Retaliation Cases

Eric Piderit vs. Siegal & Sons Investments, Ltd. No. 98-P-1898. Middlesex. October 17, 2000. - May 30, 2002. Present: Armstrong, C.J., Beck, & Rapoza, JJ. Workers' Compensation Act, Claim. Employment, Termination, Retaliation. In an action by an employee alleging unlawful discharge in violation of G. L. c. 152, § 75B(2), prohibiting retaliation for exercising rights under the Workers’ Compensation Act, in which the employee’s discharge occurred shortly after he told his employer that he had been injured, but several months before he filed a claim for workers’ compensation benefits, the judge properly ordered summary judgment for the employer, where the employee failed to show that his discharge was related to workers’ compensation. [3-6] Civil action commenced in the Superior Court Department on April 12, 1996. The case was heard by Martha B. Sosman, J., on a motion for summary judgment. Howard I. Rosen for the plaintiff. Stanley W. Wheatley for the defendant. Armstrong, C.J. This appeal comes to us following the allowance of a motion for summary judgment brought by the defendant, doing business as Marty’s Liquors, and the ensuing dismissal of the plaintiff’s claim that he was discharged unlawfully. The discharge, he claimed, violated G. L. c. 152, § 75B(2), which prohibits retaliation for exercising rights under the Workers’ Compensation Act. Viewing the facts alleged in the summary judgment materials in the plaintiff’s favor, as we must at this stage, we take the facts to be as next stated. The plaintiff was one of two “store managers” at Marty’s Liquors in Allston. On Tuesday evening, August 1, 1995, the plaintiff felt shooting pains in his left knee while lifting kegs of beer. He mentioned the episode to coemployees. Despite a swollen knee, he continued working the remaining days of the week. At a company picnic on Sunday, August 6, he stopped playing softball due to pain in the knee. The next day, with the grudging approval of Lewis Siegal, his supervisor (and part owner), he left work before his shift ended to see a doctor at the company’s health coverage provider, Harvard Community Health. The doctor advised the plaintiff to stay out of work for several days and referred him to an orthopedic specialist who, on Wednesday, August 9, said he should remain out of work for ten days. Lewis Siegal, when so advised, was irritated and told the plaintiff to call “Marty” Siegal (Lewis’s father and company president). Marty said ten days was a long time, that he would have to replace the plaintiff, and asked the plaintiff to get his Allston store keys back to the store. The plaintiff understood the import of the conversation to be that he was discharged, and the judge, for purposes of ruling on the motion for summary judgment, necessarily took that to be the fact. The plaintiff filed a claim on August 29, just over three weeks later, for benefits under the company’s short term disability benefits insurance policy. The store processed the application, but the claim was rejected by the insurer. On the application form the plaintiff indicated for the first time that he intended to file a claim for workers’ compensation benefits. The plaintiff filled out a claim form for such benefits on October 21, claim-ing total disability. The form was not filed with the Department of Industrial Accidents until December 21, after his claim for short term disability benefits had been rejected by the disability insurer. The department ultimately awarded partial disability benefits from August 12 to December 4, the final day the plaintiff claimed to have been disabled. The basis on which the judge ordered summary judgment for the defendant was this: At the time of the plaintiff’s discharge, the judge ruled, the plaintiff as matter of law had not “exercised a right afforded by [chapter 152],” as required by § 75B(2). The discharge was on August 9, but no claim for workers’ compensation benefits was filed with the Department of Industrial Accidents until several months later; and while it is true that § 10(1) of the chapter does not permit such a claim to be filed earlier than the thirtieth day after the onset of the dis-ability, this discharge occurred on the second day of the dis-ability, well before the defendant was required even to file a notice of injury with the insurer or the department. See c. 152, § 6. The judge ruled that merely telling an employer that one has been injured is not an exercise of a right under the statute; and the judge with some plausibility ruled that, “[a]s a matter of statutory interpretation, § 75B(2) does not prevent actions against workers on account of their injuries, but only protects them from retaliation for having ‘exercised a right afforded by this chapter.’ ” The judge reached the right result in dismissing the action, although we rest our affirmance on a narrower ground than she. The argument raised by the plaintiff against the judge’s reasoning turns on the incentive it provides for preemptive discharges of injured employees, before they have had a chance to make claims for workers’ compensation. Such a discharge might not avoid the particular claim, as the injury would normally remain compensable regardless of the discharge (this case is an illustration); but the injury may be thought by the employer to leave the employee vulnerable to future injuries, if it leaves a chronic weakness (as in a back or a knee, for example) and hence heightened exposure to future workers’ compensation claims. The practical effect of § 75B(2) as construed by the judge would thus be (so the plaintiff argues) to make injured workers more vulnerable to discharge of the preemptive variety, contrary to the manifest intent of the Legislature. Many States have statutes comparable to § 