Metropolitan News-Enterprise


Wednesday, November 6, 2013


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Court Revives Malpractice Suit Over Dual Representation

Panel Says Lawyer Representing Worker and Employer May Have Caused One Client to Fire the Other




An attorney who represented a company and its employee, in a suit brought by another worker, may have committed malpractice by leading, or at least allowing, the employee to make statements at his deposition that led to his being fired, the Third District Court of Appeal ruled yesterday.

The justices reversed a Placer Superior Court judge’s ruling that Michael Yanez failed to present sufficient evidence of causation to go to trial against Brian Plummer, an in-house lawyer for Union Pacific Railroad Company.

Yanez alleged in his complaint that he was fired for dishonesty, based on a discrepancy between two accounts of an incident in which a co-worker was injured. He further alleged that he was not dishonest, but that Plummer, acting for the company’s benefit, helped turn a simple miswording in his original statement into what erroneously appeared to be something sinister.

The events leading up to Yanez’s firing, and the ensuing lawsuit, began with a September 2008 accident at the railroad’s Placer County mechanical facility. Yanez and fellow machinist Robert Garcia were replacing locomotive motors when Garcia took a fall.

Injured in Fall

As explained in the Court of Appeal opinion, a locomotive is placed over a “drop pit,” from which replacement motors are lifted up using an elevator-like “drop table.” On this particular occasion, Yanez was operating the drop table when Garcia went into the drop pit to retrieve a tool, fell, and was injured.

No one other than Yanez was present at the time of the fall. Yanez wrote out a statement shortly after the injury occurred, in which he said he was watching the motor come up while Garcia “went downstairs & went to retrieve tool had slipped & fell on concrete floor, soaked in oil & grease.”

A supervisor said the statement was inadequate, so Yanez wrote out another one an hour later in which he said he “saw Bobby slip & fall down on oil soaked floor.”

Garcia later sued the railroad under the Federal Employers Liability Act. Yanez was required to give a deposition about nine months after the injury, and was assigned to meet with Plummer on the morning of the deposition.

According to the papers opposing Plummer’s motion for summary judgment in the subsequent malpractice suit, Yanez expressed concern that someone needed to “protect” him because his testimony about conditions at the worksite was not likely to be favorable to the company. Plummer, Yanez claimed, assured him that the attorney was representing his interests, as an employee of the company, and that Yanez had no fear of reprisal as long as he told the truth.

Questions Over Wording

Under questioning by Garcia’s lawyer, Yanez testified that he did not “witness” or “see” Garcia slip and fall. Under questioning by Plummer, he said that his second written statement was “worded...wrong.”

Yanez was fired shortly after he was deposed. The director of the facility was deposed in Yanez’s suit, and confirmed that the termination came at the conclusion of what the company terms a “formal investigation,” a form of disciplinary hearing.

Yanez read a statement at the close of that hearing, in which he claimed that he wrote the second statement “in the haste of the moment” and that the statement should have read, in accord with his first statement, that he “saw that Bobby had slipped and fell down.”

The facility’s director, Dennis Magures, also confirmed in his deposition that Yanez was fired for dishonesty, based on the contradiction between his second statement, in which he said he “saw” Garcia slip and fall, and his deposition testimony that he did not see him fall.

 In his suit against Plummer, Yanez brought causes of action for malpractice, breach of fiduciary duty, and fraud. He alleged that Plummer had an undisclosed  conflict of interest, had no right to represent him without obtaining an informed waiver of that conflict, and acted to his detriment by not asking him to clarify whether he meant to say he had seen Garcia fall, or that he saw him on the floor after he fell.

Plummer made Yanez appear “in the worst light” in order to protect his other client, the railroad, the opposing papers argued.

Causation Argument

Plummer argued that there was no conflict, and that even if there was, it did not cause Yanez to be fired. He noted that he had no role in the first two, contradictory, statements; that the firing occurred only after a disciplinary hearing; and that Yanez had the opportunity to defend himself at that hearing.

Placer Superior Court Judge Colleen M. Nichols agreed and granted summary judgment.

But Justice M. Kathleen Butz, writing for the Court of Appeal, said the opposing papers, liberally construed as required in the case of a summary judgment motion, showed a triable issue of causation as to each of the three causes of action.

While Yanez’s earlier statements could be read as contradictory, the jurist wrote”

“[I]t was Plummer who highlighted Yanez’s deposition testimony that he did not ‘see’ Garcia slip; it was Plummer who presented the second statement at the deposition; it was Plummer who got Yanez, under oath at the deposition, to effectively admit that his deposition testimony conflicted with the second statement; it was Plummer who did not offer Yanez a chance to explain this discrepancy; and it was Plummer who failed to present the first statement as an exhibit at Yanez’s deposition.”

The justice also noted there had been no accusation of dishonesty during the nine months preceding the deposition, suggesting that there would have been no termination but for the testimony elicited by Plummer.

Butz went on to reject as “startling” the defendant’s argument that the court could not reverse the summary judgment without creating a per se rule against dual representation of an employer and employee. The justice said that “well-recognized rules of professional conduct” support the court’s conclusion that a conflict existed in this particular case, and that Plummer acted to Yanez’s detriment and failed to obtain his informed consent to dual representation.

The case is Yanez v. Plummer, 13 S.O.S. 5714.


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