(concurring in part and dissenting in part). I concur that the financial sanction levied against Messing, Rudavsky & Weliky, P.C., must be set aside, but do so for reasons different from those set forth in the court’s opinion. I disagree with the court’s interpretation of Mass. R. Prof. C. 4.2, 426 Mass. 1402 (1998), and its comment that became effective on January 1, 1998, and therefore dissent from its holding in that regard.
Rule 4.2. Whatever the merits of the interpretation that the court today gives rule 4.2, it is not consistent with the rule and the comment that we adopted in 1998, or its predecessor, S.J.C. Rule 3:07, Canon 7, DR 7-104 (A) (1), as appearing in 382 Mass. 786 (1981) (DR 7-104 [A] [1]), and creates a troubling inconsistency in the way we treat organizations in our adversary system.
I begin with the premise that organizations have the right to be represented effectively by counsel to the same extent as individuals, while recognizing that organizations act through agents and employees, thus complicating the question of who the represented party is when it becomes, or is about to become, the subject of a legal proceeding. In this context the answer to the question has significant implications for defining and establishing the parameters of the attorney-client relationship, and for determining whether and to what extent actions and statements of individuals will be imputed to it in the legal proceedings. The answer to the same question also informs the meaning of the provision in our code of professional conduct that prohibits attorneys from, having ex parte communication with opposing parties (or persons) they know to be represented by counsel (the no-contact rule), the essence of DR 7-104 (A) (1) and rule 4.2.
It strikes me that the answer ought to be as close to being a single and consistent one as we can make it. This is particularly *363critical in the context of determining on the one hand whose actions and statements will be attributed to the organization in litigation, and on the other hand who in the organization is represented by counsel for purposes of the no-contact rule now embodied in rule 4.2. The purpose of the no-contact rule, after all, is to ensure the effective assistance of counsel by preserving counsels’ mediating role on behalf of their clients, protecting clients from overreaching by counsel for adverse interests, and protecting the attorney-client relationship by preventing clients from making ill-advised statements without the advice of their attorney. There are few responsibilities more central to the effective representation of organizations (or individuals) than being in a position to advise and counsel them when they are being asked by opposing counsel to make statements that can be used against them to establish liability in litigation.
It is in this framework that, in 1982, the Committee on Professional Ethics of the Massachusetts Bar Association issued Opinion No. 82-7, interpreting DR 7-104 (A) (1), as it applied to ex parte contacts by opposing counsel with employees of an organization. The opinion concluded that a lawyer could not interview current employees of such a party without the consent of opposing counsel “where the proposed interview concerns matters within the scope of the employee’s employment.” The ethics committee reasoned that the principal interest reflected in DR 7-104 (A) (1) is the party’s right to “effective representation of counsel” that can be guarded adequately only by viewing all present employees of an organization as parties where the proposed interview concerned matters within the scope of their employment. It further reasoned that effective representation requires that the attorney aid his client both to avoid procedural pitfalls and to present truthful statements in the most effective manner. Finally, it underscored that the position it was adopting was in accord with the law of evidence “which recognizes an exception to the hearsay rule as to ‘a statement by [an] agent or servant concerning the matter within the scope of his agency or employment.’ ” “This rule binds the corporation with respect to admissions by employees far beyond the ‘control group’ of the corporation.” Accordingly, it concluded that the definition of a “represented party” for purposes of *364DR 7-104 (A) (1) needed to be consistent with the reach of the evidentiary rule.
This opinion, while it made eminent sense, was not fully embraced by the few Massachusetts courts (all Federal) which had occasion to consider DR 7-104 (A) (1) in the context of petitions by parties to allow or prohibit ex parte communication with employees during discovery.1 These courts, while generally acknowledging the reasoning of Opinion No. 82-7, often concluded that in the absence of specific "language in the rule regarding this subject, the better test was to balance, on a case by case basis, the competing interests of “effective representation,” and the need, largely by plaintiffs, to gather facts informally, unpolished or influenced by counsel for the corporate opposition. This case-by-case balancing was eventually criticized in 1990 in Siguel vs. Trustees of Tufts College, U.S. Dist. Ct., Civ. A. No. 88-0626-Y (D. Mass. 1990), as being wasteful of judicial resources, running the risk of treating similarly situated parties differently, and, most importantly, providing no clear guidance on ethical behavior to attorneys who needed to act and rely on that guidance every day. The court called on the Supreme Judicial Court to address the issue and provide clarity to the rule.2
Although it took several years, this court eventually addressed the issue when, after comment and hearings, it adopted rule 4.2 and its comment. The rule was adopted with the full knowledge of Opinion No. 82-7 and its interpretation of DR 7-104 (A) (1), with full knowledge of its 1988 decision in Ruszcyk v. Secretary of Pub. Safety, 401 Mass. 418 (1988), adopting those portions of Proposed Mass. R. Evid. 801 (d)(2)(D) that made hearsay statements of employees admissible as vicarious admissions of their employers, and after hearing and considering the concerns of many lawyers (including the plaintiff law firm), that, if the court adopted rule 4.2 and its comment without amendment it *365would be adopting the view expounded in Opinion No. 82-7.3 Even the court acknowledges that the adopted language in the comment prohibiting contact with persons “whose statement may constitute an admission on the part of the organization” was “most likely” intended as a reference to Fed. R. Evid. 801 (d)(2)(D). Ante at 356.
