Messing, Rudavsky & Weliky, P.C. v. President and Fellows of Harvard College

The law firm of Messing, Rudavsky & Weliky, P.C. (Messing) (plaintiff) filed a complaint with the Massachusetts Commission Against Discrimination (Commission) against President and Fellows of Harvard College (Harvard) (defendant), on behalf of its client Kathleen Stanford, a sergeant with the Harvard University Police Department (HUPD). The complaint alleged that the HUPD and its police chief, Francis Riley, discriminated against Stanford on the basis of gender and retaliated against her for previous discrimination complaints she made against the department. As part of its investigation, Messing communicated ex parte with five HUPD employees who were not involved in the alleged discrimination of Stanford. Harvard filed a motion to sanction Messing for the ex parte contact. The Commission found that Messing’s contacts with the HUPD employees violated Rule 4.2 of the Massachusetts Rules of Professional Conduct, but did not issue sanctions. Thereafter, Messing removed the case to superior court. Harvard again filed a motion seeking sanctions for Messing’s ex parte communications. The superior court judge found Messing had violated Rule 4.2, issued sanctions, prohibited the firm from using any information collected from its ex parte communications, and awarded attorneys’ fees. Messing appealed. The Massachusetts Supreme Judicial Court granted certiorari.