764 N.E.2d 825 (Mass. 2002)
The law firm of Messing, Rudavsky & Weliky, P.C. (MR&W), appeals from an order of the Superior Court sanctioning the firm for violations of Mass. R. Prof. C. 4.2, 426 Mass. 1402 (1998), and its predecessor, S.J.C. Rule 3:07, Canon 7, DR 7-104 (A) (1), as appearing in 382 Mass. 786 (1981). Both versions of the rule prohibit attorneys from communicating with a represented party in the absence of that party’s attorney. This appeal raises the issue whether, and to what extent, the rule prohibits an attorney from speaking ex parte to the employees of an organization represented by counsel. A judge in the Superior Court interpreted the rule to prohibit communication with any employee whose statements could be used as admissions against the organization pursuant to Fed. R. Evid. 801 (d) (2) (D), and sanctioned MR&W for its ethical breach. We vacate the order and remand for entry of an order denying the motion for sanctions.
On appeal, MR&W contends that the judge’s construction of the rule is overly broad and results from an incorrect interpretation of the rule’s commentary. In addition, MR&W contends that the judge lacked authority to issue sanctions for ethical violations, and that even if he had such authority, the attorney’s fees sanction imposed by the judge constituted an abuse of discretion. Because we vacate the Superior Court judge’s order on the basis that his interpretation of rule 4.2 and DR 7-104 (A) (1) was overly broad, we need not address MR&W’s other contentions.
In response to a motion by Harvard, the commission ruled that MR&W’s ex parte contacts with all five employees violated rule 4.2, but declined to issue sanctions for these violations. MR&W removed the case to the Superior Court, where Harvard filed a motion seeking sanctions for the same violations of rule 4.2 on which the commission had previously ruled. The Superior Court judge then issued a memorandum of decision and order holding that MR&W violated the rule with respect to all five employees, prohibiting MR&W from using the affidavits it had procured during the interviews, and awarding Harvard the attorney’s fees and costs it had expended in litigating the motion, in a later order calculated as $94,418.14.3
MR&W and Stanford appealed both orders to a single justice of the Appeals Court pursuant to G. L. c. 231, § 118, first par. The single justice denied the petition and declined to report the matter to the full bench of the Appeals Court. MR&W filed a complaint with the single justice of this court pursuant to G. L. c. 211, § 3, who reserved and reported the matter to the full court.
Generally, parties seeking review under G. L. c. 211, § 3, must demonstrate both a violation of their substantive rights and the unavailability of adequate relief through the ordinary appellate process. Id. Although Harvard asserts that MR&W has failed to demonstrate either of these requirements,4 G. L. c. 211, § 3, grants us “general superintendence of the administration of all courts of inferior jurisdiction.” This provision permits us to proceed on the merits where a party raises “an important issue with implications for the administration of justice, and one that is not likely to be presented in the ordinary course of litigation.” Bradford v. Knights, 427 Mass. 748, 750 (1998). Because the language of the rule leaves open “just which employees of an entity are or are not out of bounds,” Wilkins, The New Massachusetts Rules of Professional Conduct: An Overview, 82 Mass. L. Rev. 261, 265 (1997), little guidance currently exists for lawyers as to what contact is appropriate. Our resolution of the issue will have widespread implications for attorneys throughout the Commonwealth. Further, the issue may not be presented in the ordinary course of litigation. Given the Superior Court’s decision, attorneys, apprehensive about crossing ethical boundaries, may refrain from contacting employees of a represented organization. Therefore, we resolve the merits of MR&W’s claim.
a. An overview. Disciplinary Rule 7-104 (A) (1) provides:
“During the course of his representation of a client a lawyer shall not: . . . Communicate or cause another to communicate on the subject of the representation with a party he knows to be represented by a lawyer in that matter unless he has the prior consent of the lawyer representing such other party or is authorized by law to do so.”
As of January 1, 1998, DR 7-104 (A) (1) was superseded by rule 4.2. Massachusetts, like most States, adopted this rule verbatim from the American Bar Association (ABA) Model Rules of Professional Conduct. Rule 4.2 provides:
“In representing a client, a lawyer shall not communicate about the subject of the representation with a person the lawyer knows to be represented by another lawyer in the matter, unless the lawyer has the consent of the other lawyer or is authorized by law to do so.”
