ELLEN L. PATRIARCA vs. CENTER FOR LIVING & WORKING, INC., & others. [Note 1], [Note 2]

SPINA, J. A judge in the Superior Court issued a protective order on the basis of Mass. R. Prof. C. 4.2, 426 Mass. 1402 (1998), [Note 3] 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)

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(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, infra.

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 [c]ourt or from opposing counsel." [Note 4]

The defendants argue that rule 4.2 prevents ex parte contact

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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 of a represented organization restricts informal contacts far more than is necessary to [protect attorney-client privilege, or prevent clients from making ill advised statements without the counsel of their attorney]"); Niesig v. Team I, 76 N.Y.2d 363 (1990) (blanket ban rejected because it would exact high price and be unnecessary to achieve objectives of rule). She suggests that it is the rare case where a former employee would be in a position to make a statement that could bind the former employer and urges the court to place the burden of showing that a former employee might be in a position to make such admissions on the former employer. In the interest of promoting the search for the truth and furthering informal, efficient, and inexpensive information gathering at the discovery stage of a proceeding, she asks the court to allow broad access to former employees by opposing counsel, "subject to appropriate conditions."

Discussion. A threshold question is whether a particular employee is actually represented by corporate counsel. [Note 5] An organization may not assert a preemptive and exclusive

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representation by the organization's lawyer of all current (or former) employees as a means to invoke rule 4.2 and insulate them all from ex parte communication with the lawyers of potential adversary parties. [Note 6] See Messing, supra at 356-357. The American Bar Association Committee on Ethics and Professional Responsibility has stated that Model Rule 4.2, on which our rule 4.2 is based, "does not contemplate that a lawyer representing the entity can invoke the rule's prohibition to cover all employees of the entity, by asserting a blanket representation of all of them." ABA Formal Op. 95-396, § VI (1995). See Carter-Herman v. Philadelphia, 897 F. Supp. 899, 903 (E.D. Pa. 1995) (rejecting "the notion that every city employee is automatically a represented party simply by virtue of his or her employment without any initiative on the part of the employee to obtain legal help from the City"); Brown v. St. Joseph County, 148 F.R.D. 246, 250 (N.D. Ind. 1993) ("no attorney has the right to appear as counsel for another without the latter's consent . . . and it follows that an attorney cannot properly hold himself out as representing a person who has not agreed to the representation" [citation omitted]). Thus, the center may not invoke rule 4.2 to claim that all current and former employees are represented, and therefore the protective order is overbroad. Any analysis must be employee specific. The center has made no factual showing that the former employees in question are actually represented by the center's (or their own personal) counsel.

We turn to the rule in the Messing case to determine whether the employees in question may be considered represented for purposes of rule 4.2. The purpose of rule 4.2 is to "protect the attorney-client relationship and prevent clients from making ill-

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advised statements without the counsel of their attorney." Messing, supra at 358. However, we recognized that prohibiting ex parte contact with all employees of a represented organization went beyond the purpose of the rule, which was not to "protect a corporate party from the revelation of prejudicial facts." Id., quoting Dent v. Kaufman, 185 W.Va. 171, 175 (1991). We sought a balance between the need to discover relevant facts and the competing need to protect the attorney-client relationship. Id. at 358-359. We construed rule 4.2 (and comment [4] thereto) to prohibit an attorney from having ex parte contact only with certain employees of an organization, namely, those "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." [Note 7] Id. at 357. As construed, the rule allows "ex parte interviews without prior counsel's permission when an employee clearly falls outside of the rule's scope." Id. at 359.

Patriarca was employed by the center as a registered nurse whose job responsibility was to manage the personal care attendant

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program, a program that provides persons who have permanent or chronic disabilities with assistance to allow them to live independently in their community instead of being institutionalized. See 130 Code Mass. Regs. §§ 422.416-422.423 (1999). Two of the former employees with whom she made contact had been occupational therapists. A third was an assistant community department manager-supervisor and skills trainer. These three had worked closely with Patriarca and Bailey at the center. The fourth had been a business manager at the center and had witnessed the events which led to Patriarca's separation from the center.

These four former employees of the center do not come within any category of employee covered by rule 4.2. See Messing, supra at 357. None of them is alleged to have committed the wrongful acts at issue in the litigation. There is no evidence, under their job descriptions or otherwise, that any of them had authority on behalf of the corporation to make decisions about the course of the litigation. The question whether any of them exercised managerial responsibility in the matter, however, is less obvious.

We said in Messing that employees with managerial responsibility in the matter "include[] only those employees who have supervisory authority over the events at issue in the litigation." Id. at 361. Patriarca alleges that Bailey pressured her to evaluate individuals who were not eligible for personal care services, to falsify documents to make it appear that certain individuals were eligible for personal care services, and finally to present false information to the Department of Medical Assistance by recommending more services for clients than was required. Her surviving claims against the center allege breach of contract and wrongful termination in violation of public policy. Thus, to find that the former employees in question exercised managerial responsibility in the matter, we must determine either that they were in a position to direct Bailey to conduct himself as alleged, or to cause the center to respond as alleged. The center makes no claim that the occupational therapists and the skills trainer had any such managerial responsibility.

The fourth employee, described by the center as "Director of PCA/Fiscal Intermediary Services and former Business

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Manager," was allegedly "a 'management' witness to the [p]laintiff's separation which ultimately led to this [c]omplaint," and "was a central part of [the center's] management team." Being a "witness" to the plaintiff's separation does not establish that the fourth employee was involved in supervising, planning, or directing the events and practices that led to this litigation. Based on the record before the motion judge, there is no basis to conclude that the fourth employee "exercise [d] managerial responsibility in the matter" (emphasis added). Id. at 357. [Note 8]

Subject to the caveat just discussed, none of the four former employees in this case came within a protected category of employee identified by the Messing case while she was employed by the center. Thus, none would have been protected from ex parte contact while an active employee of the center. A change in status from current to former employee does not change the fact that each falls "outside of the rule's scope." Messing, supra at 359. They are not protected by rule 4.2 from ex parte contact by Patriarca's counsel. In making any ex parte contact with these former employees, Patriarca's counsel must, of course, be assiduous in meeting other ethical and professional standards found outside rule 4.2. [Note 9]

The center argues that each of these four employees was

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subject to a written confidentiality agreement and that the kind of information that Patriarca's counsel would seek during ex parte interviews pertains to the practices of the center and is of the type covered by those confidentiality agreements. The text of the agreements, however, shows only that they are designed to protect the consumers' and employees' medical and personal information, having nothing to do with the interests that rule 4.2 was designed to protect. The confidentiality of this information is sufficiently protected if the names of any individual patients are not disclosed. See Reproductive Servs., Inc. v. Walker, 439 U.S. 1307 (1978) (by deleting names of patients from medical records sought in discovery, patients' privacy would be adequately protected); Williams v. Buffalo Gen. Hosp., 28 A.D.2d 777, 778 (N.Y. 1967) (claimant who wished to obtain medical records of patients on specific ward allowed to do so, without necessitating revelation of patients' names).

The question of the general applicability of rule 4.2 to former employees is one we need not address because, on the facts presented, the former employees in question would not have been protected, even while employed, from ex parte contact by rule 4.2. The majority of courts that have decided this issue have concluded that former employees, for the most part, do not fall within the constraints of rule 4.2. [Note 10] This is a question that

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invites input from the organized bar through the rule making process.

The protective order issued by the Superior Court is vacated. The case is remanded to the Superior Court for further proceedings consistent with this opinion.

So ordered.