Messing Rudavsky v President & Fellows Harvard
| Decision Date | 19 March 2002 |
| Docket Number | SJC-08592 |
| Citation | 436 Mass. 347 |
| Parties | MESSING, RUDAVSKY & WELIKY, P.C. vs. PRESIDENT AND FELLOWS OF HARVARD COLLEGE. Docket No.:MASSACHUSETTS SUPREME COURT County: Suffolk |
| Court | United States State Supreme Judicial Court of Massachusetts Supreme Court |
Summary: Supreme Judicial Court, Superintendence of inferior courts, Practice of law. Attorney at Law, Attorney-client relationship, Canons of ethics, Communication with organization represented by counsel.
Civil action commenced in the Supreme Judicial Court for the county of Suffolk on May 17, 2001.
The case was reported by Spina, J.
Wendy H. Sibbison for the plaintiff.
David C. Casey (Scott Moriarty with him) for the defendant.
The following submitted briefs for amici curiae:
John Leubsdorf, of New York, for Teachers of Professional Responsibility.
Jonathan J. Margolis & Paula A. Brantner for National Employment Lawyers Association.
Mary T. Sullivan & Donald J. Siegel for AFL-CIO & others.
Elaine R. Jones, Theodore M. Shaw, Norman J. Chachkin, James L. Cott & Robert H. Stroup for NAACP Legal Defense & Educational Fund, Inc., & others.
William C. Newman & Sarah R. Wunsch for American Civil Liberties Union of Massachusetts.
Luz Arevalo, Monica Halas, Carol R. Mallory, Allan G. Rodgers & Ernest Winsor for Greater Boston Legal Services & another.
Arthur G. Telegen, Jennifer W. Corinis, Richard Alfred, Seyfarth Shaw & Cynthia Amara for Boston Area Management Attorneys Group & another.
Thomas F. Reilly, Attorney General, Laura Maslow-Armand, Pamela L. Hunt & Hilary Weinert Hershman, Assistant Attorneys General, for the Attorney General.
Present: Greaney, Ireland, Spina, Cowin, Sosman, & Cordy, JJ.
The law firm of Messing, Rudavsky & Weliky, P.C.1 (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). Both versions of the rule prohibit attorneys from communicating with a represented party in the absence of that party's attorney. 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.2 A judge in the Superior Court interpreted the rule to prohibit communication with any employee whose statements could be used as admissions against the organization pursuant to Fed. R. Evid. 801 (d) (2) (D), and sanctioned MR&W for its ethical breach. We vacate the order and remand for entry of an order denying the motion for sanctions.
On appeal, MR&W contends that the judge's construction of the rule is overly broad and results from an incorrect interpretation of the rule's commentary. In addition, MR&W contends that the judge lacked authority to issue sanctions for ethical violations, and that even if he had such authority, the attorney's fees sanction imposed by the judge constituted an abuse of discretion. Because we vacate the Superior Court judge's order on the basis that his interpretation of rule 4.2 and DR 7-104 (A)(1) was overly broad, we need not address MR&W's other contentions.
1. Facts and procedural history. From the stipulated facts, we distill the following. 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 represented Stanford, and Harvard was represented before the commission by in-house counsel, and thereafter by a Boston law firm. Following the institution of the suit, MR&W communicated ex parte with five employees of the HUPD: two lieutenants, two patrol officers, and a dispatcher. Although the two lieutenants had some supervisory authority over Stanford, it was not claimed that any of the five employees were involved in the alleged discrimination or retaliation against her or exercised management authority with respect to the alleged discriminatory or retaliatory acts.
