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Law School Case Brief

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

Rule:

Mass. Supp. Jud. Ct. R. 3:07, R. Prof. Conduct 4.2 and its predecessor rule bans contact only with those employees who have the authority to commit an organization to a position regarding the subject matter of representation. The employees with whom contact is prohibited are those with speaking authority for the corporation who 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 about the course of the litigation, such as when to initiate suit, and when to settle a pending case.

Facts:

Plaintiff law firm had filed a discrimination complaint against the president and fellows of Harvard University on behalf of its client, a sergeant with the university police department. Following the institution of the suit, the law firm communicated ex parte with five employees of the university police department. The university filed a motion for sanctions against the law firm. The trial court held that all five employees interviewed by the law firm were covered by the rule because the trial court interpreted the rule to prohibit communication with any employee whose statements could be used as admissions against the university. The law firm was sanctioned for the firm's violations. The firm appealed.

Issue:

Was plaintiff law firm properly sanctioned for contacting and interviewing five employees of the defendant university?

Answer:

No

Conclusion:

The state supreme court concluded the rule of professional conduct did not prohibit the law firm from contacting and interviewing the five employees, vacated the order of the trial court, and remanded the case for the entry of an order denying the university's motion for sanctions. The supreme court interpreted the rule to ban contact only with those employees who had the authority to commit the organization to a position regarding the subject matter of representation. The employees with whom contact was prohibited were those with speaking authority for the corporation who had managing authority sufficient to give them the right to speak for, and bind, the corporation. The university employees were not employees whose act or omission in connection with the matter could be imputed to the organization for purposes of civil liability.`

 

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