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A national debate over whether lawyers suing an employer should be able to conduct ex parte interviews with employees of a corporate defendant has triggered real-life consequences in a Massachusetts gender-discrimination suit. In a ruling on March 20, Superior Court Justice John C. Cratsley ordered Boston’s Messing & Rudavsky to pay Harvard University $94,718, the amount in legal fees it ostensibly took the defending party to assert its motion for sanctions. The chief ethics charge stems from the law firm’s attempt to use “informal” discovery four years ago to prove before an administrative judge that its client, Kathleen Stanford, had been illegally passed over for promotions in Harvard University’s police department. The case, Stanford v. President and Fellows of Harvard College, No. 99-4042, is still pending. Dahlia C. Rudavsky and Ellen Messing admit that their firm communicated ex parte with three of the plaintiff’s Harvard co-workers and two supervisors sometime during 1997. But their firm denies that it knew doing so would be construed as violating the state’s ethics rules years later and after the case had been removed to Judge Cratsley’s courtroom. “Unprecedented and unwarranted,” says Rudavsky of the sanctions against her firm. An appeal has been filed. No one disputes that Rule 4.2 of the Massachusetts Rules of Professional Conduct, adopted in January 1998 and designed to protect the attorney-client privilege, generally bars a lawyer involved in a case from communicating with the opposing party without permission from the other side or the presiding judge. What is in dispute, both in this case and in similar cases elsewhere, is how to apply the rule to corporate employees. The American Bar Association’s Model Rule 4.2, from which the Massachusetts rule is derived, contains a comment which suggests that the ban on ex parte contact is limited to managers and other current employees whose statements could be imputed to the organization or deemed admissions by the organization, explains Professor Steven Lubet of the Northwestern University School of Law. But Judge Cratsley, in his ruling, essentially said that lawyers can’t talk ex parte to any current employee for the opposing side because any comments made by the employee could invariably be construed as an admission by the employer at trial. David C. Casey, a partner at Boston’s Bingham Dana, who asked that the sanctions be imposed, says Cratsley’s view of Rule 4.2 is in line with the few Massachusetts rulings applying it to date. But Messing says that this “all inclusive” interpretation is simply “inconsistent” with what the original authors of Rule 4.2 had intended. In November, for instance, she says, the ABA Ethics 2000 Commission proposed altering its comments to the rule by removing the ban on ex parte communications with employees whose statements the courts could deem admissions by the employer. The commission, she adds, also proposed to make the comment less inclusive by having it specifically refer to a person “who supervises, directs or regularly consults” with the organization’s lawyer on the dispute at hand. Fundamental fairness was also at stake in Stanford, argues Rudavsky. She says that the presence of a company lawyer would have been “intimidating” to the five employees her firm interviewed ex parte. But Casey says Rudavsky and Messing are like many plaintiffs’ lawyers around the country who have been “purposely pushing the envelope” in just these kinds of Rule 4.2 disputes. Before Judge Cratsley, he says, the sanctioned lawyers unnecessarily submitted “hundreds of pages of amicus briefs,” including a brief authored by the Washington, D.C.-based Lawyers Committee for Civil Rights Under the Law. “This particular judge merely held them to account … for making this a cause c�l�bre,” says Casey. “Had they simply told the judge, ‘mea culpa,’ there would have been no $94,000″ sanction.

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