In response to a motion by Harvard, the commission ruled that MR&W's ex parte contacts with all five employees violated rule 4.2, but declined to issue sanctions for these violations. MR&W removed the case to the Superior Court, where Harvard filed a motion seeking sanctions for the same violations of rule 4.2 on which the commission had previously ruled. The Superior Court judge then issued a memorandum of decision and order holding that MR&W violated the rule with respect to all five employees, prohibiting MR&W from using the affidavits it had procured during the interviews, and awarding Harvard the attorney's fees and costs it had expended in litigating the motion, in a later order calculated as $94,418.14.3
MR&W and Stanford appealed both orders to a single justice of the Appeals Court pursuant to G. L. c. 231, § 118, first par. The single justice denied the petition and declined to report the matter to the full bench of the Appeals Court. MR&W filed a complaint with the single justice of this court pursuant to G. L. c. 211, § 3, who reserved and reported the matter to the full court.
2. Jurisdiction. As a threshold matter, Harvard asserts that MR&W is not entitled to relief under G. L. c. 211, § 3. General Laws c. 211, § 3, provides: "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...." G. L. c. 211, § 3. This power of review is discretionary with the court and will be "exercised only in 'the most exceptional circumstances.'" Planned Parenthood League of Mass., Inc. v. Operation Rescue, 406 Mass. 701, 706 (1990), quoting Costarelli v. Commonwealth, 374 Mass. 677, 679 (1978).
Generally, parties seeking review under G. L. c. 211, § 3, must demonstrate both a violation of their substantive rights and the unavailability of adequate relief through the ordinary appellate process. Id. Although Harvard asserts that MR&W has failed to demonstrate either of these requirements,4 G. L. c. 211, § 3, grants us "general superintendence of the administration of all courts of inferior jurisdiction." This provision permits us to proceed on the merits where a party raises "an important issue with implications for the administration of justice, and one that is not likely to be presented in the ordinary course of litigation." Bradford v. Knights, 427 Mass. 748, 750 (1998). Because the language of the rule leaves open "just which employees of an entity are or are not out of bounds," Wilkins, The New Massachusetts Rules of Professional Conduct: An Overview, 82 Mass. L. Rev. 261, 265 (1997), little guidance currently exists for lawyers as to what contact is appropriate. Our resolution of the issue will have widespread implications for attorneys throughout the Commonwealth. Further, the issue may not be presented in the ordinary course of litigation. Given the Superior Court's decision, attorneys, apprehensive about crossing ethical boundaries, may refrain from contacting employees of a represented organization. Therefore, we resolve the merits of MR&W's claim.
3. Interpretation of Rule 4.2 of the Massachusetts Rules of Professional Responsibility.
a. An overview. Disciplinary Rule 7-104 (A) (1) provides:
As of January 1, 1998, DR 7-104 (A) (1) was superseded by rule 4.2. Massachusetts, like most States, adopted this rule verbatim from the American Bar Association (ABA) Model Rules of Professional Conduct. Rule 4.2 provides:
"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."
The rule has been justified generally as "preserv[ing] the mediating role of counsel on behalf of their clients... protect[ing] clients from overreaching by counsel for adverse interests," Pratt v. National R.R. Passenger Corp., 54 F. Supp. 2d 78, 79 (D. Mass. 1999), and "protecting the attorney-client relationship." In re Air Crash Disaster near Roselawn Ind., 909 F. Supp. 1116, 1121 (N.D. Ill. 1995). See Orlowski v. Dominick's Finer Foods, Inc., 937 F. Supp. 723, 727 (N.D. Ill. 1996); Brown v. St. Joseph County, 148 F.R.D. 246, 249 (N.D. Ind. 1993); Wright v. Group Health Hosp., 103 Wash. 2d 192, 196 (1984).
Neither version of the rule explicitly addresses 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.
Because an organization acts only through its employees, the rule must extend to some of these employees. However, most courts have rejected the position that the rule automatically prevents an attorney from speaking with all employees of a represented organization. See Terra Int'l, Inc. v. Mississippi Chem. Corp., 913 F. Supp. 1306, 1320 (N.D. Iowa 1996) (); Shearson Lehman Bros. v. Wasatch Bank, 139 F.R.D. 412, 416 (D. Utah 1991); State v. CIBA-GEIGY, 247 N.J. Super. 314, 323-324 (199...
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