Messing, Rudavsky & Weliky, P.C. v. President and Fellows of Harvard College

Brief Fact Summary.

The law firm of Messing, Rudavsky & Weliky (Plaintiff) communicated ex parte with employees of Harvard College (Defendant) after initiating a suit against the college, and the trial court then sanctioned Plaintiff for violating a Massachusetts rule that prohibits an attorney from speaking ex parte to employees of an organization when it is an adversary litigant

Synopsis of Rule of Law.

Only when employees of an adversary organization have the authority to commit the organization to a position is an attorney banned from ex parte contact regarding the subject matter of the case.

Facts.

On behalf of a female sergeant with the Harvard University Police Department (HUPD), the law firm of Messing, Rudavsky & Weliky (Plaintiff) filed an employment discrimination complaint against Harvard College (Defendant).  Following the start of the suit, Plaintiff, when further investigating its client’s case, communicated exparte with five employees of the HUPD.  None of the five employees were claimed to be involved in the alleged discrimination or having exercised management authority regarding the alleged discriminatory acts.  The trial court granted Defendant’s motion to sanctioned Plaintiff for violating a Massachusetts rule, adopted from the American Bar Association’s Model Rules of Professional Conduct, that basically prohibits an attorney from speaking ex parte to employees of an adversary organization when it is an adversary litigant.  Plaintiff appealed.

Issue.

When employees of an adversary organization have the authority to commit the organization to a position, is an attorney banned from ex parte contact regarding the subject matter of the case?

Held.

(Cowin, J.)  Yes.  When employees of an adversary organization have the authority to commit the organization to a position, an attorney is banned from ex parte contact regarding the subject matter of the case.  Contact is prohibited with employees who have “speaking authority†for the corporation and have managing authority sufficient to give them the right to speak for, and bind, the corporation.  Employees who can commit the organization are those with authority to make decisions regarding the direction of the litigation, such as the timing of initiating suit and settling a pending case.  The court recognizes that this test is a retrenchment from the broad prohibition on employee contact endorsed by the Massachusetts Rule of Professional Conduct, which prohibits attorneys from communicating with a represented party when that party’s attorney is not present.  We reject the lower court’s interpretation of this rule in such manner that it would prohibit communications with any employee whose statements could be used as admissions against the organization pursuant to Fed. R. Evid. 801(d)(2)(D).  Our test is consistent with the purposes of the rule, which are not to protect a corporate party from the revelation of prejudicial facts, but to protect the attorney-client relationship and prevent clients from making ill-advised statements without the counsel of their attorney.  Prohibiting contact with all employees of a represented organization restricts informal contacts much more than is necessary to achieve these purposes.  The test we adopt here protects an organizational party against improper advances and influence by an attorney, while still promoting access to relevant facts.  Although our interpretation of the rule may reduce the protection available to organizations provided by the attorney-client privilege, it allows a litigant to get more meaningful disclosure of the truth by conducting informal interviews with certain employees of an opposing organization.  Reversed.

Dissent.

(Cordy, J.)  Two of the employees of Harvard (Defendant) had some supervisory responsibility, therefore their comments to the adverse attorneys regarded matters within the course and scope of their employment.  Accordingly, the ethics rule was violated by ex parte contact with them by opposing counsel.

Discussion.

As the court observed in Messing, the more restrictive interpretation of the ethics rule would grant an advantage to corporate litigants over nonorganizational parties by requiring an opposing party to always seek prior judicial approval to conduct informal interviews with witnesses to an event when the opposing party happens to be an organization and the events at issue happened at the workplace.