Can You Sue Yourself? We'll Soon Find Out

It’s not unusual for an attorney to challenge the constitutionality of a law. But,according to the Associated Press, Connecticut's Secretary of State, Susan Bysiewicz, is charting new territory: she’s a plaintiff in a lawsuit against her own office. In effect, she’s suing herself.

Ms. Bysiewicz, according to the AP, is a Democratic candidate for state attorney general. She argues that it's unconstitutional to require attorney general candidates to have at least 10 years in active legal practice. While she has served 11 years as Secretary of State, and prior to that, six years as a corporate lawyer, the Associated Press says she has never tried a case – and hasn’t set foot in a courtroom since law school.

In his Connecticut Law Blog, Ryan McKeen points out the clearly stated provision of the law: “The Attorney General shall be an elector of this state and an attorney at law of at least ten years’ active practice at the bar of this state….” Conn.Gen.Stat. Section 3-124.

According to reports, Wesley Horton, Bysiewicz’s attorney, said that Bysiewicz is both qualified and eligible to practice law in court, although she chose to do it in other forums. Bysiewicz is a Duke University School of Law graduate who has been a member of the Connecticut Bar since 1986.

Legally, we often act in multiple capacities, such as personally/fiduciary or personally/corporate officer. Suing oneself is rare because it is usually absurd. For one thing, it is a fundamental principle that the courts will only resolve real controversies because courts do not give advisory opinions. For that, you get your own lawyer and take your chances. In fact, that’s why Ms. Bysiewicz has to sue herself instead of just asking if it’s OK.

As always, there are exceptions. This case may be one of the exceptions. We’ll see. All legal eyes will be on Hartford this week, as will political ones.

Two Blog Posts With Good Advice About E-mail

Recently, two blog posts had some very good advice about e-mail in the context of litigation.

Daniel Schwartz in the Connecticut Employment Law Blog entitle his post, “You’ve Been Sued, What Phrases Are ‘Hot’ for Electronic Discovery Searches?   ABAJournal.com, carried a post by Molly McDonough entitled “Things You Should Never Put in an E-mail.”

 

Here is, for me, the simple version of Mr. Schwartz’ advice:

 

don't put something in an e-mail that you wouldn't want your mother to see on the front page of the New York Times six months later.

 

Here is the essence of Ms. McDonough’s advice, quoting a court reporter, Ron Sylvester:

 

My wife says you should never put anything in a company e-mail that you don’t want to be shown to 12 strangers on a big movie screen.

 

How could I say it any better? Thus, I merely make a modest effort to distribute the message further.

 

The message is on the surface merely defensive. In the context of litigation, it says that through discovery, things you put in e-mail will come back to hurt your case. Or, in a more general context, it says e-mail can come back to really embarrass you. More positively, careful attention to what and how you communicate, by e-mail in this case but in any medium generally, can only be beneficial to the business and all connected with it.

Former Employees As Witnesses

When a former employee is to be a witness in litigation involving the employer, issues are raised which need to be resolved carefully and thoughtfully. Law.com, in an In-House Counsel post by Linda L. Listrom of The Corporate Counselor, has covered the issues and developed useful guidelines for attorneys acting as in-house counsel for the employer (“When Your Witness Is a Former Employee”). We offer some additional insights for the smaller business employer, especially one too small to employ in-house counsel.

The guidelines offered by Ms. Listrom are summarized in her conclusion:

A former employee can be a pivotal witness for your company. Fortunately, the ethics rules permit you to help your former employee by alleviating some of the hardships of testifying. If a former employee wants counsel, you can provide it. If he wants to be compensated for his time, you can do that, as long as the fee is reasonable. But you cannot discourage him from cooperating with your opposing counsel, if he chooses to do so.

The analysis presented by the post is primarily for in-house lawyers since it is focused on the interpretation and application of ethical rules for lawyers, relying on the ABA Model Rules. Here are a few thoughts that may be of interest to the nonlawyers who may be running a small business (as well as the attorneys who advise them):

  • The situation where a former employee is to be a witness highlights the problem of “burning bridges,” a problem we usually associate as the employee’s, not the employer’s. An employee who is “forced out’ by harassing tactics, rather than leaving on good terms may present a whole new set of issues. The better management practice is to be aware of the possibility and always take the high road when it comes to terminations and performance management.
  • The Law.com post notes that it is proper to compensate former employees for their time acting as witnesses, within certain limits. If you use a severance agreement, and you probably should, you should discuss with counsel the possibility of including these provisions. They cost nothing unless you really are in litigation. Then, cooperation may be priceless.
  •  If the business has no in-house counsel, it is all the more important to contact to get advice from outside counsel on how to handle the former employee witness. In fact, as reflected in the Law.com post, it is primarily the lawyer’s role to contact former witnesses, even employers. Conversations about the case between a manager and a former employer are not likely to be privileged and are likely to be the proper subject of cross-examination,

Common sense tells us that if the employer business is involved in litigation, it is no stretch to anticipate that an employee may be a witness.  That's why it is important to understand the issues presented and the appropriate ways to deal with the situation.