Messing v. President and Fellows of Harvard College Brief Amici Curiae

    COMMONWEALTH OF MASSACHUSETTS 
SUPREME JUDICIAL COURT

No. SJC-08592

MESSING, RUDAVSKY & WELIKY, P.C., 
Appellant,

v.
PRESIDENT AND FELLOWS OF HARVARD COLLEGE,

Appellee.

ON RESERVATION AND REPORT BY A SINGLE JUSTICE 
PURSUANT TO G.L. c. 211, § 3

BRIEF OF AMICI CURIAE 
NAACP LEGAL DEFENSE & EDUCATIONAL 
FUND, INC., AND JOINING WITH IT:
LAWYERS' COMMITTEE FOR CIVIL RIGHTS UNDER 
LAW, LAWYERS' COMMITTEE FOR CIVIL RIGHTS 
UNDER LAW OF THE BOSTON BAR ASSOCIATION, 
GAY & LESBIAN ADVOCATES & DEFENDERS, 
COALITION OF LABOR UNION WOMEN, MAINE 
EMPLOYMENT LAWYERS ASSOCIATION, AND 
THE DISABILITY LAW CENTER

ELAINE R. JONES 
THEODORE M. SHAW 
NORMAN J. CHACHKIN 
JAMES L. COTT 
ROBERT H. STROUP 
NAACP LEGAL DEFENSE & 
EDUCATIONAL FUND INC.
99 Hudson Street, 16th Floor 
New York, New York 10013 
(212) 965-2268 
Attorneys for Amici Curiae
September 28, 2001



PRELIMINARY STATEMENT ..............................  1

STATEMENT OF THE C A S E ............................... 2

STATEMENT OF INTEREST OF AMICI CURIAE ...............  2
SUMMARY OF ARGUMENT ................................  3
ARGUMENT ..........................................  4

UNDER THE RULE SET FORTH BY THE SUPERIOR COURT, 
CIVIL RIGHTS PLAINTIFFS AND THEIR ATTORNEYS WILL 
BE EFFECTIVELY BARRED FROM INVESTIGATING AND 
PROSECUTING MERITORIOUS ACTIONS ...............  4

A. The Superior Court's Interpretation of Rule

TABLE OF CONTENTS

4.2 Will Chill and Impede Civil Rights
Enforcement ..............................  4

1. An Overly Broad Reading of Rule 4.2
Will Eviscerate the Public Policy 
Behind the Civil Rights Laws ........  4

2. An Overly Broad Reading of Rule 4.2
Will Weaken the Investigation and 
Prosecution of Employment 
Discrimination Cases ................  8

3. An Overly Broad Reading of Rule 4.2
Will Adversely Affect Enforcement of 
Other Civil Rights Laws As Well . . 16

4. An Overly Broad Reading of Rule 4.2
Will Adversely Affect Class 
Certification ....................  17

5. An Overly Broad Reading of Rule 4.2
Will Render It a Rule of Corporate 
Immunity, Not Professional Ethics . 18

B. The Superior Court's Interpretation of Rule 
4.2 Conflicts with Other Ethical 
Responsibilities of Counsel Established in 
Massachusetts and Federal L a w .......... 20

l



c. The Superior Court's Interpretation of 
Rule 4.2 Raises Serious First Amendment 
Questions.............................. 27

CONCLUSION...................................... ...

ii



TABLE OF AUTHORITIES

FEDERAL CASES
Alexander v. Gardner-Denver Co.,

415 U.S. 36 (1974) ........................  19

Brown v. Oregon Department of Corrections,
173 F.R.D. 265 (D. Or. 1997) ...... 14, 15, 16

Buckhannon Board & Care Home, Inc. v. West Virginia 
Department of Health 
& Human Resources,
532 U.S. ___, 121 S. Ct. 1835 (2001) .......  5

Buckley v. Valeo,
424 U.S. 1 (1976) .........................  30

Cabell v. Petty,
810 F.2d 463 (4th Cir. 1987) ..............  23

Chaulk Services, Inc. v. Massachusetts Commission 
Against Discrimination,
70 F.3d 1361 (1st Cir. 1995) ...........  4, 5

Christiansburg Garment Co. v. EEOC,
434 U.S. 412 (1978) ......................  25

Crowley v. L.L. Bean, Inc.,
143 F. Supp. 2d 38 (D. Me. 2001) ..........  13

EEOC v. Astra USA, Inc. ,
94 F. 3d 738 (1st Cir. 1996) ................  6

EEOC v. Plumbers Local 189,
311 F. Supp. 464 (S.D. Ohio 1970) .........  10

Faragher v. City of Boca Raton,
524 U.S. 775 (1998) ......................... 22

Frank v. Capital Cities Communications,
88 F.R.D. 674 (S.D.N.Y. 1981)   14

Gillette v. Delmore,
886 F.2d 1194 (9th Cir. 1989) .............  23

iii



Gulf Oil Co. v. Bernard,
452 U.S. 89 (1981), aff'g, 619 F.2d 459
(5th Cir. 1980) ...........................  17

Hasham v. California State Board of Equalization,
200 F. 3d 1035 (7th Cir. 2000) .............  13

Havens Realty v. Coleman,
455 U.S. 363 (1982) .......................  16

Herbst v. Ryan,
90 F.3d 1300 (7th Cir. 1996) ...............  6

Hill v. St. Louis University,
123 F. 3d 1114 (8th Cir. 1997) ..............  8

Hunter v. Allis-Chalmers Corp.,
797 F. 2d 1417 (7th Cir. 1986) .........  12, 13

Johnson v. Cadillac Plastic Group, Inc.,
930 F. Supp. 1437 (D. Colo. 1996) .........  21

Kaveney v. Murphy,
97 F. Supp. 2d 88 (D. Mass. 2000) ..... 11, 21

Kolstad v. American Dental Association,
527 U.S. 526 (1999) .......................  22

McDonnell-Douglas v. Green,
411 U.S. 792 (1973) .................  8, 9, 18

Morales v. Turman,
59 F.R.D. 157 (E.D. Tex. 1972) ............  32

Morrison v. Brandeis University,
125 F.R.D. 14 (D. Mass. 1989) ..............  9

NAACP v. Button,
371 U.S. 415 (1963) ...................  28, 29

NLRB v. Robbins Tire & Rubber Co.,
437 U.S. 214 (1978) .......................  10

New York Gaslight Club v. Carey,
447 U.S. 54 (1980) .........................  5

IV



Price Waterhouse v. Hopkins,
490 U.S. 228 (1989) .......................  18

In re Primus,
436 U.S. 412 (1978) ...........  28, 29, 30, 31

Reeves v. Sanderson Plumbing Products,
530 U.S. 133 (2000)   21

Sheehan v. Purolator, Inc.,
839 F.2d 99 (2d Cir.), cert, denied,
488 U.S. 891 (1988) ....................... 18

Snell v. Suffolk County,
782 F. 2d 1094 (2d Cir. 1986) ..........  11, 12

In re Snyder,
472 U.S. 634 (1985) ........................ 8

Spulak v. K Mart Corp.,
894 F.2d 1150 (10th Cir. 1990) ............  13

Trafficante v. Metropolitan Life Insurance Co.,
409 U.S. 205 (1972) .......................  4

Turner v. Sungard Business Systems, Inc.,
91 F.3d 1418 (11th Cir. 1996) ..... 24, 25, 26

United States v. City of Milwaukee,
390 F. Supp. 1126 (E.D. Wis. 1975) .........  6

