Limiting the Ability of Opposing Counsel to Contact Present Employees
This case involves the scope of ethical Rule 4.2, which governs when and under what circumstances an attorney may contact an employee of an adversary ex parte when the organization is represented by counsel. NELF filed an amicus brief jointly with Boston Area Management Attorneys Group arguing that the organization’s counsel should be notified in all instances. However, the Supreme Judicial Court recently that the rule bans contact only with those current employees who exercise managerial responsibility in the matter under litigation, those who are alleged to have committed the wrongful acts at issue in the litigation, or those who have the authority on behalf of the organization to make decisions about the course of the litigation. In his dissent from that decision, Justice Cordy expressed concern that the majority opinion “creates a troubling inconsistency in the way we treat organizations in our adversary system.”
This case involves the scope of ethical Rule 4.2, which governs when and under what circumstances an attorney may contact an employee of an adversary ex parte when the organization is represented by counsel. NELF filed an amicus brief jointly with Boston Area Management Attorneys Group arguing that the organization’s counsel should be notified in all instances. However, the Supreme Judicial Court recently that the rule bans contact only with those current employees who exercise managerial responsibility in the matter under litigation, those who are alleged to have committed the wrongful acts at issue in the litigation, or those who have the authority on behalf of the organization to make decisions about the course of the litigation. In his dissent from that decision, Justice Cordy expressed concern that the majority opinion “creates a troubling inconsistency in the way we treat organizations in our adversary system.”
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