Messing, Rudavsky & Weliky, P.C. v. President and Fellows of Harvard College
Massachusetts Supreme Judicial Court
764 N.E.2d 825 (2002)
The law firm Messing, Rudavsky & Weliky (plaintiff) filed a discrimination and retaliation complaint on behalf of a Harvard University Police Department (HUPD) sergeant against Harvard (defendant) and the HUPD police chief. During its investigation, Messing had ex parte contact with five HUPD employees who were not involved in the alleged discrimination. Harvard moved for sanctions, and the Commission found the contact violated Rule 4.2 of the Massachusetts Rules of Professional Conduct but didn't impose sanctions. After the case moved to superior court, that court found a Rule 4.2 violation, sanctioned Messing, barred use of the information gathered, and awarded Harvard attorneys' fees.
Whether, in Massachusetts, an attorney is prohibited from ex parte contact only with those employees of an adversary organization who have the speaking authority to bind the organization to a position regarding the subject matter of the representation.