Students for Fair Admissions, Inc. v. President and Fellows of Harvard College

Michael Mammone vs. President and Fellows of Harvard College. Middlesex. January 4, 2006. May 12, 2006. Present: Greaney, Ireland, Spina, Cowin, Sosman, & Cordy, JJ. Employment, Discrimination, Termination. Anti-Discrimination Law, Employment, Handicap, Termination of employment. Practice, Civil, Summary judgment. Federal Rehabilitation Act. Massachusetts Commission Against Discrimination. Words, “Qualified handicapped person.” This court concluded that a handicapped employee suffering from bipolar disorder, who was terminated for egregious workplace misconduct that was sufficiently inimical to the interests of his employer that it would have resulted in the termination of a nonhandicapped employee, was not a qualified handicapped person within the meaning of G. L. c. 151B, and therefore was not entitled to the protection of that statute, where the reasoning of Garrity v. United Airlines, Inc., 421 Mass. 55 (1995), which held that non-handicapped and handicapped employees who engage in egregious workplace misconduct are subject to the same standard, was not limited to cases involving misconduct resulting from drug or alcohol dependence, and where no legislative intent to create different protections against discrimination to persons based on the form of their disability could be discerned. [665-680] Greaney, J., dissenting. Civil action commenced in the Superior Court Department on March 26, 2003. The case was heard by Ralph D. Gants, J., on a motion for summary judgment, and entry of judgment dismissing the plaintiff s complaint was ordered by Raymond J. Brassard, J. The Supreme Judicial Court on its own initiative transferred the case from the Appeals Court. Betsy L. Ehrenberg {.Rebecca G. Pontikes with her) for the plaintiff. John P Coakley {Richard J. Riley with him) for the defendant. The following submitted briefs for amici curiae: Beverly I. Ward & John Lozada for Massachusetts Commission Against Discrimination. Susan Stefan for Center for Public Representation & others. Cordy, J. On March 7, 2003, Harvard University terminated the seven-year employment of Michael Mammone. Mammone, who suffers from bipolar disorder and claims that he was terminated due to his mental disability, brought suit against the President and Fellows of Harvard College (university) under the Commonwealth’s employment discrimination statute, G. L. c. 151B, § 4 (16), and Equal Rights Act, G. L. c. 93, § 103. Relying principally on this court’s decision in Garrity v. United Airlines, Inc., 421 Mass. 55 (1995) (Garrity), a judge in the Superior Court granted the university’s motion for summary judgment, concluding that, because of his misconduct in the workplace, Mammone could not reasonably expect to prove that he was a “qualified handicapped person,” a required showing for protection under both statutes. A “qualified handicapped person” is one “who is capable of performing the essential functions of a particular job, or who would be capable of performing the essential functions of a particular job with reasonable accommodation to his handicap.” G. L. c. 151B, § 1 (16). In granting summary judgment, the judge found that the workplace misconduct that led to Mam-mane’s termination was egregious and sufficiently inimical to the interests of his employer that it would have resulted in the termination of a nonhandicapped employee. In these circumstances, the judge concluded, it would be impossible for Mammone to show that he was “capable of performing the essential functions” of his job. Mammone appealed, and we transferred the case to this court on our own motion. Mammone contends that the reasoning of Garrity — that a handicapped employee who engages in egregious workplace misconduct can be held to the same standard as a nonhandicapped employee who engages in similar misconduct — should be strictly limited to cases involving misconduct resulting from drug or alcohol dependence (as opposed to other handicaps). We conclude otherwise. Nothing in the language we used in Garrity suggests that our holding was meant to be so narrow, and we do not discern any legislative intent to create a distinction that would provide different protections against discrimination to persons suffering from one form of handicap (alcoholism) than the protections provided to persons suffering from other disabilities. Because we conclude that Garrity applies to all employment discrimination cases brought under G. L. c. 151B, § 4 (16), and G. L. c. 93, § 103, regardless of the type of handicap underlying the workplace misconduct, we affirm the grant of summary judgment. 