In this context it is painful to see the court now claim that, when it adopted the commentary, it did not intend its consequence; a consequence that merely ensures that organizations are as effectively represented by counsel as individuals. We should not shrink from what is a perfectly reasonable balancing of the equities.
In its opinion, the court states that to interpret the rule and commentary as adopted would grant an advantage to organizational litigants over nonorganizational litigants because, inter alia, as concerns a nonorganizational defendant, witnesses to an event could be interviewed without court approval, but if the defendant were an organization and the witnesses were employees, those witnesses could not be interviewed without court approval (assuming the interview concerned matters within the scope of their employment). Ante at 358. This observation misses the point. The reason that witnesses to an event would be, and should be, treated differently is precisely because the consequences of their interviews are treated differently. In the nonorganizational context, a witness’s hearsay statement could not be a vicarious admission of the defendant, yet in the organizational context it could. The scope of the no-contact rule should be tailored to the legal consequences of the contact because the purpose of the rule is to ensure the effective legal representation of counsel. Our ruling today upsets the balance created by the rule and commentary and creates a distinct disadvantage to the organizational parties.
The Niesig v. Team I test. For purposes of the no-contact rule, the court now adopts the definition of a represented party *366explicated by the New York Court of Appeals in Niesig v. Team I, 76 N.Y.2d 363 (1990). That definition, in the organizational context, includes only those “employees whose acts or omissions in the matter under inquiry are binding on the corporation ... or imputed to the corporation for purposes of its liability, or employees implementing the advice of counsel.” Id. at 374. The court also notes that the Niesig test is consistent with the position taken in the Restatement (Third) of the Law Governing Lawyers § 100 Reporter’s Note comment e (1998). The Restatement, in turn, also relies largely on the Niesig opinion to justify its position.
A close reading of the Niesig case, however, casts doubt on the transferability of its test to Massachusetts. First, the Niesig court was interpreting DR 7-104 (A) (1), not rule 4.2 and its comment. Second, as the New York court points out, the rule it adopts “is rooted in developed concepts of the law of evidence and the law of agency,” as those concepts have developed under New York law. For this reason, it cites and specifically rejects the breadth of the rule described in Opinion No. 82-7, which the Massachusetts Bar Association justified, in part, by reference to Massachusetts’ rules of evidence permitting statements of employees, made within the scope of their employment, to operate as admissions of their employer. In rejecting Opinion No. 82-7, the New York Court simply states that the rule of evidence in New York is different on this point, id. at 374, citing Loschiavo v. Port. Auth. of N.Y. & N.J., 58 N.Y.2d 1040 (1983). There, the Loschiavo court held that under New York Rules of Evidence, “the hearsay statement of an agent is admissible against his employer under the admissions exception to the hearsay rule only if the making of the statement is an activity within the scope of his authority.” Id. at 1041. In other words, only if the employee has the authority to speak for the organization. The Niesig court, therefore, did not have to grapple with or even consider the challenges posed to providing effective assistance of counsel to an organization, in the context of a State which has a far more expansive rule concerning what constitutes an admission of an organization for evidentiary purposes.
The Niesig decision in turn, cites to another State Supreme *367Court decision to support its claim that the rule it was adopting was similar to that adopted by courts throughout the country. Id. at 375 & n.5. In that case, Wright v. Group Health Hosp., 103 Wash. 2d 192 (1984), the Supreme Court of Washington adopted what it called the “managing-speaking” agent test, in interpreting DR 7-104 (A) (1). This test is indeed very similar to that which New York adopted in Niesig six years later. But as the Federal magistrate points out in Morrison v. Brandeis Univ., 125 F.R.D. 14 (D. Mass. 1989), when it rendered the Wright decision, the Supreme Court of Washington “had no need to consider the effect of this [evidentiary rule regarding admissions], and, in fact, did not mention it. . . . So far as it appears, Washington had not adopted a rule of evidence which has the broader test as is found in [Fed. R. Evid. 801 (d)(2)(D)].” Id. at 17.
