In this case the Massachusetts Supreme Judicial Court took direct appellate review of an interlocutory appeal from the Superior Court’s issuance of a protective order barring plaintiff’s counsel from having any ex parte contact with former employees of the defendant. The trial court based its order on Rule 4.2 of the Massachusetts Rules of Professional Conduct, which prohibits an attorney from having unauthorized ex parte communications with a party represented by counsel. The plaintiff Ellen Patriarca was a registered nurse who worked for the Center for Living and Working, Inc. (“CLW”) and was terminated in 1998. She sued for wrongful discharge and for breach of contract. Plaintiff's counsel then conducted ex parte interviews with four former employees of CLW. CLW’s counsel obtained a protective order to prevent further ex parte contact with its former employees. Two of the former employees were occupational therapists, a third was an assistant community department manager-supervisor, and the fourth had been a business manager who witnessed the events leading to plaintiff’s termination. Plaintiff appealed. CLW argued that Rule 4.2 should apply to former and current employees alike.
NELF filed an amicus brief supporting CLW’s interpretation of Rule 4.2. Pending appeal, the SJC issued its landmark decision in Messing, Rudavsky & Weliky, P.C. v. President and Fellows of Harvard College. In that case, the SJC held that Rule 4.2 applies only to 3 categories of employees: (1) those who exercise managerial responsibility in the matter, (2) those who are alleged to have committed the wrongful acts at issue, and (3) those who have authority on behalf of the corporation to make decisions about the course of the litigation. The SJC in Patriarca applied its holding in Messing, Rudavsky & Weliky v. Harvard and held that none of the four former employees at issue was covered by Rule 4.2. Accordingly, the Court vacated the trial court’s protective order. The SJC declined to reach the broader issue of whether Rule 4.2 should apply to any former employee, because the Court concluded that the former employees in question would not have fallen under Rule 4.2, even if they had still been employed by CLW.