1. Factual background. We recount the facts in their light most favorable to Mammone. See, e.g., Joslyn v. Chang, 445 Mass. 344, 345 (2005); Augat, Inc. v. Liberty Mut. Ins. Co., 410 Mass 117, 120 (1991), citing Mass. R. Civ. P. 56 (c), 365 Mass. 824 (1974). Mammone worked as a staff assistant at the university’s Peabody Museum (museum) from January, 1996, until his termination on March 7, 2003. He was usually stationed at the museum’s receptionist desk in the main lobby. Among other responsibilities, Mammone was required to direct individual visitors and tour groups to destinations inside the museum, as well as answer any questions such guests might have. In this position, Mammone had significant contact with the public. Mammone suffers from bipolar disorder. This mental disease manifests itself in occasional periods of mania (of which paranoia, agitation, hyperactivity, and irrationality are symptoms) and occasional periods of depression. Although Mammone was diagnosed with bipolar disorder in 1987, there is no evidence that, previous to the incidents at issue in this case, his mental disease ever negatively affected his ability to perform his workplace duties. Indeed, there is scant evidence that any of Mammone’s supervisors or coworkers knew of Mammone’s health problems before the events in question. During the course of his employment, Mammone received both annual salary increases and positive formal reviews from supervisors. In the middle of August, 2002, Mammone apparently experienced a manic episode. This episode led to workplace misconduct that eventually resulted in his termination. On August 18, Mammone established a website to decry what he believed were the low wages the university pays some of its employees. On August 20, while on duty at the museum, he began to distribute flyers summarizing and advertising his website. He also engaged coworkers in loud and animated conversations regarding his website and its content. He frequently used his personal laptop computer to access and update his website during his shift. According to his own testimony, Mammone would sing along with, clap to, and dance to protest songs from his website while stationed at the receptionist desk. On August 22, Mammone’s supervisor, Michele Piponidis, informed him, both orally and in writing, that he should not use his laptop computer at work. The next day Mammone sent an electronic mail message to Piponidis refusing to follow her instructions. He continued to bring his laptop computer to work, and to use it in the manner described above, until the date of his termination. Mammone’s manic episode appeared to reach its zenith between August 29 and September 4. On August 29, when he could not find the keys to his house, he began to believe that a conspiracy had formed against him. That night, Mammone stayed at a local YMCA. However, because he believed persons at the YMCA were also involved in the conspiracy, he telephoned the police the next morning. Although Mammone thereafter was brought to a hospital for overnight examination, he did not meet the criteria for involuntary civil commitment and was thus released at his own insistence on August 31. On September 3, subsequent to the Labor Day holiday, Mammone returned to work, his mania only worsening. That day, a staff member of the museum’s public programs office explained to Piponidis that Mammone’s “belligerent attitude is not only affecting [the museum’s] staff, but also visitors to the museum.” That night, Mammone was contacted by his union representative, who left him with the impression that Piponidis was seeking to meet with Mammone and a representative of the university’s office of labor and employee relations for the purpose of terminating his employment. On the morning of September 4, 2002, Mammone arrived at work in brightly colored, traditional East Indian dress and adorned with necklaces, bracelets, and rings. While at his desk, he telephoned the police, his mother, his sister, and an attorney with the American Civil Liberties Union (ACLU) and spoke to each person “very loudly.” When Piponidis approached him and asked him to join her in a private conference room, Mammone refused. He dismissively flicked his hand at her, saying, “Psst, get away from me, you’re evil.” Piponidis left the lobby and returned with both Mary Reynolds, the museum’s human resources administrator, and two university police officers. The officers informed Mammone that Piponidis and Reynolds wanted him to leave the museum and attend a meeting at the university’s office of labor and employee relations the following day. When Mammone refused the officers’ request, they explained that if he did not leave after five warnings, he would be arrested for trespassing. After the officers’ second warning, Mammone left his desk and sat on the floor in the middle of the lobby. After another three warnings, the officers handcuffed Mammone and placed him under arrest. Because he refused to move, the officers were forced to drag Mammone from the museum. During his arrest, he was told by the police not to return “here.” Mammone was charged with trespassing and disorderly conduct and arraigned in the Cambridge Division of the District Court Department. Immediately after his arraignment, Mammone walked back to the museum area to assure his friend, who had witnessed the incident, that he was unharmed. Mammone waited outside the museum for the end of his friend’s shift. Then, before the end of the workday, Mammone entered the lobby of a second university museum, the Museum of Natural History, which was adjacent to and internally connected with the museum. Mammone did not believe that the arresting officer’s admonition not to return “here” included any location other than the museum itself. Using a telephone in the lobby of the Museum of Natural History, Mammone telephoned the ACLU. During this conversation, Piponidis saw Mammone, approached him, and instructed him to leave the building. Mammone ended his telephone call, left the telephone booth, pointed at Piponidis (and Reynolds, who had joined Piponidis in the lobby close to the telephone booth), and stated, “You fucking whack bitches are going down.” Mammone then walked past the women and left the