[textbook]Traversing the Ethical Minefield Problems, Law, and Professional Responsibility by Susan R. Martyn (z-lib.org)(1) (1)

G. Communication with Unrepresented and Represented Clients and
Nonclients Model Rules 4.1, 4.2, 4.3, 5.3 RLGL §§ 99-103
Problems
14-9. Negotiations have been going on for months, with Martyn & Fox representing
Seller. Buyer’s lawyer has been obstreperous, to say the least. Then Martyn receives a call
from the potential buyer: “With my lawyer involved, we’ll never reach agreement. Let’s talk
— just you and me. I don’t need a lawyer.” What if buyer announces, “I fired my lawyer”?
14-10. Martyn & Fox’s client is totally frustrated. “I’ll bet our overly generous
settlement offers are not even being passed on to the plaintiff by that shyster lawyer of his.
Why don’t you just call the plaintiff up yourself and tell him our latest?” What if the client
simply asks us to email the lawyer on the other side, with a copy to the plaintiff? What if
our client asks us to write a letter for the client to send to the plaintiff telling him that he is
a fool not to settle? How about preparing a contract that the client can get the adversary to
sign?
14-11. An Assistant U.S. Attorney gets a call from a defendant whose trial is now
scheduled in six weeks. “I can’t stand it,” defendant exclaims, “That guy [from Martyn &
Fox] the company hired to represent me couldn’t care less about my case. All he wants is to
make sure the company gets off scot-free. Can we talk? I’ll meet you at Local Pub at 11:00
P.M., OK?”
Messing, Rudavsky & Weliky, P.C. v. President & Fellows of Harvard College
764 N.E.2d 825 (Mass. 2002)
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 violation of Mass. R. Prof. C. 4.2 . . .
[which] prohibits 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. . . .
. . . From the stipulated facts, we distill the following. In August of 1997, MR&W filed
a complaint against 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 lieutenants had some supervisory authority
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