Navigating the Investigation Quagmire at Messing and Patriarca

In 2002, the Massachusetts Supreme Judicial Court has confronted the difficult and controversial question of the propriety of a lawyer's factual investigations into an institutional adversary on three separate occasions. In March, the Court issued its opinion in Messing, in June it revised Comment 2 to Rule 4.2 and in November it decided the Patriarca case. The answer to the questions presented on each of these occassions, ones presented to lawyers every day, are more than a narrow interpretation of Rule 4.2 of the Massachusetts Rules of Professional Conduct ("MPRC")1, but broad statements both about how lawyers inform themselves about their clients' problems, and also about corporate privilege and accountability. The authorities and precedent are in disarray and the issue had been the subject of a decade-long controversy between the American Bar Association and the United States Department of Justice. The oral arguments in the two cases attracted overflow crowds, mostly of lawyers and the both cases generated numerous amici briefs.