## Facts

- Ellen L. Patriarca sued her former employer, a nonprofit organization, alleging wrongful termination from her registered nurse position supervising a personal care attendant program.
- During discovery, Patriarca disclosed that she had contacted four former employees and discussed events from their time working at the organization.
- The employer sought a protective order, asserting that further ex parte communications with former (and any future) employees by Patriarca’s counsel would violate Mass. R. Prof. C. 4.2.
- A Superior Court judge issued a protective order barring Patriarca’s counsel from ex parte contact with former or future employees about matters concerning their employment or the litigation unless opposing counsel consented or the court granted leave.
- Patriarca obtained interlocutory review, and the Supreme Judicial Court took direct appellate review of the protective order.

## Issues

1. Whether Mass. R. Prof. C. 4.2 barred plaintiff’s counsel from ex parte communications with the organization’s former employees about the litigation, justifying the protective order.
2. Whether the contacted former employees fell within the category of organizational employees covered by Rule 4.2 as construed in Messing.

## Decision

- The Supreme Judicial Court vacated the protective order and remanded for further proceedings.
- The court concluded the former employees at issue were not shown to be represented in the matter and were not the type of employees whose acts or statements would be attributed to the organization under Rule 4.2 as construed in Messing.
- The court declined to decide, as a general matter, whether Rule 4.2 applies to former employees in other circumstances because the former employees here would not have been covered even if still employed.

## Legal Principles

- Rule 4.2 applies only to communications with a person the lawyer knows is represented by counsel in the matter; absent evidence of such representation, the rule does not bar contact on that basis.
- For organizational parties, Rule 4.2 (as construed in Messing) restricts ex parte contact only with employees whose acts or omissions in connection with the matter may be imputed to the organization, or whose statements may qualify as organizational admissions.
- A protective order restricting counsel’s communications must be supported by the scope of Rule 4.2 as applied to the individuals at issue; an order sweeping in all former (and future) employees is improper where the record does not place them within the rule.

## Conclusion

The court vacated an overbroad protective order because the former employees contacted by the plaintiff were not shown to be represented in the litigation and did not fall within the limited class of organizational employees covered by Rule 4.2 under Messing, while reserving the broader question of Rule 4.2’s application to former employees generally.


Patriarca v. Ctr. for Living & Working, Inc., 438 Mass. 132, 778 N.E.2d 877 (2002)