In these circumstances, it seems to me that we should not be so quick to adopt the position of States with very different jurisprudential landscapes, and disown a rule that makes good sense in the Commonwealth. Rather, we should work to ensure that the reach of the rule does not exceed the limits necessary to its purpose. This can be accomplished in two ways. First, by making it clear that the prohibition against communicating with persons whose statements may constitute an admission on the part of their organization (1) does not preclude counsel from contacting all employees of a represented organization and (2) only applies to communications with employees about matters within the scope of their employment that would be admissible as vicarious admissions of the organization in the particular controversy that is the subject of the representation. Second, by demonstrating that we intend narrowly to interpret the qualifying factor, i.e., what matters are within the scope of an individual’s employment, for purposes of this rule and the common-law rule of evidence announced in Ruszcyk v. Secretary of Pub. Safety, 401 Mass. 418 (1988).
Applying these limiting factors to the prohibition, I would not, for example, conclude that the plaintiff’s communications with the Harvard patrol officers and dispatcher would have been impermissible. Observations by an employee of apparent wrongful conduct by other employees ought not generally be construed *368to be within the scope of an employee’s employment unless it was their responsibility to observe or investigate such conduct.4 Consequently, hearsay statements about such observations should not be admissible against the organization under the admissions exception to the hearsay rule.
I view the plaintiff’s communications with the Harvard police lieutenants, however, as more problematic. Those employees clearly had a measure of supervisory responsibility over Stanford, whose job performance was to be a central issue in her discrimination litigation. Thus, those interviews run afoul not only of the prohibition against communicating with employees about matters within the scope of their employment but also the prohibition against communicating with employees having managerial responsibility regarding the subject of the representation.
Sanctions. I fully support the imposition of sanctions by trial judges against litigants who violate or abuse the discovery rules, obstruct the efficient exchange of discoverable information, or who take and litigate frivolous positions. The use of the cost of litigating such matters as a measure of the appropriate sanction also makes a great deal of sense. But DR 7-104 (A) (1) and rule 4.2 are ethical rules, not discovery rules. In addition, the position taken and arguments made by the plaintiff law firm were not frivolous, and its actions were not clearly violative of the ethical rules at the time, in light of the state of the law regarding the reach and meaning of DR 7-104 (A) (l).5 Therefore, notwithstanding my view that some of the plaintiff’s actions violated DR 7-104 (A) (1) and rule 4.2, as I would interpret them, I would vacate the financial sanctions as an abuse of discretion. I would leave the remainder of the motion judge’s order in effect.
See, e.g., Morrison v. Brandeis Univ., 125 F.R.D. 14 (D. Mass. 1986); Mompoint v. Lotus Dev. Corp., 110 F.R.D. 414 (D. Mass 1986); Siguel vs. Trustees of Tufts College, U.S. Dist. Ct., Civ. A. No. 88-0626-Y (D. Mass. 1990); Bruce vs. Silber, U.S. Dist. Ct., Civ. A. No. 88-2588-H (D. Mass. 1989).
The Local Rules of the United States District Court for the District of Massachusetts (2001) follow the disciplinary rules promulgated by the Supreme Judicial Court, formerly including DR 7-104 (A) (1), as appearing in 382 Mass. 786 (1981), and now Mass. R. Prof. C. 4.2, 426 Mass. 1402 (1998).
Subsequent to our adoption of rule 4.2 and its comment, a Federal magistrate held that the rule now clearly prohibits contact with employees of a represented organization regarding matters within the scope of their employment. Hurley v. Modern Cont. Constr. Co., 77 F.Supp.2d 183 (D. Mass. 1999).
Compare Dent v. Kaufman, 185 W. Va. 171, 176 (1991) (no matter how damning, coworker’s observations of improper behavior of colleagues would not constitute admission), with Ruszcyk v. Secretary of Pub. Safety, 401 Mass. 418, 420-421 n.3 (1988) (witness’s duties included receiving reports of incident investigations, therefore his hearsay statement about cause of incident was statement about matter within scope of employment).
This was the rule in effect when almost all of the ex parte communications took place.