No. The court decided that the lawyers did not break the rules. A rule that stops lawyers from talking to *any* employee whose words might hurt the company is too strict and unfair. The court said it's okay for lawyers to talk to regular employees who were just witnesses. The only employees a lawyer can't talk to without permission are: 1) managers who were in charge of the situation being sued over, 2) the specific people accused of causing the problem, or 3) high-level executives who can make legal decisions for the company, like settling the case.

Yes. This judge disagreed, saying the rule was written to protect companies from having their employees tricked by the other side's lawyers. He argued that if an employee's statement can be used in court as if the company itself said it, then that employee should have the company's lawyer there to protect them. He felt the court was changing the rule to something it wasn't meant to be, putting companies at a big disadvantage. However, he did agree that the law firm shouldn't be fined because the rule was very confusing before this case.

Yes, it's okay for lawyers to talk to most employees of a company being sued without asking the company's lawyers first. We think the rule should only stop lawyers from talking to employees who are in charge of the case, who are accused of doing something wrong, or who can make big decisions about the lawsuit for the company. This is fair because it lets lawyers find out important information, but still protects the company when it really matters. We don't think it's right to stop lawyers from talking to any employee who might say something that could be used against the company in court. That would make it too hard for lawyers to find out what really happened. The rule is supposed to protect the relationship between lawyers and their clients, not to hide important facts. We're canceling the punishment against MR&W because the Harvard employees they talked to weren't the kind of employees that the rule is supposed to protect.

I agree that MR&W shouldn't have to pay the money, but I don't agree with everything the other judges said about the rule. I think when we made this rule in 1998, we meant to stop lawyers from talking to any employee who might say something that could be used against the company in court. This helps make sure companies get the same kind of legal help as individual people. But I think we could make the rule work better by saying it only applies when employees are talking about their job and what they say could be used against the company in this specific case. I think it was okay for MR&W to talk to the police officers and dispatcher, but not okay to talk to the lieutenants because they were in charge of the person suing Harvard.

No. The rule does not prohibit ex parte communication with all employees whose statements might be admissible against their employer. The court rejects an interpretation of Rule 4.2 that would prohibit contact with any employee whose statement could be a vicarious admission under evidence rules, finding it 'overly protective of the organization and too restrictive.' Instead, the court adopts a narrower test that balances the need for informal fact-gathering with the protection of the attorney-client relationship. The court held that the rule bans ex parte contact only with three categories of employees: 1) those with managerial responsibility regarding the subject of the representation; 2) those whose act or omission may be imputed to the organization for liability purposes; and 3) those with the authority to 'commit the organization to a position' or make decisions about the litigation, such as settling the case. Applying this test, the court found that none of the five employees interviewed by MR&W fell into these protected categories, as they were merely witnesses to the events, not participants in the alleged wrongdoing or decision-makers for Harvard.

Yes. The rule's commentary, which this court adopted, was intended to prohibit ex parte contact with any employee whose statement could constitute a vicarious admission against the organization. The dissent argues that the majority is ignoring the plain language and intent of the rule it adopted, which was to align the ethical no-contact rule with the evidentiary rule on admissions to ensure effective representation for organizations. The dissent criticizes the majority's adoption of the 'Niesig' test from New York, noting that New York has a much narrower evidentiary rule for employee admissions, making the test a poor fit for Massachusetts jurisprudence. By deviating from the rule's comment, the majority's decision creates a 'distinct disadvantage to the organizational parties.' However, the dissent concurs that the financial sanctions against the law firm should be vacated because the law was unclear at the time of the communications.

No. The majority opinion, authored by Justice Cowin, held that Rule 4.2 does not prohibit contact with all employees of a represented organization. We adopt a test that 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. This interpretation balances the need to protect the attorney-client relationship with allowing attorneys to gather facts necessary for litigation. We reject the broad interpretation that would prohibit contact with any employee whose statement could be admissible as a vicarious admission under the rules of evidence. Such an interpretation would be overly protective of organizations and too restrictive of an opposing attorney's ability to gather information. Our interpretation is consistent with the purposes of the rule, which are to protect the attorney-client relationship and prevent clients from making ill-advised statements without the counsel of their attorney, not to shield organizations from the revelation of prejudicial facts. We vacate the order of sanctions against MR&W because the five Harvard employees interviewed do not fall within the categories of employees with whom contact is prohibited under our interpretation of Rule 4.2.

Justice Cordy concurred in part and dissented in part. He agreed that the financial sanctions against MR&W should be set aside, but disagreed with the majority's interpretation of Rule 4.2. Cordy argued that the rule as adopted in 1998 was intended to prohibit contact with employees whose statements could constitute admissions by the organization, consistent with Massachusetts' broad rule on vicarious admissions. He contended that this interpretation ensures organizations are as effectively represented by counsel as individuals. Cordy suggested that the rule could be limited by clarifying that it only applies to communications about matters within the scope of employment that would be admissible as vicarious admissions in the particular controversy at issue. He would have found the communications with the patrol officers and dispatcher permissible, but viewed the communications with the lieutenants as problematic due to their supervisory authority over Stanford.

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

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