The rule has been justified generally as “preserv[ing] the mediating role of counsel on behalf of their clients . . . protect[ing] clients from overreaching by counsel for adverse interests,” Pratt v. National R.R. Passenger Corp., 54 F. Supp. 2d 78, 79 (D. Mass. 1999), and “protecting the attorney-client relationship.” In re Air Crash Disaster near Roselawn Ind., 909 F. Supp. 1116, 1121 (N.D. Ill. 1995). See Orlowski v. Dominick’s Finer Foods, Inc., 937 F. Supp. 723, 727 (N.D. Ill. 1996); Brown v. St. Joseph County, 148 F.R.D. 246, 249 (N.D. Ind. 1993); Wright v. Group Health Hosp., 103 Wash. 2d 192, 196 (1984).
Neither version of the rule explicitly addresses the scope of the prohibition when the represented person is an organization. When the represented person is an individual, there is no difficulty determining when an attorney has violated the rule; the represented person is easily identifiable. In the case of an organization, however, identifying the protected class is more complicated.
Because an organization acts only through its employees, the rule must extend to some of these employees. However, most courts have rejected the position that the rule automatically prevents an attorney from speaking with all employees of a represented organization. See Terra Int’l, Inc. v. Mississippi Chem. Corp., 913 F. Supp. 1306, 1320 (N.D. Iowa 1996) (noting rule banning ex parte contacts with all current employees has been rejected by courts that have considered it); Shearson Lehman Bros. v. Wasatch Bank, 139 F.R.D. 412, 416 (D. Utah 1991); State v. CIBA-GEIGY, 247 N.J. Super. 314, 323-324 (1991) (noting only one decision had adopted blanket rule prohibiting contact with all former and current employees, and that other cases which had applied that approach were later vacated and withdrawn); Niesig v. Team I, 76 N.Y.2d 363, 371 (1990); Strawser v. Exxon Co. U.S.A., 843 P.2d 613, 619-620 (Wyo. 1992).
Most of MR&W’s contacts with the Harvard employees took place in late 1997, when DR 7-104 (A) (1) was still the operative rule. However, the Superior Court found that MR&W also made “minimal communication” in early 1998, and sanctioned MR&W for violations of both the old and new versions of the rule. Rule 4.2 uses the phrase “person the lawyer knows to be represented,” while DR 7-104 (A) (1) uses the phrase “party [a lawyer] knows to be represented.” By replacing the word “party” with “person,” the drafters of rule 4.2 arguably intended to prohibit contact with a broader class than did DR 7-104 (A) (1). However, both versions of the rule consider an organization to be a “person” or “party,” and thus prohibit ex parte contact with at least some of the organization’s employees. See, e.g., Niesig v. Team I, supra; Mass. R. Prof. C. 9.1 (h), 426 Mass. 1432 (1998) (defining “[p]erson” to include a corporation, association, trust, partnership, and any other organization or legal entity). In the context of contact with the employees of a represented organization, courts have interpreted the two versions of the rule to prohibit the same conduct. See Hurley vs. Modem Cont. Constr. Co., Civil Action No. 94-11373-RBC (D. Mass. Feb. 19, 1999); Johnson v. Cadillac Plastic Group, Inc., 930 F. Supp. 1437, 1440 (D. Colo. 1996); Strawser v. Exxon Co., U.S.A., supra at 617 n.5.5
The comment to rule 4.2 provides guidance in the case of a represented organization. Because both versions of the rule prohibit essentially the same conduct, the comment is instructive (although not controlling) in determining the scope of both the old and new versions of the rule. See Mass. R. Prof. C. Scope [9], 426 Mass. 1305 (1998) (“The Comments are intended as guides to interpretation, but the text of each Rule is authoritative”).
According to comment [4] to rule 4.2, an attorney may not speak ex parte to three categories of employees: (1) “persons having managerial responsibility on behalf of the organization with regard to the subject of the representation”; (2) persons “whose act or omission in connection with that matter may be imputed to the organization for purposes of civil or criminal liability”; and (3) persons “whose statement may constitute an admission on the part of the organization.”6 Mass. R. Prof. C. 4.2 comment [4], 426 Mass. 1403 (1998).