United States v. Ford,
176 F.3d 376 (6th Cir. 1999)   27

Vega v. Bloomsburgh,
427 F. Supp. 593 (D. Mass. 1977) ..........  29

Weeks v. Independent School District No. 1-89,
230 F. 3d 1201 (10th Cir. 2000) .............  8

Weider Sports Equipment Co. v. Fitness First, Inc.,
912 F. Supp. 502 (D. Utah 1996) .... 8, 10, 19

STATE CASES
Batchelder v. Allied Stores Corp.,

393 Mass. 819 (1985) .......................  6

v



Blare v. Husky Injection Molding System Boston, Inc.,
419 Mass. 437 (1995) ..................  18, 19

Community National Bank v. Dawes,
369 Mass. 550 (1976) ......................  24

Jorgensen v. Taco Bell Corp.,
72 Fair Empl. Prac. Cas. 815, 58 Cal.
Rptr. 178 (Cal. App. 1st Dist. 1996) ...... 25

Lipchitz v. Raytheon Co.,
434 Mass. 493 (2001)   8

Niesig v. Team I,
559 N.Y.S.2d 493, 558 N.E.2d 1030 (1990) ... 20

Wright v. Group Health Hospital,
103 Wash. 2d 192, 691 P.2d 564 (1984) ..... 19

Wynn & Wynn, P.C. v. Massachusetts Commission 
Against Discrimination,
431 Mass. 655 (2000)   18

FEDERAL STATUTES AND RULES
42 U.S.C. § 1988 ..................................  5
42 U.S.C. § 2000e-7   5

42 U.S.C. § 2000e et seq ........................  4

Fed. R. Civ. P. 11 ...........................  21, 24
Fed. R. Civ. P. 23 ...............................  17

D. Mass. Local Rule 83.6(4) (B) ....................  7

STATE STATUTES AND RULES
Mass. Gen. L. ch. 12, §111   6

Mass. Gen. L. ch. 151B, §§1-10   4
Mass. Gen. L. ch. 151B, §4   17
Mass. Gen. L. ch. 221, §46A   34

vi



Mass. Gen. L. ch. 231, §6F 26
Mass. Gen. L. ch.. 231, §6G ...... .................. 26
Mass. Gen . L. ch.. 272, §92A ....................... 17
Mass. Gen . L. ch., 272, §98 ...... .................. 17
Mass. R. Civ. P. 11 . . .... 20, 23, 24, 27
Mass. R. Civ. P. 23 . .

Vll



PRELIMINARY STATEMENT

The undersigned civil rights organizations 

respectfully submit this brief as amici curiae to bring 

to the Court's attention the extraordinarily detrimental 

effect the conclusion reached by the Superior Court in 

Stanford v. President and Fellows of Harvard College, 

2000 Mass. Super. LEXIS 489 (Nov. 1, 2000), will have on 

the enforcement of civil rights laws if it is affirmed. 

As presently formulated, the rule adopted by the Superior 

Court is so broad in precluding ex parte contact with 

corporate employees that it will apply to virtually all 

forms of communication between an employee, an applicant 

for employment, or an employee's attorney and a potential 

or actual corporate defendant.

Indeed, the rule will have ramifications far beyond 

the sphere of employment litigation. As we show below, 

such a rule severely impairs plaintiffs and their counsel 

in their role as private attorneys general enforcing laws 

of critical public importance and will substantially set 

back civil rights enforcement in both state and federal 

courts. The Superior Court's decision ultimately renders 

Massachusetts Rule of Professional Conduct 4.2 and its 

predecessor Disciplinary Rule 7-104 (for purposes of 

simplicity, hereinafter referred to collectively as "Rule

1



4.2") a rule of corporate immunity, not of professional 

ethics.

Given the importance and difficulty of civil rights 

enforcement, the Court should not impose bright line, 

across-the-board rules barring contact with corporate 

employees by private (or, for that matter, public) 

attorneys general. Rather, standards of conduct for 

plaintiffs and their attorneys should be developed only 

after careful consideration of the facts of individual 

cases and should reflect an appropriate balancing of the 

need to protect attorney work-product and attorney-client 

privilege, the right of a corporation to formulate its 

litigation defense effectively, and the obligations of 

counsel to conduct adequate pre-filing factual 

investigation and to represent clients zealously.

STATEMENT OF THE CASE
Amici rely upon, and incorporate by reference, the 

Statement of the Case set forth in appellant Messing, 

Rudavsky & Weiiky, P.C.'s brief.

STATEMENT OF INTEREST OF AMICI CURIAE
A statement describing the interests of each of the 

amici curiae is attached hereto as Addendum A.

2



SUMMARY OF ARGUMENT

This Court should reject the Superior Court's 

conclusion that Rule 4.2 forbids a lawyer to speak with 

any institutional employee, absent consent of the 

institution's counsel, whose acts or omissions could bind 

or impute liability to the organization or whose 

statements could be used as admissions against the 

organization. This conclusion is far too broad, and will 

seriously limit civil rights enforcement, in 

contravention of the very purpose of civil rights laws. 

See Point A, infra at pages 4 to 19. Moreover, the 

Superior Court's decision fails to account for other 

ethical responsibilities counsel have under both state 

and federal law, especially requirements that pleadings 

not be filed unless they have evidentiary support. See 

Point B, infra at pages 20 to 27. Finally, the Superior 

Court's interpretation of Rule 4.2 raises serious 

constitutional questions, implicating the First Amendment 

interests in association, speech, and the ability to 

petition courts for redress. See Point C, infra at pages 

27 to 31.

3



ARGUMENT

UNDER THE RULE SET FORTH BY THE SUPERIOR COURT, 
CIVIL RIGHTS PLAINTIFFS AND THEIR ATTORNEYS WILL 
BE EFFECTIVELY BARRED FROM INVESTIGATING AND 

PROSECUTING MERITORIOUS ACTIONS
A. The Superior Court's Interpretation of Rule 4.2 Will 

Chill and Impede Civil Rights Enforcement
1. An Overly Broad Reading of Rule 4.2 Will 

Eviscerate the Public Policy Behind the Civil 
Rights Laws

The United States Supreme Court has reaffirmed time 

and again that the "main generating force" behind civil 

rights laws such as Title VII of the Civil Rights Act of 

1964, 42 U.S.C. § 2000e et seq. , is "private suits in

which . . . the complainants act not only on their own

behalf but also 'as private attorneys general in 

vindicating a policy that Congress considered to be of 

the highest priority.'" Trafficante v. Metropolitan Life 

Ins. Co., 409 U.S. 205, 211 (1972) (quoting Newman v.

Piggie Park Enterprises, 390 U.S. 400, 402 (1968)).1

Originally enacted in 1946, the Massachusetts 
anti-discrimination statute, Mass. Gen. L. ch. 151B, §§ 
1-10 (1994), under which the underlying suit here is 
brought, is eighteen years older than Title VII. See 
1946 Mass. Acts 368. "It regulates conduct in 
employment in order to carry out the Commonwealth's 
interest in ensuring that its workplaces are free from 
particular categories of discrimination. It represents 
no less an exercise of Massachusetts' police power than 
building codes or fire regulations." Chaulk Services, 
Inc. v. Massachusetts Comm'n Against Discrimination, 70

(continued...)
4



The Court has also observed that, in casting civil rights 

plaintiffs in the role of private attorneys general, 

Congress intended "to 'make it easier for a plaintiff of 

limited means to bring a meritorious suit.'" New York 

Gaslight Club v. Carey, 447 U.S. 54, 63 (1980) (quoting 

Christianburg Garment Co. v. EEOC, 434 U.S. 412, 420 

(1978)); see also Buckhannon Bd. & Care Home, Inc. v. 

West Virginia Dep't of Health & Human Resources, 532 U.S.

