Television crime dramas - and televised congressional testimony - have made "taking the Fifth" part of our collective civic consciousness. The Fifth Amendment to the Constitution provides that no person "shall be compelled in any criminal case to be a witness against himself," and, similarly, Article 12 of the Massachusetts Declaration of Rights states that no person shall "be compelled to accuse, or furnish evidence against himself." But what happens when these 18th Century legal principles confront uniquely 21st Century circumstances?
As discussed in a previous blog post, a well-drafted shareholder or employee agreement is extremely important to clarify the rights and duties of an employee who is also a minority shareholder of a Massachusetts close corporation. The need for a clear agreement is especially important if there is a dispute concerning the termination of a minority shareholder/employee. Where no agreement exists, or if the applicable agreement does not entirely govern the rights and duties of the parties in a particular situation, the obligations are governed by their fiduciary duties to each other, which may be unclear depending on the circumstances.