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.
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