___/ 121 S. Ct. 1835, 1857 (2001)(Ginsburg, J.,

dissenting) (discussing importance of private attorneys 

general). Moreover, in enacting the Civil Rights 

Attorney's Fees Awards Act of 1976, 42 U.S.C. § 1988, 

Congress "took the view that private enforcement 

frequently would be necessary to remedy violations of the 1

1(...continued)
F . 3d 1361, 1372 (1st Cir. 1995) (Lynch, J. , 
dissenting) . As the courts have noted, "[t]he 
importance of state anti-discrimination statutes in the 
enforcement scheme of Title VII was of major concern to 
Congress in enacting Title VII." Id. at 1375 (citing 
Isaac v. Harvard University, 769 F.2d 817, 822 (1st 
Cir. 1985)). Not only did Congress preserve the 
operation of state anti-discrimination laws in Title 
VII, 42 U.S.C. § 2000e-7, but it made the state anti- 
discrimination laws an integral component of Title 
VII's enforcement structure. Id. (citing 42 U.S.C. § 
2000e-5(c) (providing that in states (like 
Massachusetts) that have anti-discrimination statutes 
and agency charged with enforcing statute, jurisdiction 
in state agency is exclusive for first 60 days after 
claim is filed).

5



civil rights laws." Herbst v. Ryan, 90 F.3d 1300, 1304 

(7th Cir. 1996) . The same is true in Massachusetts. 

See, e.g., Batchelder v. Allied Stores Corp., 393 Mass. 

819, 822 (1985) (discussing "statutory goal [in 

Massachusetts Civil Rights Act, G.L. c. 12 § 111] of 

encouraging private enforcement of civil rights 

violations").2

The Superior Court's decision in this case - which 

construed Rule 4.2 to forbid an attorney from speaking 

with any corporate employee, absent consent of the 

corporation's counsel,3 whenever the employee may make a

The Superior Court's interpretation of Rule 
4.2 would presumably extend to governmental agency 
enforcement suits as well, and thus effectively bar 
government lawyers from investigating and prosecuting 
meritorious actions under the applicable state and 
federal civil rights laws. Other courts in cases 
involving government enforcement of employment 
discrimination laws have disagreed with such an 
interpretation. See, e.g., EEOC v. Astra USA, Inc., 94 
F.3d 738, 744-45 (1st Cir. 1996) (court enjoined 
employer from use of "non-assistance" agreements 
barring employees who had settled their claims from 
assisting others who file EEOC charges)/ United States 
v. City of Milwaukee, 390 F. Supp. 1126, 1128 (E.D.
Wis. 1975) (court found that City of Milwaukee's threat 
to discipline employees who spoke with Justice 
Department investigators in Title VII case infringed on 
Department's right to communicate with potential 
witnesses and enjoined City from preventing its 
employees from speaking with Department investigators).

The Superior Court also ruled that, given the 
uncertainty of the scope of Rule 4.2, plaintiff's 
counsel should have sought judicial authorization prior

(continued...)
6



statement admissible in evidence because it concerns a 

matter within the scope of the employee's work - 

eviscerates this policy almost entirely.4

3(...continued)
to making ex parte contact with defendants' employees.
A per se requirement of judicial authorization before 
ex parte contact in such circumstances is 
inappropriate, however. In those frequent situations 
where a prospective plaintiff is still in a pre­
litigation investigative stage and counsel is in the 
process of amassing evidence to evaluate and/or support 
potential claims, counsel will often need to initiate 
contact with a potential adversary's corporate 
employees. A requirement of prior application to a 
court for permission to do so, whether or not notice to 
counsel for the corporate employer were mandated, would 
inevitably discourage counsel from pursuing such 
investigative steps and would thus have much the same 
result as an outright ban on contacts with employees. 
Even in the cases where suit is already pending, it is 
hard to fathom that already overburdened trial courts 
would welcome the literally hundreds of applications 
that would be made by attorneys seeking authorization 
of an ex parte contact if such a requirement were 
announced by this Court. Moreover, the notion of 
judicial intervention in a dispute prior to the 
decision of a party and the party's counsel formally to 
press a claim is fundamentally at odds with our 
adversarial system of litigation in which the court is 
brought in to resolve disputes only as a matter of last 
resort, as well as at odds with the self-executing 
nature of the ethics rules generally.

Because the District of Massachusetts has 
adopted the Massachusetts Rules of Professional 
Conduct, see D. Mass. Local Rule 83.6(4)(B), the rule 
announced by this Court will have significant 
ramifications for practice in federal court in Title 
VII and other federal civil rights cases as well as in 
Massachusetts state courts. While federal courts would 
not necessarily be bound by this Court's construction 
of Rule 4.2, it would arguably create serious 
difficulties for practitioners in Massachusetts were a

(continued...)
7



2. An Overly Broad Reading of Rule 4.2 Will 
Weaken the Investigation and Prosecution of 
Employment Discrimination Cases

A review of employment discrimination cases over the 

years reveals that had the blanket rule of the Superior 

Court been in place, civil rights enforcement would have 

been significantly weakened. For example, in the seminal 

case of McDonnell-Douglas v. Green, 411 U.S. 792 (1973), 

the Supreme Court set forth the now familiar standard of 

proof in a disparate treatment case.4 5 The McDonnell- 

Douglas Court suggested that plaintiff produce the 

following evidence in support of his argument that the 

employer's real motive was discriminatory: "[Ejvidence

that white employees involved in acts . . .  of comparable

4 (...continued)
federal court to adopt an interpretation of Rule 4.2 
different from that adopted by this Court. See In re 
Snyder, 472 U.S. 634, 645 n.6 (1985); Weeks v. 
Independent School District No. 1-89, 230 F.3d 1201, 
1214 (10th Cir. 2000) (Briscoe, J., concurring) (citing
Cole v. Ruidoso Mun. Sch. , 43 F.3d 1373, 1383 (10th
Cir. 1994)); Hill v. St. Louis University, 123 F.3d 
1114, 1121 (8th Cir. 1997) (interpreting Rule 4.2 in 
manner identical to interpretation adopted by Missouri 
Supreme Court); Weider Sports Equip. Co. v. Fitness 
First, Inc., 912 F. Supp. 502, 510 (D. Utah 1996) 
(noting that if federal court interprets Rule 4.2 in 
manner different from highest state court of state in 
which federal court sits, it "could create problems for 
counsel by not knowing where the case was going to be 
litigated and which standard applied").

This Court, in applying Massachusetts' anti- 
discrimination statute, has consistently followed the 
three-stage McDonnell-Douglas framework. See, e.g., 
Lipchitz v. Raytheon Co., 434 Mass. 493, 498 (2001).

8



seriousness were . . . retained or rehired" and evidence 

concerning the employer's "general policy and practice 

with respect to minority employment." McDonnell -Douglas, 

411 U.S. at 804-05. In most cases, neither a plaintiff 

nor his or her lawyer can obtain this information without 

discussions with plaintiff's co-workers.

However, there is little reason to believe that, 

once contacted by plaintiff's counsel, competent 

corporate counsel will permit interviews of plaintiff's 

co-workers to occur without corporate counsel's presence. 