building. Reynolds followed Mammone and hailed a nearby university police officer, who told Mammone to leave the university’s campus. On that same day, after Mammone’s arrest, but before the confrontation in the Museum of Natural History, Piponidis had written and sent to Mammone a “final written warning,” see note 15, supra, summarizing his problematic workplace misconduct and indicating that this misconduct had “become progressively more and more disruptive” and was “completely unacceptable.” The next day, September 5, Piponidis sent a superseding letter to Mammone, informing him that his return to the museum after his arrest, his subsequent conduct toward Piponidis and Reynolds, and the conduct described in the previous letter was grounds for immediate discharge and that this discharge was “effective at the end of business . . . September 4, 2002.” At some point over the next few days, Mammone’s union representative convinced officials at the university not to “process [Mammone’s] termination immediately so that [he] could apply for short-term disability [benefits].”, Piponidis then wrote a third letter to Mammone which superseded the September 5 letter, confirming that the university would “delay the effective date of [his] termination ... to allow [him] an opportunity to apply for Short-term Disability . . . benefits.” The letter explained that Mammone’s employment would terminate “effective the day the . . . benefits end.” Mammone first applied for disability benefits on September 9, 2002. Based on a September 12 examination, Dr. Irving Allen, a psychiatrist at the university’s health services, informed the university’s disability claims unit that Mammone could not work due to a bipolar disorder and recurrent depression, and that this incapacity would likely last between thirty and ninety days. Mammone’s application was granted on September 23. On October 22, Dr. Allen recommended another sixty days of disability benefits, explaining that Mammone’s “irritability . . . and agitation persist.” On December 12, Dr. Allen requested that Mammone be given an additional sixty days of benefits, noting that, while Mammone was “making significant improvement,” he was “not stable enough to return to work.” A similar request was successfully made by Dr. Allen on January 30, 2003. In clinician notes dated February 14, 2003, Dr. Allen reported marked improvement, but added that Mammone was “feeling depressed” and that “[t]here are still tinges of mania . . . .” On March 5, 2003, Mammone’s disability benefits expired. On March 7, 2003, his termination became effective. Although a jury could have found that Mammone was well enough to return to work on that date, there was no evidence that Dr. Allen or anyone else ever informed the university that this was the case. On December 9, 2002, approximately three months after Mammone began receiving short-term disability benefits, an attorney informed the university in writing that she had been retained to represent Mammone in a discrimination action against the university. Her letter noted that the university had offered Mammone “[n]o reasonable accommodation, such as time off in which to get better . . . .” 2. Discussion, a. Standard of review. A moving party will prevail on summary judgment, where the party opposing the motion bears the burden of proof at trial, only if the moving party demonstrates, by reference to the material described in mie 56 (c), unmet by countervailing materials, that the nonmoving party has no reasonable expectation of proving an essential element of the case. Kourouvacilis v. General Motors Corp., 410 Mass. 706, 716 (1991). It is sufficient that the moving party demonstrate that “proof of [a required] element is unlikely to be forthcoming at trial.” Flesner v. Technical Communications Corp., 410 Mass. 805, 809 (1991). b. The Garrity decision. In Garrity, a terminated United Airlines customer service representative, Mary Garrity, brought a discrimination claim against her former employer under G. L. c. 15IB. We affirmed the grant of summary judgment in favor of the defendant airline because we concluded that Garrity could not reasonably expect to prove that she was a qualified handicapped person, as defined in G. L. c. 151B, § 1 (16). Id. at 63. Because establishing that she was “qualified for the position from which she was fired” is a requirement of a prima facie case under G. L. c. 151B, Garrity’s inability to do so was fatal to her claim. See id. at 60, 63. Garrity suffered from alcoholism. As part of her employment, she was asked to distribute “chits” to passengers, which could be exchanged for free drinks during flight. When some passengers declined the chits, Garrity, irresistibly compelled by her disease, kept them for herself. After her shift, she boarded a United Airlines flight, paying a significantly reduced employee fare. On the flight, Garrity exchanged the chits for free drinks, “became intoxicated and began drawing attention to herself and to the fact that she was a United Airlines employee.” Id. at 57. Garrity “demanded excessive service and attention” and complained to and in front of passengers “about how United ‘screws us.’ ” Id. United Airlines terminated Garrity for “violating company policies by accepting ‘drink chits’ from customers, using those chits while flying on a United pass . . . and for becoming intoxicated” while on the flight. Id. at 59. In affirming summary judgment, we reasoned that a disabled individual cannot be a qualified handicapped person “if he commits misconduct which would disqualify an individual who did not fall under the protection of the statute” (i.e., a non-handicapped employee). See id. at 62-63, quoting Wilber v. Brady, 780 F. Supp. 837, 840 (D.D.C. 1992). We noted that “[n]othing in c. 151B suggests a legislative intent that a lower standard of qualifying conduct should apply to handicapped employees than applies to those without handicap.” Garrity, supra at 63. Garrity confirmed the commonsense notion that an employee is not “qualified” for a particular job — i.e., cannot perform the essential functions of that job, even with reasonable accommodation — if he or she takes part in “egregious misconduct” in the workplace. See id. at 62-63, quoting Little v. Federal Bur. of Investigation, 1 F.3d 255, 258-259 (4th Cir. 1993) (“ ‘[A]n employer . . . must be permitted to terminate its employee on account of egregious misconduct, irrespective of whether the employee is handicapped.’ ... [A] handicapped employee who engages in conduct significantly inimical to the interests of his employer and in violation of the employer’s rules ... is not a ‘qualified handicapped person’ within the meaning of G. L. c. 151B”). c. Applicability of Garrity to the present case. Mammone’s workplace misconduct, which took place over the course of two weeks, was at least as egregious and inimical to his employer’s interest as was the misconduct for which Garrity was terminated. Mammone intentionally disregarded his supervisor’s instructions regarding the use of his personal computer during work. Instead of acting as the professional face of the museum to visitors, he created numerous unprofessional disturbances for the public to witness at the exact location where they would decide whether to purchase admission to the museum. He exhorted his coworkers to do the same. During his shift, Mammone distributed flyers summarizing and advertising a website critical of the university and his supervisors. Certainly this misconduct was as inimical to his employer’s interests as were Garrity’s complaints to customers and employees about United Airlines, her demands for excessive service and attention from flight attendants, and her drawing of attention to herself as an unprofessional United Airlines employee. Mammone’s misconduct on September 4, however, was by far the most egregious of his actions. First, he abusively dismissed his supervisor’s request to meet with her to discuss his behavior. Then he refused a request made by his supervisor and the museum human resources administrator to leave the museum and attend a meeting at the university’s office of labor and employee relations the next day. Finally, he refused five lawful police orders to leave the premises, chose to become a trespasser, and forced the police to create a spectacle by physically carrying him out of the museum. Later that day, on his return to the museum area, Mammone used objectively abusive, threatening, and sexually derogatory language to his supervisor and the human resources administrator, violating all reasonable standards expected at a place of business and public accommodation. Cf. Hamilton v. Southwestern Bell Tel. Co., 136 F.3d 1047, 1052 (5th Cir. 1998) (Americans with Disabilities Act [ADA] does not protect employee’s “emotional or violent outbursts,” such as “get that f_ing finger out of my face” or “[y]ou f_ing bitch!,” even if such misconduct attributable to employee’s posttraumatic stress disorder); Maes v. Henderson, 33 F. Supp. 2d 1281, 1283, 1286, 1289 (D. Nev. 1999) (where “Postal Service dem

Messing, Rudavsky & Weliky, P.C. vs. President and Fellows of Harvard College. Suffolk. November 8, 2001. - March 19, 2002. Present: Greaney, Ireland, Spina, Cowin, Sosman, & Cordy, JJ. Supreme Judicial Court, Superintendence of inferior courts, Practice of law. Attorney at Law, Attorney-client relationship, Canons of ethics, Communication with organization represented by counsel. A law firm was entitled to review under G. L. c. 211, § 3, of a Superior Court judge’s order sanctioning the firm for violations of Mass. R. Prof. C. 4.2, and its predecessor, S.J.C. Rule 3:07, Canon 7, DR 7-104 (A) (1), where little guidance currently existed for attorneys in the area of professional responsibility at issue, resolution of the issue would have widespread implications for attorneys through the Commonwealth, and the issue might not be presented in the ordinary course of litigation. [350-351] Discussion of the application of Mass. R. Prof. C. 4.2, prohibiting an attorney from communicating with a represented party in the absence of that party’s attorney, to a situation in which the attorney’s ex parte communication is to the employees of an organization represented by counsel. [351-354] Discussion of various judicial interpretations in other jurisdictions that have adopted the same or similar versions of Mass. R. Prof. C. 4.2, prohibiting an attorney from communicating with a represented party in the absence of that party’s attorney, as to whether their own versions of the rule are properly linked to the admissions exception to the hearsay rule, and as to the precise scope of the rule as applied to organizations. [354-356] This court interpreted Mass. R. Prof. C. .4.2, prohibiting an attorney from communicating with a represented party in the absence of that party’s attorney, to ban contact only