Is there a triable issue of fact concerning company lawyer as a cause of termination of employee when company lawyer co-represents employer and employee?

November 13, 2013
By Justice Steven Vartabedian (Ret.) on November 13, 2013 6:00 AM |

lawyers-140579-m.jpgIn Yanez v. Plummer (filed & published 11/5/13) C070726, Plaintiff Yanez sued his former employer, Union Pacific, for wrongful discharge and its in-house counsel, Plummer for legal malpractice, breach of fiduciary duty and fraud. Yanez had witnessed the injury of a co-worker who filed a personal injury lawsuit under the Federal Employers Liability Act (FELA) against Union Pacific. Yanez was twice asked to give the employer written statements about the accident, to which he complied (the employer request the second statement because the first statement "lacked details.") In the second statement, Yanez wrote that he saw the employee slip and fall on the greasy floor where they were working; the first statement merely observed the greasy condition of the floor and that the co-worker had slipped and fell on that floor. Plummer represented both Union Pacific and Yanez at Yanez's deposition, at which Yanez admitted he did not actually see the co-worker slip--that the second statement was a miswording on his part. Based on these circumstances, Union Pacific fired Yanez for dishonesty.

Plummer's motion for summary judgment in Yanez's lawsuit was granted by the trial court. Plummer convinced the court that Yanez could not prove that any conduct on Plummer's part could have caused the termination. The Court of Appeal, Third Appellate District, disagreed, finding that Yanez had raised a triable issue of material fact that but for Plummer's conduct, Union Pacific would not have fired Yanez. The judgment was reversed, and Yanez's claims against Plummer were reinstated.

The appellate court found particular significance in facts set forth by Yanez concerning the pre-deposition meeting he had with Plummer. Plummer instructed Yanez to meet with him shortly before Yanez's deposition. Plummer confirmed with Yanez that he had not actually seen the co-worker fall down and asked about the work-site conditions at the time of the accident. There was no discussion about the two written statement. When Yanez expressed concern as to who would protect him during the deposition, and that he felt his job might be in jeopardy because his testimony would likely be unfavorable to Union Pacific, Plummer responded that Plummer was his attorney for the deposition and so long as he told the truth his job would not be affected. Plummer never advised Yanez about counsel's conflict of interest.

At the deposition, the attorney for the injured co-worker elicited testimony from Yanez that he did not witness the accident, but he did observe the unsafe, slippery conditions at the accident site. Plummer's questioning of Yanez essentially aimed at highlighting Union Pacific's safety culture and discrediting Yanez; Yanez offered that the second written statement was "worded wrong." Attending the deposition was a supervisor of Yanez, Magures, who obtained a transcript of the deposition. On the basis of the deposition testimony, Magures brought disciplinary charges against Yanez, leading to his termination.

Yanez's lawsuit alleges that the conduct of attorney Plummer and Magures combined to cause his termination. The key theory asserted against Plummer is malpractice as Yanez's attorney, for which the test of causation is "but for" Plummer's conduct, the harm would not have occurred. The "substantial factor" test subsumes the "but for" test as follows: a defendant cannot avoid responsibility just because some other person's conduct may have also been a substantial factor as well. Where reasonable minds may differ on the issue of causation, the matter is a jury question.

Plummer maintained he played no role in Yanez's firing that he had no part in uncovering Yanez's "deception." The appellate court disagreed that Plummer could absolve himself as a matter of law. That it was Plummer who, with Yanez under oath, highlighted that Yanez did not see the slip, that such was contrary to his second statement, that Plummer did not offer Yanez a chance to explain the discrepancy, and that he failed to present Yanez's first statement as an exhibit in the deposition. The facts could reasonably be viewed as Plummer being loyal to Union Pacific's interests, to Yanez's detriment, under circumstances where Plummer assured that he was representing Yanez's without explaining the conflict of interest. So Plummer remains as a defendant in Yanez's jury trial.

Among other things, this case illustrates the dangers of an employer's attorney taking on dual representation of any employee in depositions where conflicting interests may come into play. At the very least counsel needs to advise the employee of any potential conflict of interest. Counsel may additionally want to obtain an informed written consent before proceeding or secure separate counsel for the employee.