Mass. Court Clears Path For HUPD Suit

A landmark decision handed down Tuesday by the highest court in Massachusetts will allow a gender discrimination lawsuit against Harvard to finally move forward after years of delay.

The Supreme Judicial Court ruled that a law firm was within its ethical bounds when it interviewed five Harvard University Police Department (HUPD) officers nearly five years ago.

According to attorney Ellen J. Messing ’73, the ruling—which allows lawyers to directly interview employees of corporations represented by opposing counsel—officially gives employees the right to speak for themselves.

The story behind the decision dates back to 1997, when HUPD Sgt. Kathleen Stanford filed a gender discrimination lawsuit against the University after being denied a promotion.

But before Stanford’s trial began, Harvard claimed her lawyers from the firm of Messing, Rudavsky and Weliky had unethically solicited testimonies of five of her HUPD co-workers.

According to David Casey, Harvard’s attorney for the case, Stanford’s lawyers had violated an ethical rule regulating who a lawyer can and cannot talk to in different types of cases.

The court’s ruling set a precedent for Massachusetts which Stanford’s lawyers said will allow lawyers to investigate discrimination claims more freely.

A clear-cut violation of the disputed rule would be if a lawyer representing a woman in a divorce case called the woman’s husband directly, said Wendy Sibbison, an attorney representing Stanford’s lawyers. Instead, the lawyer would have to call the husband’s lawyer.

But when corporations become involved, Sibbison said, it becomes less clear—some corporations have claimed attorneys cannot contact corporation employees without the opposing counsel’s permission.

This interpretation would mean Stanford’s lawyers were not allowed to interview her HUPD co-workers.

Messing said such an interpretation of the rule is illogical.

“Everyone knows boss and workers don’t always see eye to eye on everything,” she said. “It’s very important that the law recognizes that fundamental reality.”

To resolve the dispute, a Superior Court Judge heard Harvard’s complaints and fined Messing, Rudavsky and Weliky $94,000.

But when the Supreme Judicial Court heard the case on appeal, it eliminated both the fine and the rule prohibiting lawyers from talking to employees of a corporation represented by opposing counsel.

For Stanford, this means her case will finally get underway. Depositions are currently slated to begin next month, Casey said.

Casey said he did not think the ruling would significantly impact Stanford’s case against Harvard.

“It could possibly have a negative effect,” Casey said. “But at the end of the day I’m confident that through cross-examination and testimony of other witnesses, the jury will have basis for making an informed and appropriate decision.”

According to Sibbison, the broadest implication of the ruling is the effect it will have on civil rights claims.

“What this means is that lawyers are now able to talk to insider eyewitnesses to corporate wrongdoing without fear of punishment,” Sibbison said.

But Casey said the Supreme Judicial Court’s decision could compromise the formal, established procedure for acquiring testimony.

“With this ruling, I am concerned that the process of litigation is going to be substantially changed, and I fear not for the better,” he said. “It’s going to rely on conversations that take place in an unbalanced setting, where people who can speak on behalf of an institution can do so without benefit of counsel from that institution.”

Regardless, both sides said the ruling will have a major impact on future court cases.

Sibbison said it will influence decisions across the country.

“Our Supreme Judicial Court in Massachusetts is respected all over the country. It’s the oldest one and has a reputation of high intellectual standing,” she said. “Because these battles over this ethical code are going on all over the country, this decision will influence courts in other states.”

HUPD could not be reached for comment yesterday.

—Staff writer Jenifer L. Steinhardt can be reached at steinhar@fas.harvard.edu.