75B(2), and their judicial decisions have often adopted variations of the plaintiff’s argument. Some have done so by ruling that an injured employee has exercised a right afforded by the statute if he has filled out the notice-of-injury form and been paid benefits as a result, even though he has not filed a claim with the workers’ compensation board. See, e.g., Overnight Transp. Co. v. Gad-dis, 793 S.W.2d 129, 130-132 (Ky. App. 1990); Texas Steel Co. v. Douglas, 533 S.W.2d 111, 114-117 (Tex. App. 1976). Other decisions have treated the act of filling out the notice-of-injury form as constituting the requisite exercise of a right, and still others, going further, have treated the employee’s act of merely telling the employer that he has been injured as “exercis[ing] a right afforded by [the State’s § 75B(2) counterpart].” See, e.g., Worsham Steel Co. v. Arias, 831 S.W.2d 81, 83-85 (Tex. App. 1992). Still other decisions recognize a cause of action for retaliatory discharge although the discharge preceded any action that could be characterized as an exercise of a right under the statute; but in such cases there is generally independent evidence that the employer’s motive for the discharge was to prevent claims from being filed under the statute. See, e.g., Wolcowicz v. Inter-craft Indus. Corp., 133 Ill. App. 3d 157, 160 (1985) (two days after suffering second injury in six months, the plaintiff was discharged and given one year’s severance pay for signing waiver of all claims against the defendant); Wright v. Fiber Indus., Inc., 60 N.C. App. 486, 487, 488-491 (1983) (while in the hospital, the plaintiff was visited by employees who told him falsely that the company had filed a workers’ compensation claim for him that had been denied and then, after his discharge, told him that he had no rights except under the employer’s private insurance policy, and, finaHy, tried unsuccessfuUy to get the plaintiff to sign a document acknowledging that he had fully recovered from his injury before he had resumed work); Abels v. Renfro Corp., 335 N.C. 209, 216 (1993) (evidence permitted inference that the employer, having earlier escaped a workers’ compensation claim by continuing the plaintiff at full pay for performing light duties, concluded upon the plaintiff’s second injury and upon learning that her doctor was recommending that she take a one-month leave of absence, that the best course was to discharge the plaintiff to forestaU an anticipated filing of a claim). Indeed, the only Massachusetts case that has been called to our attention appears to be of this variety: Ourfalian v. Aro Mfg. Co., 31 Mass. App. Ct. 294, 296-297 (1991) (although plaintiff had filed no compensation claim by time of discharge, the complaint aUeged that the employer had fired several other employees for filing such claims). In the present case, however, we need not decide whether the plaintiff had or had not exercised a right under G. L. c. 152 when he was discharged or whether a showing that he had exercised such a right was a precondition for making out a case under § 75B(2). Here, the plaintiff fails for want of any showing in the summary judgment materials that his discharge was related to workers’ compensation. On the evidence presented, a conclusion that the defendant discharged the plaintiff to avoid a workers’ compensation claim would be based solely on the fact that the plaintiff was discharged shortly after sustaining an injury. In this respect the case before us is like Horton v. Miller Chemical Co., 776 F.2d 1351, 1356 (7th Cir. 1985), cert. denied, 475 U.S. 1122 (1986), a case decided under Illinois law, in which the plaintiff, the court decided, had shown no more than that he was injured and that the employer had discharged him ostensibly for the resultant inability to meet the employer’s expectations for the job. The evidence offered by this plaintiff at summary judgment was, if anything, even more attenuated than that shown in the Horton case. We agree with the trial judge that, in these circumstances, recognizing the plaintiff’s showing as sufficient would in practical effect convert § 75B(2) into a prohibition on discharging injured employees. The wording of § 75B(2) does not support such a reading. Judgment affirmed. This point is sharply disputed by Marty Siegal, who maintains that, for such a long absence, and particularly because the ten days would lead up to the plaintiff’s long-scheduled vacation trip to Venezuela, Marty himself would have to fill in temporarily for the plaintiff and would need the plaintiff’s store keys. No discharge was intended. Marty Siegal pointed out that the company went on paying the plaintiff’s health and dental coverages and disability insuranee premiums well into November, when it finally concluded that the plaintiff had no intention of returning. Thereafter, the plaintiff received thirty weeks of unemployment benefits. In relevant part, § 75B(2) reads: “No employer . . . shall discharge, refuse to hire or in any other manner discriminate against an employee because the employee has exercised a right afforded by this chapter . . . .” In relevant part, § 75B(1) protects, as a qualified handicapped person under G. L. c. 151B, “an employee who has sustained a work-related injury and is capable of performing the essential functions of a particular job, or who would be capable . . . with reasonable accommodations . . . .” The judge observed that if the plaintiff had a viable cause of action under subsection (1), he waived it by failing to pursue the administrative remedy (before the Massachusetts Commission against Discrimination) afforded for such violations. Cf. Hallgren v. Integrated Financial Corp., 42 Mass. App. Ct. 686 (1997).

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