To insist that corporate counsel be present at each of 

these discussions is to ensure the intimidation of many 

of these potential witnesses into silence, and to prevent 

them from offering other information to plaintiff's 

counsel ranging from other persons with whom to speak to 

documents to discover. See Morrison v. Brandeis 

University, 125 F.R.D. 14, 19 (D. Mass. 1989) (noting 

"tendency which the presence of opposing counsel has to 

inhibit the free and open discussion which an attorney 

seeks to achieve at such interviews"). Requiring 

permission from corporate counsel to speak to such 

witnesses (even if the presence of corporate counsel is 

not mandated) will not overcome the obstacles created by 

a blanket "no-contact" rule. As one court has 

perceptively observed:

9



It is simplistic and naive to think 
that merely asking organizational 
counsel for permission to speak to 
an employee would be any more 
effective in gathering evidence than 
a prosecutor asking permission of a 
criminal defense counsel to speak to 
a defendant. Seeking permission 
from a company attorney is not 
realistic, although permission from 
the court may be more efficacious, 
but the analysis is standardless.

Weider Sports Equipment Co. v. Fitness First, Inc., 912

F. Supp. 502, 508 n.8 (D. Utah 1996).

The chilling effect is especially true here because 

the Superior Court's opinion places no limits on the 

contacts between corporate counsel and these employees - 

before, during or after discussions with plaintiff's 

counsel. As the Supreme Court has warned: "The danger of 

witness intimidation is particularly acute with respect 

to current employees - whether rank and file, 

supervisory, or managerial - over whom the employer, by 

virtue of the employment relationship, may exercise 

intense leverage. Not only can the employer fire the 

employee, but job assignments can be switched, hours can 

be adjusted, wage and salary increases held up, and other 

more subtle forms of influence exerted." NLRB v. Robbins 

Tire & Rubber Co., 437 U.S. 214, 240 (1978). See also 

EEOC v. Plumbers Local 189, 311 F. Supp. 464, 466 (S.D. 

Ohio 1970) (conversations with union and employer present

10



held to be coercive and statements made during the course 

thereof not truly voluntary) . Thus, it is fair to say 

that employment discrimination claims present the most 

compelling case for ex parte contact with an 

organization's employees. As one court recently 

observed:

[U]nlike plaintiffs outside the 
employment context, all the relevant 
action takes place in a setting 
controlled by the employer. While 
other plaintiffs can conduct an 
informal investigation to shape 
their theories - for example, 
interview the witnesses to the 
accident, talk to the participants, 
determine the strategy out of 
earshot of his opponents - this 
plaintiff must stand at the 
employer's door and seek permission 
to enter.

Kaveney v. Murphy, 97 F. Supp. 2d 88, 89 (D. Mass. 2000) .

The pressing need for employment discrimination 

plaintiffs and their counsel to communicate privately 

with other employees is starkly illustrated in Snell v. 

Suffolk County, 782 F.2d 1094 (2d Cir. 1986), a case 

involving overt and widespread racial harassment of 

corrections officers employed by a county government. 

The court's description of the work environment in the 

county makes clear the need for plaintiffs' counsel to 

interview fellow employees outside the presence of 

opposing counsel. One witness, for example, testified

11



that after an unsuccessful attempt to challenge the 

harassment in an administrative hearing, a group of white 

officers marched outside the hearing room chanting and 

carrying signs declaring, "We have the spic." Id. at 

1098. Several other officers testified that they had 

also suffered and witnessed racial harassment, but had 

chosen not to report it for fear of retaliation. Id. at 

1105, n.13. In such an atmosphere, the presence of an 

employer's lawyer is likely to close off any meaningful 

discussion about working conditions.

Similar workplace conditions prevailed in Hunter v. 

All is-Chalmers Corp. , 797 F.2d 1417 (7th Cir. 1986), in 

which plaintiff described racial harassment including 

racial graffiti on the bulletin board and tampering with 

tools. Significantly, much of plaintiff's evidence in 

that case concerned the harassment of other employees, 

such as derogatory notes and a hangman's noose left in 

another worker's equipment. Plaintiff also presented 

evidence that his foreman called another black worker a 

"nigger" and often referred to other black workers as 

"niggers" behind their backs. Id. at 1420. The Court of 

Appeals for the Seventh Circuit held that evidence of 

discrimination against plaintiff's co-workers was 

"pertinent, perhaps essential, to [plaintiff's] case." 

Id. at 1424. Neither plaintiff nor his lawyer could have

12



gathered this evidence without open discussions with 

other black and white employees. In fact, the opinion 

noted that plaintiff's lawyer visited the plant during 

the investigatory process. Id. at 1420. It is hard to 

believe that the presence of Allis-Chalmers' lawyer 

during these discussions would not have significantly 

inhibited the gathering of relevant information from 

employees reluctant to jeopardize their livelihood by 

criticizing their managers or other corporate personnel.

Not surprisingly, the need for plaintiff's counsel 

in an employment discrimination case to communicate with 

his or her client's fellow employees has been addressed 

frequently by the courts, since the "testimony of other 

employees about their treatment by the defendant is 

relevant to the issue of the employer's discriminatory 

intent." Spulak v. K Mart Corp. , 894 F.2d 1150, 1156 

(10th Cir. 1990) ; see also Hasham v. California State Bd. 

of Equalization, 200 F.3d 1035, 1050 (7th Cir. 

2000) (testimony of co-workers constitutes evidence of 

discrimination); Crowley v. L.L. Bean, Inc., 143 F. Supp. 

2d 38, 42 n.3 (D. Me. 2001) (court denied employer's 

request to exclude affidavits of current and former 

employees in opposition to summary judgment, finding 

employees who gave sworn statements are witnesses to 

events of case and not within category of employees who

13



would be deemed to represent employer); Frank v. Capital 

Cities Communications, 88 F.R.D. 674, 676 (S.D.N.Y. 1981) 

("The experience of other employees may well be probative 

of the existence vel non of a discriminatory policy, 

thereby affecting the merits of plaintiff's own claims").

The Court in Brown v. Oregon Dep't of Corrections, 

173 F.R.D. 265 (D. Or. 1997), considered the scope of an 

analogous ethical rule in a case where the racial 

harassment plaintiff was a former employee. Defendants 

moved for a protective order barring plaintiff's proposed 

interviews of certain current and former employees, 

including but not limited to employees in the rank of 

sergeant. Unlike the Superior Court here, the court made 

a number of distinctions based on the core principles of 

the Rule. It agreed that sergeants were not management 

employees. It barred ex parte contact with employees who 

were the agency's equivalent of corporate officers and 

directors, but permitted ex parte contact with persons in 

the rank of sergeant and below.6 Id. at 267-68. 

Although defendants contended that notice to the 

employer was central to liability on the racial 

harassment claim and the observations of employees were 

relevant to notice, the court held that employees who saw

6 Defendants in the case did not contest this 
point.

14



harassment occur were simply fact witnesses to the

conduct at issue. It stated: "Notice to the employer is

a separate issue from imputing the employee's own conduct

to management for the purpose of vicarious liability."

Id. at 268. The court allowed plaintiff to contact ex

parte "all non-management employees and question them

concerning their observation of harassing behavior, if

any, committed by other employees." Id. It continued:

Brown may not ask these employees to discuss 
their own harassing behavior, if any, unless 
Brown wishes to do so in a deposition. Brown 
may ask these employees if they have any 
personal knowledge as to what management knew 
about the alleged harassment. Brown should 
refrain from ex parte contact with an employee 
whom others have accused of harassing 
behavior.

Id. The court denied defendants' request for prior 

notification of all individuals whom plaintiff's counsel 

would be contacting ex parte. Id. On Brown's 

promotional claim, the court approved plaintiff's 

decision to refrain from contacting ex parte any current 

employee who "participated in the promotion process, 

including any employee on the interview panel," because 

the conduct of those employees was at issue. Id. The 

court directed that plaintiff's counsel "may neither ask 

nor permit a current or former employee to disclose 

privileged communications," and "shall stop the 

interviewee from continuing to speak and explain the

15



restriction to that person" if the interviewee volunteers 

information about a privileged communication. Id. at 

269 .

