion for sanctions.

Who won?

Messing, Rudavsky & Weliky, P.C. prevailed because the Supreme Judicial Court found that their communications did not violate the professional conduct rules, thus overturning the sanctions imposed by the lower court.

The law firm of Messing, Rudavsky & Weliky, P.C. (MR & W), appeals from an order of the Superior Court sanctioning the firm for violations of Mass.R.Prof.C. 4.2, 426 Mass. 1402 (1998), and its predecessor, S.J.C. Rule 3:07, Canon 7, DR 7–104(A)(1), as appearing in 382 Mass. 786 (1981).

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