b. The Superior Court judge’s decision. The judge held that all five employees interviewed by MR&W were within the third category of the comment. He reached this result by concluding that the phrase “admission” in the comment refers to statements admissible in court under the admissions exception to the rule against hearsay. The Commonwealth’s version of this rule was defined in Ruszcyk v. Secretary of Pub. Safety, 401 Mass. 418 (1988), where we held that a court may admit a “statement by [the party’s] agent or servant concerning a matter within the scope of [the] agency or employment, made during the existence of the relationship.” Id. at 420, quoting Proposed Mass. R. Evid. 801 (d)(2)(D). This rule is identical to Fed. R. Evid. 801 (d)(2)(D). Because the comment includes any employee whose statement may constitute an admission, this interpretation would prohibit an attorney from contacting any current employees of an organization to discuss any subject within the scope of their employment. This is, as the Superior Court judge admitted, a rule that is “strikingly protective of corporations regarding employee interviews.”7
c. Other interpretations of rule 4.2. Harvard contends that the third category of the comment is an unambiguous reference to the admissions exception to the hearsay rule. However, other jurisdictions that have adopted the same or similar versions of rule 4.2 are divided on whether their own versions of the rule are properly linked to the admissions exception to the hearsay rule, and disagree about the precise scope of the rule as applied to organizations. See, e.g., Orlowski v. Dominick’s Finer Foods, Inc., 937 F. Supp. 723, 728 (1996) (“Courts have debated at length which current corporate employees constitute represented parties . . .”); Niesig v. Team I, 76 N.Y.2d 363, 371 (1990) (“The many courts, bar associations and commentators that have balanced the competing considerations have evolved various tests, each claiming some adherents, each with some imperfection . . .”).
Some jurisdictions have adopted the broad reading of the rule endorsed by the judge in this case. See, e.g., Weibrecht v. Southern Ill. Transfer, Inc., 241 F.3d 875 (7th Cir. 2001); Cole v. Appalachian Power Co., 903 F. Supp. 975 (S.D.W. Va. 1995); Brown v. St. Joseph County, 148 F.R.D. 246, 254 (N.D. Ind. 1993). Courts reaching this result do so because, like the Superior Court, they read the word “admission” in the third category of the comment as a reference to Fed. R. Evid. 801 (d)(2)(D) and any corresponding State rule of evidence. Id.
This rule forbids contact with practically all employees because “virtually every employee may conceivably make admissions binding on his or her employer.” In re Air Crash Disaster near Roselawn, Ind., 909 F. Supp. 1116, 1121 (N.D. Ill. 1995). However, some of the courts that have adopted this interpretation have expressed reservations. See Pratt v. National R.R. Passenger Corp., 54 F. Supp. 2d 78, 80 (D. Mass. 1999) (“This [c]ourt has previously highlighted some of the negative aspects of ethical rules prohibiting ex parte communications with individuals in the corporate context”); Hurley vs. Modem Cont. Constr. Co., supra (stating that linking rule to rule of evidence may frustrate “truth-seeking process”).
At the other end of the spectrum, a small number of jurisdictions have interpreted the rule narrowly so as to allow an attorney for the opposing party to contact most employees of a represented organization. These courts construe the rule to restrict contact with only those employees in the organization’s “control group,” defined as those employees in the uppermost echelon of the organization’s management. See Johnson v. Cadillac Plastic Group, Inc., 930 F. Supp. 1437, 1442 (D. Colo. 1996); Fair Automotive Repair, Inc. v. Car-X Serv. Sys., Inc., 128 Ill. App. 3d 763, 771 (1984) (applying rule only to “top management persons who had the responsibility of making final decisions”); Wright v. Group Health Hosp., 103 Wash. 2d 192, 200 (1984) (applying rule only to “those employees who have the legal authority to ‘bind’ the corporation in a legal evidentiary sense, i.e., those employees who have ‘speaking authority’ for the corporation”).
Other jurisdictions have adopted yet a third test that, while allowing for some ex parte contacts with a represented organization’s employees, still maintains some protection of the organization. The Court of Appeals of New York articulated such a rule in Niesig v. Team I, 76 N.Y.2d 363 (1990), rejecting an approach that ties the rule to Fed. R. Evid. 801 (d)(2)(D). Instead, the court defined a represented person to include “employees whose acts or omissions in the matter under inquiry are binding on the corporation . . . or imputed to the corporation for purposes of its liability, or employees implementing the advice of counsel.” Id. at 374. Other jurisdictions have subsequently adopted the Niesig test. See, e.g., Weider Sports Equip. Co. v. Fitness First, Inc., 912 F. Supp. 502 (D. Utah 1996); Branham v. Norfolk & W. R.R., 151 F.R.D. 67, 70-71 (S.D.W. Va. 1993); State v. CIBA-GEIGY Corp., 247 N.J. Super. 314, 325 (1991); Dent v. Kaufman, 185 W. Va. 171 (1991); Strawser v. Exxon Co., U.S.A., 843 P.2d 613 (Wyo. 1992). In addition, the Restatement (Third) of the Law Governing Lawyers endorses this rule. See Restatement (Third) of Law Governing Lawyers § 100 Reporter’s Note comment e, at 98 (1998).
d. Our interpretation of rule 4.2. We adopt a test similar to that proposed in Niesig v. Team I, supra. Although the comment’s reference to persons “whose statement may constitute an admission on the part of the organization” was most likely intended as a reference to Fed. R. Evid. 801 (d)(2)(D), this interpretation would effectively prohibit the questioning of all employees who can offer information helpful to the litigation. We reject the comment as overly protective of the organization and too restrictive of an opposing attorney’s ability to contact and interview employees of an adversary organization.