Contrary to the conclusion in Brown, the rule 

announced by the Superior Court here would require all 

further communications between potential plaintiffs and 

plaintiffs' counsel to be conducted under the watchful 

eye of corporate counsel, thus necessarily impeding the 

free exchange of information.

3. An Overly Broad Reading of Rule 4.2 Will 
Adversely Affect Enforcement of Other Civil 
Rights Laws As Well

Other civil rights enforcement will also be 

curtailed as a result of the Superior Court's rule. In 

the area of housing discrimination, for example, a 

plaintiff's ability to establish a violation may be 

sharply restricted. Under the procedure approved by the 

Supreme Court in Havens Realty v. Coleman, 455 U.S. 363 

(1982), minority and white housing applicants are sent by 

civil rights organizations to a broker or landlord 

suspected of discrimination. If the white applicants are 

treated more favorably than the minority applicants, a 

lawsuit may be initiated. However, under the Superior 

Court's rule, communications between the testers (who 

might be regarded under such circumstances as agents of 

a prospective plaintiff's counsel) and the broker's

16



employees could be grounds for sanctions for plaintiff's 

counsel, if the broker were represented by counsel. Even 

aside from testing, the rule announced by the Superior 

Court would have the same chilling effect in other 

housing, public accommodations, credit and services 

cases. See generally G.L. c. 151B § 4 (employment, 

housing, credit and services); G.L. c. 272 §§ 92A, 98 

(public accommodations) .

4. An Overly Broad Reading of Rule 4.2 Will 
Adversely Affect Class Certification

The rule would also have a detrimental effect on 

plaintiffs' ability to move successfully for class 

certification under Rule 23 of the Massachusetts Rules of 

Civil Procedure (and the analogous federal rule, Fed. R. 

Civ. P. 23).7 Under that Rule, plaintiffs must prove 

that other affected employees are too numerous to be 

conveniently joined, and that plaintiffs' claims are 

common and typical to those of other potential class

In this context, the Supreme Court has ruled 
that it was beyond the power of a district court under 
the Federal Rules to issue a blanket prohibition on 
plaintiffs' counsel speaking to prospective employee 
class members in a Title VII action. The Fifth Circuit 
had reached the same conclusion on the ground that such 
a prohibition would violate the First Amendment. Gulf 
Oil Co. v. Bernard, 452 U.S. 89 (1981), aff'g, 619 F.2d 
459 (5th Cir. 1980) (en banc) .

17



members.8 Without discussions with potential class 

members, meaningful investigation may be impossible.

5. An Overly Broad Reading of Rule 4.2 Will 
Render It a Rule of Corporate Immunity, Not 
Professional Ethics

Both state and federal courts have often taken 

judicial notice of the difficulty in obtaining direct 

proof in civil rights cases. As Justice O'Connor has 

observed: "As should be apparent, the entire purpose of 

the McDonnell-Douglas prima facie case is to compensate 

for the fact that direct evidence of intentional 

discrimination is hard to come by." Price Waterhouse v. 

Hopkins, 490 U.S. 228, 271 (1989) (plurality opinion) 

(O'Connor, J., concurring); Wynn & Wynn, P.C. v. 

Massachusetts Comm'n Against Discrimination, 431 Mass. 

655, 665 n.21 (2000) (quoting O'Connor concurrence).

This Court has noted that, in employment discrimination 

cases under G.L. C.151B, the typical plaintiff has "no 

direct evidence of discrimination," Blare v. Husky 

Injection Molding Sys. Boston, Inc., 419 Mass. 437, 445 

n.8 (1995), and "[t]he ultimate question of the

For example, appellate courts have affirmed 
decisions denying class certification because 
plaintiffs did not make a sufficiently detailed showing 
concerning the specific complaints of other class 
members. See, e.g., Sheehan v. Purolator, Inc., 839 
F.2d 99, 102-03 (2d Cir.), cert, denied, 488 U.S. 891 
(1988) .

18



defendants' state of mind is elusive and rarely is 

established by other than circumstantial evidence." 

Blare, 419 Mass, at 439.

By severely restricting the ability of civil rights 

plaintiffs and their lawyers to gather necessary 

evidence, the Superior Court's decision here impedes 

vigorous enforcement of civil rights laws, which the 

Supreme Court has repeatedly deemed a matter of the 

"highest priority." Alexander v. Gardner-Denver Co. , 415 

U.S. 36, 47 (1974) . Thus, Rule 4.2, as Harvard and other 

corporate defendants would have this Court apply it, is 

in the end "not a matter of ethics but becomes, in 

reality, a rule of political and economic power that 

shelters organizations, corporations and other business 

enterprises from the legitimate less costly inquiry and 

fact gathering process sometimes necessary to make a 

legitimate assessment of whether a valid claim for relief 

exists." Welder Sports Equipment Co., 912 F. Supp. at 

508 . But as the Washington Supreme Court has succinctly 

put it: " [i]t is not the purpose of the rule to protect 

a corporate party from the revelation of prejudicial 

facts." Wright v. Group Health Hosp., 103 Wash. 2d 192, 

200, 691 P .2d 564, 569 (1984).

19



B. The Superior Court's Interpretation of Rule 4.2 
Conflicts with Other Ethical Responsibilities of 
Counsel Established in Massachusetts and Federal 
Law
Beyond the chilling effect the Superior Court's 

interpretation of Rule 4.2 will have on civil rights 

enforcement, it also conflicts with other ethical 

responsibilities that attorneys have in representing 

their clients, be they civil rights plaintiffs or 

otherwise.9 In particular, Rule 4.2 should be read in 

conjunction with Rule 11 of the Massachusetts Rules of 

Civil Procedure, which requires that an attorney may not 

file and serve a complaint unless "to the best of his 

knowledge, information, and belief there is a good ground 

to support it." As one Massachusetts federal judge 

recently observed with respect to the federal analog to 

Rule 11: "a total ban on ex parte communications in

employment cases would most likely discourage suits to 

vindicate certain constitutional and statutory rights, as

The decision of this Court will plainly 
affect not just employment discrimination claims, and 
not just civil rights claims, but all types of claims 
in which the decision of counsel whether or not to take 
a case, the decision of counsel how best to advise a 
client, or the preparation of administrative or 
judicial findings, is best performed by access to the 
factual information of persons who may still be 
employed by the prospective defendant. See, e.g., 
Niesig v. Team I, 559 N.Y.S.2d 493, 558 N.E.2d 1030 
(1990) (plaintiff in personal injury suit sought to 
have counsel privately interview corporate defendant's 
employees who witnessed his accident).

20



counsel would face an unusually difficult challenge in 

satisfying his or her obligation under Federal Rule of 

Civil Procedure 11 to ensure that the 'allegations and 

other factual contentions have evidentiary support.'" 

Kaveney v. Murphy, 97 F. Supp. 2d 88, 94 (D. Mass. 2000). 

See also Johnson v. Cadillac Plastic Group, Inc., 930 F. 

Supp. 1437, 1441 (D. Colo. 1996) ("An interpretation of 

Rule 4.2 that limits counsel to (and burdens their 

clients with the costs of) formal discovery during the 

investigatory stages of civil litigation is not only 

fundamentally unfair, but also frustrates the purposes of 

Rule 11.").

