## Facts

- A law firm represented a Harvard University Police Department (HUPD) sergeant asserting gender discrimination and retaliation claims against Harvard and the HUPD chief.
- During the litigation, the firm conducted ex parte interviews of five HUPD employees: two lieutenants, two patrol officers, and a dispatcher.
- None of the interviewed employees were alleged to have committed the discriminatory acts or to have exercised management authority over those acts.
- Harvard sought sanctions, arguing the interviews violated Massachusetts Rule of Professional Conduct 4.2 (and its predecessor), which restricts communications with a represented party without that party’s counsel.
- The trial court adopted a broad approach, treating Rule 4.2 as barring contact with any employee whose statements could be used against the organization as admissions, and sanctioned the firm (including attorney’s fees).
- The firm appealed the sanctions order.

## Issues

1. Whether Rule 4.2 bars ex parte communications with any employee of a represented organization whose statements could be admissible against the organization as an evidentiary admission.
2. What category of organizational employees, if any, are covered by Rule 4.2’s no-contact restriction.
3. Whether the ex parte interviews at issue warranted sanctions.

## Decision

- The Supreme Judicial Court vacated the sanctions order and remanded for entry of an order denying Harvard’s motion for sanctions.
- The court rejected the trial court’s evidentiary-admissions test as overbroad for Rule 4.2 purposes.
- The court held that Rule 4.2 prohibits ex parte contact only with employees who have authority to commit the organization to a position on the subject matter of the representation.
- Because the interviewed HUPD employees lacked such authority, the firm did not violate Rule 4.2.

## Legal Principles

- In the organizational setting, Rule 4.2 applies to employees with “speaking” or comparable managerial authority sufficient to speak for and bind the organization on the matter in dispute.
- Rule 4.2 does not extend to all employees whose statements might qualify as organizational admissions under evidentiary rules.
- The no-contact rule protects the lawyer-client relationship and guards against overreaching toward decision-makers who can bind the organization, but it is not a device to prevent access to relevant facts through informal witness interviews.
- Sanctions for purported Rule 4.2 violations require a showing that the contacted employees fell within the rule’s protected category.

## Conclusion

The Supreme Judicial Court limited Rule 4.2’s organizational no-contact restriction to employees who can bind the organization regarding the subject matter of the representation, and it vacated sanctions imposed for ex parte interviews of non-binding employees.


Messing, Rudavsky & Weliky, P.C. v. President & Fellows of Harvard Coll., 436 Mass. 347, 764 N.E.2d 825 (2002)