Do the Massachusetts ethics rules govern whether a Massachusetts-licensed federal government lawyer may interview a corporate party's former employees in litigation before a federal agency outside Massachusetts?
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This page answers the general question as of 2002. Ezel answers yours: whether it's allowed on your facts, under the current Massachusetts Rules of Professional Conduct, with citations.
Plain-English summary
A federal government lawyer licensed only in Massachusetts was litigating against a corporation before a federal agency located outside Massachusetts, where he was authorized to practice. He wanted to interview the corporation's former employees and asked whether Massachusetts Rule 4.2 governed that conduct. The agency had no code of professional conduct of its own.
The committee treats this as a choice-of-law question: would the Supreme Judicial Court apply the Massachusetts rules to conduct relating to litigation in another jurisdiction? It notes that when the SJC adopted the Massachusetts rules effective January 1, 1998, it declined to adopt Model Rule 8.5(b)'s detailed choice-of-law provisions, leaving the common law of conflict of laws in place. The committee observes that, although that common law can be complex, this inquiry is not difficult: quoting Hazard and Hodes, courts "universally impose their own codes of conduct and rules of court upon all litigants and their representatives," and both in-state and pro hac vice lawyers must obey the forum's rules. It reasons that any other result would be "bizarre," producing situations where lawyers on the same side, or opposing sides, could or could not conduct the same interview depending solely on where each was admitted.
The committee declines to say what law would in fact govern the lawyer's conduct, since it cannot speak for an out-of-state agency. It notes the McDade Amendment, 28 U.S.C. sec. 530B, subjects government attorneys to the state and local federal rules where they perform their duties, but that by its implementing regulation (28 CFR 77.2) it does not apply to federal agency lawyers; the agency could, however, apply it by analogy or craft its own common law of professional responsibility. The committee limits its answer to the precise question asked, expressly not addressing whether the Massachusetts rules would reach out-of-state transactional conduct, conduct in a matter that might later become litigation, or conduct bearing on a lawyer's fitness to practice.
In practice
Under this opinion, where a Massachusetts-licensed lawyer is litigating before an out-of-state federal agency that has no conduct code of its own, the committee concludes the Supreme Judicial Court would not apply Massachusetts Rule 4.2 to govern interviews of an opposing party's former employees. Per the opinion, the controlling principle is that the litigation forum's own rules govern all litigants and their counsel, and Massachusetts left that common-law choice-of-law approach in place when it declined to adopt Model Rule 8.5(b). The committee expressly confined its conclusion to the question asked and did not opine on out-of-state transactional conduct or on conduct that might bear on a lawyer's fitness.
Common questions
Q: Do Massachusetts ethics rules follow a Massachusetts lawyer into out-of-state litigation?
A: Not as to this conduct. The committee concludes the Supreme Judicial Court would apply the common-law choice-of-law rule that the litigation forum's own conduct rules govern, rather than extending Massachusetts Rule 4.2 to the out-of-state proceeding.
Q: Why does Massachusetts not have a clear choice-of-law rule here?
A: Because, as the committee notes, the SJC declined to adopt Model Rule 8.5(b) when it adopted the Massachusetts rules in 1998, leaving the common law of conflict of laws to govern out-of-state conduct.
Q: Does the McDade Amendment supply the answer for a federal agency lawyer?
A: The committee notes that by 28 CFR 77.2 the McDade Amendment (28 U.S.C. sec. 530B) does not apply to federal agency lawyers, though the agency could apply it by analogy or develop its own conduct rules.
Background and rules framework
The opinion interprets Mass. R. Prof. C. 4.2 (communication with a represented person) only to determine whether it reaches the conduct at issue, and resolves that through choice-of-law analysis. It notes that Massachusetts, unlike the Model Rules, did not adopt Model Rule 8.5(b)'s choice-of-law provision, leaving common-law conflict-of-laws principles in place. The rules correspond to the Model Rules of the same numbers.
Citations and references
Rules of Professional Conduct:
- Model Rule 4.2 / Mass. R. Prof. C. 4.2 (communication with a represented person)
- Model Rule 8.5 / Mass. R. Prof. C. 8.5 (Massachusetts declined to adopt Model Rule 8.5(b)'s choice-of-law provision)
Statutes and regulations:
- 28 U.S.C. sec. 530B (McDade Amendment)
- 28 CFR 77.2 (McDade Amendment does not apply to federal agency lawyers)
Other authorities:
- Geoffrey C. Hazard & W. William Hodes, The Law of Lawyering (3d ed.), at 66-8 (forum imposes its own conduct rules on all litigants)
See also
Source
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