The reality is that when a potential employment 

discrimination client contacts counsel, the attorney does 

not often have enough information to make an informed 

determination whether the client has a winnable case. As 

the Supreme Court recently noted in Reeves v. Sanderson 

Plumbing Products, 530 U.S. 133 (2000), such cases turn 

on the experience of other employees in a comparable 

situation but who are of a different race, national 

origin, gender, religion, age, or disability status, on 

discriminatory remarks that may or may not have been made 

within the plaintiff's hearing, and on a host of other 

factors that may or may not be within the personal 

knowledge of the plaintiff. In a harassment case, and in

21



determining the availability of punitive damages, 

liability and relief may both be dependent on notice to 

the defendant and on the defendant's actions as to other 

victims. See, e.g., Faragher v. City of Boca Raton, 524 

U.S. 775 (1998) (harassment without a tangible job 

detriment); Kolstad v. American Dental Association, 527 

U.S. 526 (1999) (discussing punitive damages and the 

"good-faith effort to comply" defense). It does not 

matter whether such evidence is introduced through the 

testimony of the plaintiff or of other employees. Thus, 

information outside the knowledge of the potential 

plaintiff can be critical to adequate representation by 

counsel and to performance of counsel's ethical 

obligations.

Amici believe the following concerns should guide 

this Court in analyzing the implications of the Superior 

Court's interpretation of Rule 4.2:

(a) The first critical task of any attorney is 

to determine whether the potential client has a 

winnable claim. That will often - in our 

experience, in the vast majority of cases — require 

interviews with both current and former employees.

(b) The second critical task of any attorney 

is to recommend the best course of action. That,

22



too, is often dependent on the results of such 

interviews.

(c) The third critical task is to help frame 

the charge of discrimination, or to approve an 

enforcement agency's drafting of the charge. 

Charges are filed under oath, and it is crucial 

that the text of a charge be as accurate as 

possible; any variance between the facts at trial 

and those stated in the charge can be grounds for 

impeaching the plaintiff at a deposition or at 

trial. If time permits,10 counsel should certainly 

have the benefit of interviews with current and 

former employees before drafting any sworn 

statement for the charging party to sign.

(d) The fourth critical task is to frame a 

judicial complaint. Massachusetts Civil Procedure 

Rule 11(a) states that the signature of an attorney

Attorneys are sometimes contacted shortly 
before the expiration of a charge-filing or lawsuit­
filing period, and have no opportunity to conduct any 
interviews. See, e.g., Gillette v. Delmore, 886 F.2d 
1194, 1199 & n.4 (9th Cir. 1989) (attorney retained 
shortly before statute of limitations would have run); 
accord Cabell v. Petty, 810 F.2d 463, 467 (4th Cir.
1987) (Butzner, J., dissenting) ("Frequently attorneys 
must act quickly to meet statutory deadlines"). 
Requiring prior approval by a court for counsel's 
inquiries to employee-witnesses is thus quite 
unrealistic given the short time frames often available 
to counsel.

23



to a pleading is a certificate "that to the best of 

his knowledge there is a good ground to support 

it." The Rule "imposes an obligation on attorneys 

in this Commonwealth to ensure that sham pleadings 

are not employed." Community Nat'l Bank v. Dawes, 

369 Mass. 550, 557 (1976). Similarly, in Federal 

courts, Rule 11(b) of the Federal Rules of Civil 

Procedure requires that counsel submitting any 

writing - including but not limited to complaints - 

"is certifying that to the best of the person's 

knowledge, information, and belief, formed after an 

inquiry reasonable under the circumstances . . . 

(3) the allegations and other factual contentions 

have evidentiary support or, if specifically so 

identified, are likely to have evidentiary support 

after a reasonable opportunity for further 

investigation or discovery . . ."11 (emphasis

11 Violations of this Rule can result in the 
imposition on counsel of the opponent's attorney's fees 
and applies to successor, as well as original, counsel. 
In Turner v. Sungard Business Systems, Inc., 91 F.3d 
1418 (11th Cir. 1996), for example, the 11th Circuit 
upheld the imposition of a Rule 11 sanction of $6,255 
on plaintiff's second counsel for filing a Notice of 
Appearance and orally assuring the district court that 
he had the evidence to prove a critical element of 
plaintiff's claim - that the job at issue had been 
filled by a white employee. There was no such 
evidence. "By appearing in this case, [the second 
attorney] affirmed to the court that the case had

(continued...)

24



supplied) . See Jorgensen v. Taco Bell Corp. , 72 

Fair Empl. Prac. Cas. 815, 58 Cal. Rptr. 178 (Cal. 

App. 1st Dist. 1996) (plaintiff's counsel has duty 

to investigate claims and should not be 

disqualified for interviewing allegedly harassing 

employees seven months before suit was filed).

(e) The fifth critical task is to protect 

one's client — and often oneself — from harm. The 

consequences of bringing an employment 

discrimination action without an adequate basis, or 

for maintaining it after it should have become 

clear that it lacks an adequate basis, can include 

an order requiring the plaintiff (or plaintiff's 

counsel as in this instance) to pay attorneys' fees 

and expenses to the defendant. In Christiansburg 

Garment Co. v. EEOC, 434 U.S. 412, 420-22 (1978), 

the Supreme Court held that a prevailing defendant 

can receive an award of its attorneys' fees from a 

losing plaintiff "in a Title VII case upon a 

finding that the plaintiff's action was frivolous, 11

11 (. . . continued)
arguable merit. In this sense, it was as if [the 
second attorney] had refiled the complaint." Id. at 
1421. The court stated that plaintiff's failure to 
oppose defendant's motion for summary judgment 
demonstrated that plaintiff and his counsel knew his 
claim was groundless.

25



unreasonable, or without foundation, even though 

not brought in subjective bad faith."12 The Court 

held that the two purposes of Congress in enacting 

the fee-award provision in § 706(k) of Title VII of 

the Civil Rights Act of 1964 were to enable 

plaintiffs with meritorious claims but limited 

means to obtain counsel and, equally importantly, 

to deter the bringing of lawsuits without 

foundation. Id. at 420-21. Mass. Gen. Laws Ann. 

Ch. 231, §§ 6F (trial courts) and 6G (appellate 

courts) embody the same value.

This State and national public policy, as embodied 

in statutes and court rules, of requiring counsel to 

investigate the claims they make, by conducting a 

reasonable inquiry into the claims prior to making them, 

is eviscerated by any interpretation of Rule 4.2 that 

bars effective interviews with either current or former 

employees that fall outside the core concerns of the 

Rule. The State and national public policy of 

encouraging the litigation of meritorious civil rights 

claims is also frustrated by such interpretations, 

because without such interviews potential counsel will

In Turner v. Sungard Systems, plaintiff was 
ordered to pay $10,000 in attorneys' fees to defendant. 
91 F .3d at 1420-21.

26



often have limited and wholly unsatisfactory means of 

distinguishing good claims from ones without merit.

In sum, Rule 4.2 should be interpreted in light of 

the important State and national interests in eradicating 

unlawful discrimination through litigation initiated by 

private attorneys general,13 and in a manner that neither 

imposes insurmountable hurdles to counsel's zealous 

representation of his or her client nor frustrates 

counsel's ability to comply with Mass. R. Civ. P. 11 and 

its federal counterpart. For all these reasons, the 

Court should not apply Rule 4.2 rigidly to organizational 

contacts, because to do so would frustrate the inquiry 

necessary to satisfy Rule 11 standards.

C. The Superior Court's Interpretation of Rule 4.2
Raises Serious First Amendment Questions
Finally, the exceedingly broad interpretation of 

Rule 4.2 announced by the Superior Court raises

See, e.g., Comment 2 to Rule 4.2 as adopted 
in Massachusetts, recognizing that lawyers representing 
governmental entities have in some instances engaged, 
either directly or through agents, in conduct that 
violated the rule or its predecessor, where the conduct 
has nonetheless been allowed by the courts. The 
Comment excludes from the rule conduct supported by 
such precedents. See also United States v. Ford, 176 
F .3d 376, 382 (6th Cir. 1999) (with respect to the use 
of undercover informants to investigate allegations of 
criminal wrongdoing other than the offense on which the 
defendant has been indicted, "ethical rules should not 
be construed to conflict with the public's vital 
interest in ensuring that law enforcement officers 
investigate uncharged criminal activity").

