Stanford claims that she was denied advancement in the Harvard University Police Department (HUPD) on the basis of gender. After she filed her complaint with the Massachusetts Commission Against Discrimination, her counsel contacted five current employees of the HUPD, including two lieutenants who had supervised her. The MCAD ruled that counsel violated the Massachusetts Rules of Professional Conduct when he contacted the employees. The case was later brought in Superior Court and the HUPD moved for sanctions. The ethical rules proscribe ex parte contact with three categories of employees: "[1] persons having managerial responsibility on behalf of the organization with regard to the subject matter of the representation… [2] any other person whose act or omission in connection with that matter may be imputed to the organization for purposes of civil or criminal liability… [3] or any person whose statement may constitute an admission on the part of the organization." Stanford contended that these rules should be interpreted narrowly to permit ex parte contact with all current employees except those in the "control group" and those whose acts or omissions are directly challenged. She argued that such an interpretation is necessary to vindicate the discrimination laws and to facilitate counsel’s compliance with Rule 11 of the Massachusetts Rules of Civil Procedure and its federal counterpart.
NELF filed an amicus brief in Superior Court, arguing that the plain meaning of the rules proscribed the contacts that occurred and that Stanford’s policy arguments had been considered and rejected by the Supreme Judicial Court when it adopted the current rule. The NELF brief also demonstrated that a relaxed interpretation is not necessary to fulfill counsel’s Rule 11 obligations. The Superior Court held that the ex parte contacts were improper. The Court further held that in "an uncertain area of ethical conduct, a prudent attorney would have given notice to opposing counsel of the intent to take such a statement and/or have come to court for permission to do so." The Court prohibited counsel from using the statements and ordered counsel to pay HUPD’s attorneys fees and costs incurred in pursuing the sanctions motion.
NELF filed an amicus brief in Superior Court, arguing that the plain meaning of the rules proscribed the contacts that occurred and that Stanford’s policy arguments had been considered and rejected by the Supreme Judicial Court when it adopted the current rule. The NELF brief also demonstrated that a relaxed interpretation is not necessary to fulfill counsel’s Rule 11 obligations. The Superior Court held that the ex parte contacts were improper. The Court further held that in "an uncertain area of ethical conduct, a prudent attorney would have given notice to opposing counsel of the intent to take such a statement and/or have come to court for permission to do so." The Court prohibited counsel from using the statements and ordered counsel to pay HUPD’s attorneys fees and costs incurred in pursuing the sanctions motion.
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