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California Court Opinion Serves as Cautionary Tale for Attorneys who Jointly Represent Employers and

FACTUAL BACKGROUND

Plaintiff, Michael Yanez, was present during a slip and fall injury sustained by co-worker, Robert Garcia, while both were employed by defendant, Union Pacific Railroad Company (“Union Pacific”). Instructed by Union Pacific’s management, Yanez submitted two statements describing the incident: the first statement immediately after the incident stated that Garcia had slipped and fell, and the second statement about an hour later stated that he saw Garcia slip and fall. Garcia brought a Federal Employers Liability Act lawsuit against Union Pacific for his injury and deposed Yanez.

Attorney Brian Plummer, in-house counsel for Union Pacific, defended Union Pacific and also represented Yanez during his deposition in the matter. Yanez met with Plummer on the morning of the day of his deposition. Plummer confirmed that Yanez had not actually seen Garcia fall down and asked Yanez about the conditions at the accident site. Nothing was said regarding the two statements that Yanez had written.

Yanez expressed concern to Plummer about his job because his deposition testimony was likely to be unfavorable to Union Pacific, and asked Plummer who would protect him at the deposition. Plummer responded that Yanez was a Union Pacific employee and Plummer was his attorney for the deposition, and as long as Yanez told the truth in the deposition, his job would not be affected. Plummer never told Yanez about any conflict of interest involving Plummer representing both Union Pacific and Yanez.

At the deposition, Garcia’s counsel learned that Yanez did not witness Garcia’s accident and elicited testimony from Yanez about several conditions at the accident site that could be deemed unsafe.

Plummer then questioned Yanez. Plummer first tried to distance Union Pacific’s management from the alleged unsafe conditions, confirmed that it was Yanez’s testimony that he did not see Garcia slip and fall, and only marked as exhibit and emphasized Yanez’s second witness statement that Yanez saw Garica slip and fall.

After the deposition, Union Pacific initiated a disciplinary hearing against Yanez for submitting a false witness statement. Despite Yanez’s efforts to explain that his second statement was written in haste and should be read together with his first statement (that he saw Garcia had slipped), he was terminated for being dishonest in violation of company policy.

YANEZ'S LAWSUIT AGAINST UNION PACIFIC AND PLUMMER

Following his termination, Yanez brought suit against Union Pacific for wrongful discharge and against Plummer for legal malpractice, breach of fiduciary duty, and fraud. Plummer moved successfully for summary judgment, asserting that Yanez cannot meet the causation element of the claims against him. The Court of Appeal, however, reversed summary judgment in favor of Plummer, finding that Yanez raised a triable issue of material fact whether, but for Plummer’s conduct, Union Pacific would not have fired Yanez.

The appellate court determined that Yanez and Union Pacific occupied adverse positions. Despite these conflicting interests, Plummer represented both parties in the matter. Prior to the deposition, Yanez expressed concern about how his testimony would affect his job and Plummer represented to Yanez that he was Yanez’s attorney and that Yanez’s job would not be affected if he told the truth at the deposition. The court thus found that Yanez presented evidence that Plummer neither informed Yanez about conflicts with Union Pacific nor obtained his written consent to represent him despite such conflicts.

The court also found that Yanez presented a triable issue that but for Plummer’s alleged malpractice, breach of fiduciary duty, and fraud, Yanez would not have been terminated. Specifically, the court observed that it was Plummer who (1) highlighted Yanez’s deposition testimony that he did not see Garcia slip and fall; (2) presented the second statement at the deposition; (3) got Yanez to admit under oath that his deposition testimony conflicted with the second statement; (4) did not offer Yanez a chance to explain this discrepancy; and (5) failed to present the first statement as an exhibit at Yanez’s deposition. The court thus concluded that Yanez likely would not have been charged with dishonesty without that deposition testimony.
 

CAUTIONARY TALE FOR BOTH ATTORNEYS AND EMPLOYERS

The Yanez case serves as a cautionary tale for attorneys who jointly represent employers and their non-party witness employees who may have adverse interests. Before representing witness employees at depositions, attorneys should evaluate whether an actual or potential conflict exists, and if so, obtain written informed consent from the employee or have the employee represented by separate counsel.

Employers should equally be cognizant of this issue. Had Yanez been represented by adequate counsel, a legitimate explanation for the inconsistency between his second statement and his deposition testimony may have been provided, thereby allowing Yanez to keep his job and ultimately avoiding a potentially expensive wrongful discharge lawsuit against Union Pacific.

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