27



potentially grave questions of constitutional dimension. 

A virtual ban on interviews or communications by an 

employee's attorney with the employee's co-workers and 

other employees, absent notice to and the consent of the 

employer's counsel, implicates constitutional interests 

in association, speech, and the opportunity to undertake 

collective activity "to obtain meaningful access to the 

courts." In re Primus, 436 U.S. 412, 426 (1978)(quoting 

United Transportation Union v. Michigan Bar, 401 U.S. 

576, 585 (1971)). These interests are "fundamental

right [s] within the protection of the First Amendment" 

that a state cannot impair through efforts to regulate 

the legal profession. Id. While a state may regulate 

members of its bar to protect against substantive evils, 

in doing so a state may not ignore constitutional rights, 

including the right to resort to the courts for redress. 

NAACP v. Button, 371 U.S. 415, 439, 443 (1963).

The ban fashioned by the Superior Court not only 

interferes with the speech and associational rights of 

the client-employee and her counsel, but of all other 

employees who are not actually functioning as the 

corporate "client." This interpretation of Rule 4.2 

impedes plaintiff's rights of association and opportunity 

to obtain meaningful access to the courts. The First 

Amendment presumptively protects such expression.

28



Restrictions on formal and informal attorney 

communication with employees of represented parties 

impair the ability of employees to freely associate, the 

ability of plaintiffs to communicate with potential 

witnesses, and the ability of attorneys to apprise 

employees of their legal rights. In particular, such 

limitations prohibit or impede the ability of employees 

to associate with other employees to oppose 

discrimination, including by obtaining information and 

witnesses, or informing others of their rights, and 

encouraging them to pursue their own or common claims. 

See NAACP v. Button, 371 U.S. at 428. The constitutional 

interests of plaintiffs' counsel are further impaired by 

an interpretation that forecloses attorneys from advising 

other employees of their rights and of occurrences at the 

workplace that may give rise to claims. In re Primus, 
436 U.S. at 431-32.

In addition, the constitutional interests of other 

employees are trammeled by a rule that denies them the 

opportunity to receive information regarding their rights 

and potential claims, and of the existence and 

opportunity to assist, participate or join in their 

fellow worker's efforts 'to achiev[e] the lawful 

objectives of equality of treatment" through the judicial 

process. NAACP v. Button, 371 U.S. at 429; see Vega v.

29



Bloomsburgh, 427 F. Supp. 593, 595 (D. Mass. 1977)

(defendant's memorandum instructing employees not to meet 

with plaintiffs' attorneys without specific approval of 

defendants' attorney impinged employees' First Amendment 

rights). Indeed, as previously noted, the Fifth Circuit, 

sitting en banc, found that a blanket prohibition on 

plaintiffs' counsel speaking to prospective employee

class members in a Title VII action would violate the 

First Amendment. See supra, at 17, n.7.

Restrictions on communication deserve the exacting 

scrutiny applicable to limitations on core First

Amendment rights. See Buckley v. Valeo, 424 U.S. 1, 4 4 - 4 5  

(1976) . Accordingly, the Supreme Court has held that 

restrictions on attorney communication may be justified 

only by showing that they are necessary to support a 

compelling interest of the State: the State must

demonstrate "a subordinating interest which is 

compelling." In re Primus, 436 U.S. at 432 (citing Bates 

v. City of Little Rock, 361 U.S. 516, 524 (I960)). 

Further, the regulation of such communications must be 

carefully focused on substantive evils.

The Supreme Court has made clear, however, that 

[b]road prophylactic rules in the area of free 

expression are suspect,' and that '[p]recision of 

regulation must be the touchstone in an area so closely

30



touching our most precious freedoms.' Because of the 

danger of censorship through selective enforcement of 

broad prohibitions, and '[b]ecause First Amendment 

freedoms need breathing space to survive, government may 

regulate in [this] area only with narrow specificity.'" 

Id. at 432 (quoting Button, 371 U.S. at 433, 438).

In sum, while Rule 4.2 is designed to protect proper 

interests in regulating the Bar, the sweeping 

interpretation of its reach by the Superior Court exceeds 

those interests and does so at the expense of First 

Amendment freedoms.

31



CONCLUSION

"When important civil rights are in issue in complex 

litigation of widespread concern, a court must make every 

effort to enhance the fact-finding process available to 

counsel for both sides." Morales v. Turman, 59 F.R.D. 

157, 159 (E.D. Tex. 1972) . If the Superior Court's 

construction of Rule 4.2 stands, then the fact-finding 

process will favor the corporate party in all disputes 

between individuals and corporations. Plaintiffs' 

counsel's informal discovery will be curtailed by 

corporate counsel, who will not agree to any contacts 

with corporate employees outside the counsel's presence. 

As a result, plaintiffs' counsel will be left to choose 

between expensive and often inconvenient discovery 

methods, such as depositions, or abandonment of what 

might in many cases be critical evidence. Counsel should 

not have to make such choices, especially in civil rights 

cases which depend on private attorneys to vindicate 

legislative policies to eradicate discrimination.

The State and Federal civil rights laws that were 

passed from the end of World War II through the present 

were intended to eliminate great and long-standing evils 

of all forms of discrimination in our society - to bring 

an end to long suffering without recourse. In these 

laws, the nation made a solemn promise that effective

32



recourse would be available through the administrative 

agencies and the courts: if the government did not have 

the resources to prosecute claims, private attorneys 

would be available to serve the public interest as 

private attorneys general. Above all else, the promise 

to the victims of discrimination was that now they would 

have such recourse.

The Superior Court's interpretation of Rule 4.2, if 

affirmed by this Court, would breach that solemn promise. 

The Superior Court may not have fully considered that the 

acceptance of its formulation would result in the 

inability of persons with meritorious civil rights claims 

to persuade attorneys or administrative agencies of the 

merits of their claims, or that judges and juries will be 

less able to locate a just result in disposing of the 

cases that come before them.

While we are mindful of the purposes behind the rule 

prohibiting ex parte contacts with represented parties, 

Amici have sought to lay before the Court the larger 

implications of its decision, so that the consequences of 

affirming the Superior Court's decision will be apparent. 

We believe that a blanket rule forbidding plaintiffs' 

attorneys from acting on their own to communicate with 

all current employees fails to achieve an appropriate

33



balance between the relevant interests. We thus urge the 

Court to reverse the Superior Court's decision.

Dated September 28, 2001

Respectfully submitted,

ELAINE R . JONES 
•DIRECTOR-COUNSEL 
THEODORE M . SHAW 
NORMAN J. CHACHKIN 
JAMES L . COTT*
ROBERT H. STROUP*
NAACP Legal Defense and

Educational Fund, Inc. 
99 Hudson Street, 16th Floor 
New York, New York 10013 
(212) 965-2200

Attorneys for Amici Curiae
NAACP Legal Defense &
Educational Fund, Inc.

Lawyers' Committee for Civil Rights
Under Law

Lawyers' Committee for Civil Rights 
Under Law of the Boston Bar Association 

Coalition of Labor Union Women 
Gay Sc Lesbian Advocates Sc Defenders 
Maine Employment Lawyers Association 
The Disability Law Center

*

permit
Pursuant to G.L. c. 221, § 46A, a motion to 

James L. Cott and Robert H. Stroup to appear and
practice in this Court on the present matter is 
pending.