We instead interpret the rule to ban contact only with those employees who have the authority to “commit the organization to a position regarding the subject matter of representation.” See Johnson v. Cadillac Plastic Group, Inc., supra at 1442; Restatement (Third) of Law Governing Lawyers, supra at § 100 comment e. See also Ethics 2000 Commission Draft for Public Comment Model Rule 4.2 Reporter’s Explanation of Changes (Feb. 21, 2000) (recommending deletion of the third category of the comment).8 The employees with whom contact is prohibited are those with “speaking authority” for the corporation who “have managing authority sufficient to give them the right to speak for, and bind, the corporation.” Wright v. Group Health Hosp., supra at 201. Employees who can commit the organization are those with authority to make decisions about the course of the litigation, such as when to initiate suit, and when to settle a pending case. See Restatement (Third) of the Law Governing Lawyers, supra at § 100 comment e, at 93 (employees who have the power to make binding evidentiary admissions are “analogous to . . . person[s] who possess[] power to settle a dispute on behalf of the organization”). We recognize that this test is a retrenchment from the broad prohibition on employee contact endorsed by the comment.
This interpretation, when read in conjunction with the other two categories of the comment, would prohibit ex parte contact only with those employees who exercise managerial responsibility in the matter, who are alleged to have committed the wrongful acts at issue in the litigation, or who have authority on behalf of the corporation to make decisions about the course of the litigation. This result is substantially the same as the Niesig test because it “prohibits direct communication . . . ‘with those officials . . . who have the legal power to bind the corporation in the matter or who are responsible for implementing the advice of the corporation’s lawyer . . . or whose own interests are directly at stake in a representation.’” Niesig v. Team I, supra at 374, quoting C. Wolfram, Modern Legal Ethics § 11.6, at 613 (1986).
Our test is consistent with the purposes of the rule, which are not to “protect a corporate party from the revelation of prejudicial facts,” Dent v. Kaufman, supra at 175, quoting Wright v. Group Health Hosp., supra at 200, but to protect the attorney-client relationship and prevent clients from making ill-advised statements without the counsel of their attorney. Prohibiting contact with all employees of a represented organization restricts informal contacts far more than is necessary to achieve these purposes. See Niesig v. Team I, supra at 372-373. The purposes of the rule are best served when it prohibits communication with those employees closely identified with the organization in the dispute. The interests of the organization are adequately protected by preventing contact with those employees empowered to make litigation decisions, and those employees whose actions or omissions are at issue in the case. We reject the “control group” test, which includes only the most senior management, as insufficient to protect the “principles motivating [Rule 4.2].” See id. at 373. The test we adopt protects an organizational party against improper advances and influence by an attorney, while still promoting access to relevant facts. See id. at 373-374. The Superior Court’s interpretation of the rule would grant an advantage to corporate litigants over nonorganizational parties. It grants an unwarranted benefit to organizations to require that a party always seek prior judicial approval to conduct informal interviews with witnesses to an event when the opposing party happens to be an organization and the events at issue occurred at the workplace.
While our interpretation of the rule may reduce the protection available to organizations provided by the attorney-client privilege, it allows a litigant to obtain more meaningful disclosure of the truth by conducting informal interviews with certain employees of an opposing organization. Our interpretation does not jeopardize legitimate organizational interests because it continues to disallow contacts with those members of the organization who are so closely tied with the organization or the events at issue that it would be unfair to interview them without the presence of the organization’s counsel. Fairness to the organization does not require the presence of an attorney every time an employee may make a statement admissible in evidence against his or her employer. The public policy of promoting efficient discovery is better advanced by adopting a rule which favors the revelation of the truth by making it more difficult for an organization to prevent the disclosure of relevant evidence.
