Weekly Law Resume - Torts – Conflict Representing Client’s Employee at Deposition

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Michael Yanez v. Brian Plummer
California Court of Appeal, Third Appellate District (November 5, 2013)

After a defendant’s employee was fired for providing deposition testimony different from statements provided after an incident, the fired employee sued the defense counsel representing him at the deposition for legal malpractice. This case held that a defense counsel representing the defendant employer and a non-party witness employee could have a conflict of interest in representing both in a deposition.

Michael Yanez (“Yanez”) and Robert Garcia (“Garcia”) were employees of Union Pacific Railroad Company (“Union Pacific”). Garcia was injured while working, and Yanez was the only witness. After the incident, Union Pacific obtained Yanez’ statement. Garcia sued Union Pacific under the FELA, and he deposed Yanez in that case. Union Pacific’s attorney (Brian Plummer (“Plummer”)) represented Yanez and Union Pacific at Yanez’ deposition.

Before the deposition, Yanez told Plummer that Yanez was concerned that his deposition testimony could negatively affect his job at Union Pacific. Plummer assured Yanez that as long as he told the truth, Yanez’ job would not be affected. During the deposition, Plummer elicited testimony from Yanez which contradicted the statements that he had made shortly after the incident. Union Pacific terminated Yanez for dishonesty. Yanez sued Union Pacific for wrongful discharge and Plummer for legal malpractice, breach of fiduciary duty and fraud. Plummer successfully made a motion for summary judgment on the ground that he did not cause Yanez’ termination, but the Third District Appellate Court reversed.

The Court found that Plummer may have committed legal malpractice for failing to obtain the written consent of Union Pacific and Yanez that he was representing them in a matter in which the interests of the clients could potentially conflict, which violated the State Bar Rules of Professional Conduct. The Court found that there was a triable issue of material fact that but for Plummer’s alleged malpractice, breach of fiduciary duty and fraud, Yanez would not have been terminated. Yanez was allowed to maintain his case against Plummer.

COMMENT

Defense counsel who simultaneously represent a company and its employee at the employee’s deposition may be sued for legal malpractice if the deposition testimony of the employee subjects the employee to any adverse employment actions. This attorney has to obtain the informed written consent of both the company and the employee if the lawyer is going to represent the employee at his deposition. If the informed written consent of both clients cannot be obtained, the company or its insurer may have to retain separate counsel to represent the employee at his or her deposition.

For a copy of the complete decision see:

http://www.courts.ca.gov/opinions/documents/C070726.PDF