34



ADDENDUM A

STATEMENT OF INTEREST OF AMICI CURIAE
The NAACP Legal Defense and Educational Fund, Inc. 

("LDF"), a non-profit corporation established under the 

laws of the State of New York, has prosecuted numerous 

civil rights cases on behalf of African Americans and 

others seeking vindication of their rights. LDF has in 

the past represented, and continues to represent, 

employees in litigation involving claims of

discrimination against their employers and others in 

state and federal courts. For many years, LDF attorneys 

have participated as amicus curiae in the Supreme Court 

of the United States, in the federal appellate and 

district courts, and in trial and appellate state courts, 

in employment cases. Supreme Court rulings in cases 

handled by LDF established the meaning of important 

provisions of Title VII of the Civil Rights Act of 1964, 

the federal analog to the Massachusetts anti- 

discrimination statute involved in this matter. See, 

e.g., Griggs v. Duke Power Co., 401 U.S. 424 (1971);

Albemarle Paper Co. v. Moody, 422 U.S. 405 (1975); Franks 

v. Bowman Transportation Co., 424 U.S. 747 (1976); and

Bazemore v. Friday, 478 U.S. 385 (1986) .

1



The Lawyers' Committee for Civil Rights Under Law 

("the Lawyers' Committee") was founded in 1963 by the 

leaders of the American bar, at the request of President 

Kennedy, in order to help defend the civil rights of 

minorities and the poor. Its Board of Trustees presently 

includes several past Presidents of the American Bar 

Association, past Attorneys General of the United States, 

law school deans and professors, and many of the nation's 

leading lawyers. It has local affiliates in Boston, 

Chicago, Denver, Los Angeles, Philadelphia, San Antonio, 

San Francisco, and Washington, D.C. Through the Lawyers' 

Committee and its affiliates, hundreds of attorneys have 

represented thousands of clients in civil rights cases 

across the country, including a large number of cases 

challenging racial discrimination in employment. The 

Lawyers' Committee is a tax-exempt, nonprofit civil 

rights organization. The Lawyers' Committee was one of 

the organizations whose efforts helped persuade Congress 

to enact the Civil Rights Act of 1991, as well as other 

key civil rights laws. One of the major purposes of the 

Lawyers' Committee has been to help secure the rights of 

victims of civil rights violations to obtain effective 

representation, to safeguard their access to the courts, 

and to ensure that they are able to present their claims 

fairly.

2



The Lawyers Committee for Civil Rights Under Law of 

the Boston Bar Association is an independent affiliate of 

the national Lawyers' Committee for Civil Rights Under

Law. Working with attorneys from law firms, it

prosecutes numerous cases across the State of

Massachusetts involving discrimination based on race and

national origin in employment, housing, and other areas. 

It is a tax-exempt, nonprofit civil rights organization.

The Coalition of Labor Union Women ("CLUW") is an 

AFL-CIO affiliate with over 25,000 members, a majority of 

whom are women, working in diverse industries and 

professions throughout the United States. For more than 

20 years, CLUW has advocated to strengthen the role and 

impact of women every aspect of their lives. CLUW

focuses its educational and advocacy programs on public 

policy issues such as equality in educational and 

employment opportunities, affirmative action, pay equity, 

national health care, labor law reform, and family and 

medical leave. CLUW has specifically addressed issues of 

sexual harassment and domestic violence affecting working 

women, and has published and distributed educational 

materials and conducted workshops and training programs 

on these topics. CLUW's periodic surveys of its members 

and other working women reveal that sexual harassment 

continues to be a substantial problem in the workplace,

3



and that women are still fearful of coming forward to 

present complaints about offensive and harassing 

behavior.

Gay & Lesbian Advocates & Defenders ("GLAD") is New 

England's leading legal rights organization combatting 

discrimination based on sexual orientation, HIV status, 

and gender identity and expression. GLAD has represented 

numerous plaintiffs in sexual orientation and HIV-related 

discrimination claims in employment, public 

accommodations, services and credit contexts at the 

Massachusetts Commission Against Discrimination and in 

state (and federal) courts. GLAD has also participated 

as an amicus curiae in discrimination cases before this 

and other state high courts.

Maine Employment Lawyers Association ("MELA") is a 

group of forty lawyers whose practice concentrates on 

plaintiff employment law. MELA attorneys have appeared 

as amici before the Maine Supreme Court, testified before 

the Maine Legislature, litigated precedent-setting cases 

and contributed to the development of federal 

legislation. The facts of this case indicate another 

attempt to interfere with the practice of public interest 

law by seeking extraordinary penalties against 

plaintiff's counsel for alleged violations of ethical 

rules. This tactic has been tried unsuccessfully in both

4



of Maine's federal courts and rejected strongly by the 

Court. The affirmance of this decision by the highest 

court in a sister state finding an ethical violation for 

contact with non-control group employees of a corporation 

could chill our ability to investigate and prosecute 

employment cases. The draconian penalty imposed by the 

Massachusetts Court could, if adopted by our courts, make 

it impossible to practice plaintiff's employment law for 

fear of financial ruin by imposing huge financial 

penalties for actions taken by counsel in good faith.

The Disability Law Center ("DLC") is a non-profit 

organization that is the federally designated Protection 

and Advocacy agency for Massachusetts. As a Protection 

and Advocacy agency, DLC is responsible for protecting 

and advocating for the rights of Massachusetts residents 

with disabilities. DLC's mission is to promote the 

fundamental rights of all persons with disabilities to 

participate fully and equally with all other persons in 

the social and economic life of Massachusetts. Pursuant 

to its federal mandate, DLC advocates for individuals 

with disabilities pursuant to federal legislation, 

including 29 U.S.C. § 791e; 42 U.S.C. § 10801 et seq.; 42 

U.S.C. § 6000 et seq. Among its services, DLC provides 

legal services to eligible people and groups, works with 

policy makers to address legislative and administrative

5



issues that benefit persons with disabilities, and 

provides information, referral, and advice and counsel 

regarding legal rights and services for people with 

disabilities. The DLC has participated as Amicus Curiae 

in many cases before the Massachusetts Supreme Judicial 

Court, the United States Court of Appeals for the First 

Circuit, and the United States Supreme Court. DLC 

provides representation to people with disabilities who 

have suffered discrimination in employment. Because DLC 

is a small agency, with limited resources, it 

investigates cases carefully before accepting them for 

representation, and wherever possible, relies on informal 

interviews rather than depositions to develop cases. 

Until early 1999, DLC typically interviewed witnesses 

identified by the client or revealed through discovery as 

a major component of its investigation. These witnesses 

included employees who had experienced similar 

discrimination, or who had knowledge relevant to the 

client's case. A rule prohibiting DLC from contacting 

any employees without the employer's consent would have 

a substantial adverse effect on DLC's ability to provide 

free, cost-effective, and competent representation to 

people with disabilities in employment cases.

6



CERTIFICATE OF SERVICE

I hereby certify that two copies of the 

foregoing BRIEF OF AMICI CURIAE have been served by 

depositing the same in the United States mail, first 

class postage prepaid, on this 28th day of September, 

2001, addressed to the following:

Wendy Sibbison, Esq.
26 Beech Street
Greenfield, MA 01301-2308

Attorney for Appellant
MESSING, RUDAVSKY & WELIKY, P.C.

David Casey, Esq. 
Bingham Dana LLP 
150 Federal Street 
Boston, MA 02110

Attorney for Appellee
PRESIDENT AND FELLOWS OF HARVARD COLLEGE

1ES L . COTT