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Patriarca v. Center for Living & Working11/14/2002
Worcester.
September 4, 2002
Attorney at Law, Attorney-client relationship, Communication with organization represented by counsel. Employment, Termination. Protective Order.
A judge in the Superior Court issued a protective order on the basis of Mass. R. Prof. C. 4.2, 426 Mass. 1402 (1998), barring counsel for the plaintiff, Ellen L. Patriarca, from any ex parte contact with former or future employees of the defendant, the Center for Living & Working, Inc. (center), on matters concerning their former employment or the pending litigation unless that contact were made with leave of court or of opposing counsel. A single justice of the Appeals Court granted Patriarca's petition for interlocutory review and authorized an appeal to a panel of the Appeals Court. We granted the plaintiff's application for direct appellate review. Because the former employees in question are neither actually represented by the center, nor the type of employee covered by rule 4.2, as construed in Messing, Rudavsky & Weliky, P.C. v. President & Fellows of Harvard College, 436 Mass. 347 (2002) (Messing), the protective order must be vacated. We do not reach the broader question of the applicability of rule 4.2 to former employees because, based on the record as presently developed, the former employees in question would not be covered by the rule even if they were still employed by the center. See note 8, supra.
Background.
Patriarca filed suit against the center, its board of directors, and Robert Bailey, executive director of the center, alleging wrongful termination from her employment as a registered nurse supervising the center's personal care attendant program. In the course of discovery Patriarca stated in her answer to an interrogatory that she had contacted four former employees of the center and had "discussed events which had occurred while we were both employed at [the center]." The defendants filed a motion for a protective order seeking to bar Patriarca and her counsel from having ex parte contact with the center's former employees on matters concerning their employment and the pending litigation. A judge in the Superior Court, who did not have the benefit of our decision in the Messing case, concluded that rule 4.2 may prohibit ex parte contact with former employees. He found that, in this case, the statements of former employees could be potentially admissible against the center, or that the former employees' acts or omissions could be imputed to the center. He issued an order barring Patriarca's counsel from "contacting any former employees of the defendant corporation on matters concerning their former employment and this litigation unless defense counsel is present or permission is granted from this court or from opposing counsel."
The defendants argue that rule 4.2 prevents ex parte contact with any former employee without first obtaining a ruling from the court in question or permission from the former employer's counsel. They claim that this degree of oversight is necessary because former employees may be able to divulge confidential or privileged information, and that a judge should be the gatekeeper by deciding in the first instance that the ban should be enforced to the extent to which a former employee's statements, made during the employment relationship and within the scope of employment, might be admissible in evidence in an action against the employer.
Patriarca argues that a blanket no-contact rule would provide institutional defendants with the power to control any information in the possession of anyone who ever worked at that institution. See Messing, supra at 358 ("Prohibiting contact with all employees
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