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Karen A. Whitley
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In our Summer 2002 newsletter, we discussed the trend in the Massachusetts courts and legislature of expanding the circumstances in which attorneys may contact and discuss matters subject to litigation with an opposing party’s employees. At the time, it was still unclear whether the applicable ethical rule prohibited an attorney from contacting former employees of an opponent about a matter being litigated, although at least one Massachusetts professional organization and several courts outside of Massachusetts had determined that such contact was permissible. Recently, however, the Commonwealth’s highest court, the Supreme Judicial Court (“SJC”), addressed the issue and decided, not unexpectedly, that Rule 4.2 of the Massachusetts Rules of Professional Conduct does not prohibit contact with former employees of an opposing party.
The path towards clarifying the scope of Rule 4.2 began with the SJC’s decision in Messing, Rudavsky & Welicky, P.C. v. President & Fellows of Harvard College,436 Mass. 347 (2002), where the Court held that Rule 4.2 banned 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.” The holding of the case was limited to current employees. The Massachusetts legislature quickly amended the explanatory comments to Rule 4.2 to comport with the decision in Messing.
In November 2002, the SJC decided in Patriarca v. Center for Living & Working, Inc., 437 Mass. 1303 (2002), that where former employees were not represented by corporate counsel, were not alleged to have committed the wrongful acts alleged in the litigation, and did not have the authority to bind the organization in matters concerning the litigation, they could be interviewed about the pending litigation without opposing counsel present. The court in Patriarca specifically reserved the question whether Rule 4.2 actually permits contact with all categories of former employees because deciding that broader issue was not necessary under the circumstances of that case.
Less than one year later, the appropriate case presented itself to the court. On October 29, 2003, the SJC decided in Clark v. Beverly Health and Rehab. Servs., Inc. that Rule 4.2 does not apply to former employees. Thus, counsel may interview a former employee outside the presence of the opposing party’s attorney and without a court order, even if the former employee was directly involved in the matter being litigated during his or her employment.
In Messing, Patriarca and Clark the SJC noted that the purpose of Rule 4.2 is “to protect the attorney-client relationship and prevent clients from making ill-advised statements without counsel of their attorney.” On the other hand, in each of the three cases, the Court confirmed that organizations cannot rely on Rule 4.2 to prevent the disclosure of facts that might be adverse or prejudicial merely because a witness was a current or former employee. An employer’s interest in preventing disclosure of potentially damaging information is not a valid basis for preventing communications between counsel and an opponent’s employee. Rather, the overriding interest is in ensuring that pretrial discovery, including what the Court characterized as the “exceptionally efficient” means of conducting informal interviews, must occur without undue monitoring or oversight by employers.
Although it is now clear that former employees are fair game, the SJC emphasized in both Clark and Patriarca that there are other established rules, statutes, and standards that govern counsel’s contact with former employees who are not represented. For example, attorneys must be diligent not to probe for confidential or privileged information, must be truthful to third parties and unrepresented individuals, and must refrain from using unfair or illegal tactics to gain information.
The decision in Clark confirms the importance of educating employees who possess confidential information or who participate in privileged discussions that information shared in those contexts must remain confidential and privileged. Employers should also confirm with departing employees whether an attorney-client relationship will continue with the company’s counsel even after the separation from employment because the pronouncements in Clark do not apply where the former employee is actually still represented by the employer’s counsel. Finally, employers should remain diligent in conducting their own informal discovery to counteract surprise testimony gleaned by opposing counsel through interviews with former employees, and, where appropriate, should alert the Court to situations where narrowly-tailored protective orders are the only means of protecting the employer’s legitimate interests.