Harvard argues that adopting the Superior Court’s interpretation of rule 4.2 will not prevent parties from conducting informal interviews with an organization’s employees, but will instead simply force them to seek prior judicial approval. However, if we adopt such a rule, too often in cases involving a corporate party the court will be asked to decide the extent of informal interviews permitted. This will result in extensive litigation before the underlying case even begins, and would clearly favor the better-financed party. See, e.g., Phillips-Farr vs. Commonwealth, Suffolk Superior Court, No. 98-2218-F (Nov. 16, 2001).
Our decision may initially result in some increased litigation to define exactly which employees fall within the bounds of the rule. Although “a bright-line rule” in the form of a “control group” test or a blanket ban on all employee interviews would be easier to apply, the rule we adopt is, as discussed above, fair, and will allow for ex parte interviews without prior counsel’s permission when an employee clearly falls outside of the rule’s scope. See Dent v. Kaufman, supra at 175 (adopting Niesig test although “control group” test would be more straightforward).
The dissent argues that the Niesig test is not transferable to this jurisdiction because the test was adopted in the context of New York’s narrower rule on employee admissions, which allows fewer employee statements to be admitted as admissions against the employer than the Massachusetts rule. See Niesig v. Team I, supra at 374. The limits of the ethical rule are not dictated by the breadth or narrowness of local evidentiary rules. While it is true that New York has adopted a more limited rule of evidence regarding admissions, this fact does not mandate that we adopt a rule with greater protection of organizational employees. The Niesig court adopted the test after balancing the competing interests of organizational litigants and the interests of the parties who oppose them; the court’s decision was not rooted in its recognition that New York has a more limited rule of evidence. Id. at 373-375. For the reasons described above, the Niesig test is sound regardless of its basis.
The dissent also complains of “a distinct disadvantage to the organizational parties” as a result of our construction of the rule because “[i]n the nonorganizational context, a witness’s hearsay statement could not be a vicarious admission of the defendant, yet in the organizational context it could.” Post at 365. We do not discern a meaningful distinction. The otherwise hearsay statements of the hypothetical witnesses posited by the dissent become admissible in evidence because of an agency relationship that exists between the witness and the party against whom the statement is offered. It is because of that agency relationship that the witness’s statement is deemed to be the statement of his principal and is thus admissible. This is true both in an organizational as well as a nonorganizational context, given that individuals as well as organizations can have agents who may make statements attributable to them. If such agents come within the protected categories that we have delineated, their principals may insist that they not be approached by adverse counsel without prior permission. If they do not come within such categories, then they may provide information without such restriction whether they are agents of an organization or of an individual. The fact that organizations more often use agents who make admissible statements means only that there may be more people who may speak authoritatively for organizations than for individuals. It does not alter the principles that underlie what we believe is a desirable shift in emphasis in the direction of truth seeking.
The Harvard employees are also not employees “whose act or omission in connection with that matter may be imputed to the organization for purposes of civil or criminal liability.” Mass. R. Prof. C. 4.2 comment [4]. Stanford’s complaint does not name any of these employees as involved in the alleged discrimination. In fact, in an affidavit she states that the two lieutenants “had no role in making any of the decisions that are the subject of my complaint of discrimination and retaliation,” and Harvard does not refute this averment. All five employees were mere witnesses to the events that occurred, not active participants.
We must still determine, however, whether any of the interviewed employees have “managerial responsibility on behalf of the organization with regard to the subject of the representation.” Mass. R. Prof. C. 4.2 comment [4]. Although the two patrol officers and the dispatcher were subordinate to Stanford and had no managerial authority, the two lieutenants exercised some supervisory authority over Stanford. However, not all employees with some supervisory power over their coworkers are deemed to have “managerial” responsibility in the sense intended by the comment. See Orlowski v. Dominick’s Finer Foods, Inc., 937 F. Supp. 723, 729 (N.D. Ill. 1996). “[S]upervision of a small group of workers would not constitute a managerial position within a corporation.” Id., quoting Carter-Herman v. Philadelphia, 897 F. Supp. 899, 904 (E.D. Pa. 1995). Even if the two lieutenants are deemed to have managerial responsibility, the Massachusetts version of the comment adds the requirement that the managerial responsibility be in “regard to the subject of the representation.” Mass. R. Prof. C. 4.2 comment [4]. Thus, the comment includes only those employees who have supervisory authority over the events at issue in the litigation. There is no evidence in the record that the lieutenants’ managerial decisions were a subject of the litigation. The affidavits of the two lieutenants indicate that they did not complete any evaluations or offer any opinions of Stanford that Chief Riley considered in reaching his decisions.
So ordered.