with those employees of an organization, when that organization is the represented party, who have the authority to commit the organization to a position regarding the subject matter of the attorney’s representation, who exercise managerial responsibility in the matter, or whose act or omission in connection with the matter could be imputed to the organization for purposes of civil or criminal liability. [356-360] Cordy, J., concurring in part and dissenting in part. A law firm did not violate Mass. R. Prof. C. 4.2, prohibiting an attorney from communicating with a represented party in the absence of that party’s attorney, where the five employees of a represented organization interviewed by the law firm were not involved in directing the litigation at bar or authorizing the organization to make binding admissions; where the employees were not employees whose act or omission in connection with the matter could be imputed to the organization for purposes of civil or criminal liability, but rather were mere witnesses to the events that occurred; and where none of the employees had managerial responsibility on behalf of the organization with regard to the subject of the representation. [360-361] Cordy, J., concurring in part and dissenting in part. Civil action commenced in the Supreme Judicial Court for the county of Suffolk on May 17, 2001. The case was reported by Spina, J. Wendy H. Sibbison for the plaintiff. David C. Casey (Scott Moriarty with him) for the defendant. The following submitted briefs for amici curiae: John Leubsdorf, of New York, for Teachers of Professional Responsibility. Jonathan J. Margolis & Paula A. Brantner for National Employment Lawyers Association. Mary T. Sullivan & Donald J. Siegel for AFL-CIO & others. Elaine R. Jones, Theodore M. Shaw, Norman J. Chachkin, James L. Cott & Robert H. Stroup for NAACP Legal Defense & Educational Fund, Inc., & others. William C. Newman & Sarah R. Wunsch for American Civil Liberties Union of Massachusetts. Luz Arevalo, Monica Halas, Carol R. Mallory, Allan G. Rodgers & Ernest Winsor for Greater Boston Legal Services & another. Arthur G. Telegen, Jennifer W. Corinis, Richard Alfred, Sey-farth Shaw & Cynthia Amara for Boston Area Management Attorneys Group & another. Thomas F. Reilly, Attorney General, Laura Maslow-Armand, Pamela L. Hunt & Hilary Weinert Hershman, Assistant Attorneys General, for the Attorney General. Cowin, J. 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. 1. Facts and procedural history. From the stipulated facts, we distill the following. In August of 1997, MR&W filed a complaint against the President and Fellows of Harvard College (Harvard) with the Massachusetts Commission Against Discrimination (commission) on behalf of its client, Kathleen Stanford. Stanford, a sergeant with the Harvard University police department (HUPD), alleged that Harvard and its police chief, Francis Riley, discriminated against her on the basis of gender and in reprisal for earlier complaints of discrimination. MR&W represented Stanford, and Harvard was represented before the commission by in-house counsel, and thereafter by a Boston law firm. Following the institution of the suit, MR&W communicated ex parte with five employees of the HUPD: two lieutenants, two patrol officers, and a dispatcher. Although the two lieutenánts had some supervisory authority over Stanford, it was not claimed that any of the five employees were involved in the alleged discrimination or retaliation against her or exercised management authority with respect to the alleged discriminatory or retaliatory acts. 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 mle 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. 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. 2. Jurisdiction. As a threshold matter, Harvard asserts that MR&W is not entitled to relief under G. L. c. 211, § 3. General Laws c. 211, § 3, provides: “The supreme judicial court shall have general superintendence of all courts of inferior jurisdiction to correct and prevent errors and abuses therein if no other remedy is expressly provided . . . .” G. L. c. 211, § 3. This power of review is discretionary with the court and will be “exercised only in ‘the most exceptional circumstances.’ ” Planned Parenthood League of Mass., Inc. v. Operation Rescue, 406 Mass. 701, 706 (1990), quoting Costarelli v. Commonwealth, 374 Mass. 677, 679 (1978). 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 othat MR&W has failed to demonstrate either of these requirements, 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. 3. Interpretation of Rule 4.2 of the Massachusetts Rules of Professional Conduct. 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 “preserving] the mediating role of counsel on behalf of their clients . . . protecting] 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, 16 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 lawyers 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. 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.” 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 couit 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.” 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 III. 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 [cjourt 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 rale 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., 128 111. 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