A recent California Court of Appeal opinion, Yanez v. Plummer, provides a cautionary tale for in-house counsel or outside attorneys who jointly represent their institutional client’s employees or agents in depositions. If handled inappropriately, joint representation can result in liability for the lawyer and undercut the institution’s own interests.
Plaintiff Michael Yanez worked for a railroad. He was a witness with respect to a workplace accident that injured a co-employee, Robert Garcia. Yanez prepared two statements related to the incident – one directly after the accident and the other an hour later.
In the first statement, he wrote: “I was watching motor come up while Boby went downstairs & went to retrieve tool had sliped & fell on concrete floor, soaked in oil & grease.” Yanez’s supervisor asked him to write a second statement because the first lacked details. In the second statement, Yanez wrote in relevant part: “I saw Boby slip & fall down on oil soaked floor . . . .”
The injured employee sued the railroad and deposed Yanez. The railroad assigned in-house counsel to defend the lawsuit. Prior to the deposition, Yanez met with the attorney to prepare for the testimony. Yanez told the attorney that he had not actually seen the slip and fall. Yanez expressed concern about his job security in giving testimony unfavorable to the railroad and sought assurances that the attorney would “protect” him at the deposition. Counsel assured Yanez that his job would not be affected as long as he told the truth. They did not discuss the discrepancies between the two witness statements or conflicts of interest between Yanez and the railroad.
At the deposition, the injured employee’s attorney elicited testimony that Yanez had not seen the fall. In addition, the attorney asked Yanez about several unsafe conditions at the site of the accident. In-house counsel also questioned Yanez. The attorney had Yanez confirm that his “testimony today” was that the accident was not within his “line of sight.” Counsel then asked Yanez about the sentence in his second witness statement that he “saw Boby slip & fall.” Counsel did not provide Yanez an opportunity to explain the discrepancy or mark the other witness statement as an exhibit. Counsel’s reasons for impeaching Yanez are not entirely clear. Yanez contended that the attorney was attempting to undercut Yanez’s credibility and his other testimony about unsafe working conditions.
A railroad representative was present at the deposition. After listening to Yanez’s testimony, the representative recommended that the railroad initiate a disciplinary hearing for dishonesty, which eventually resulted in Yanez’s termination. At that proceeding, Yanez maintained that he simply miswrote his second witness statement and meant to state, “I saw Bobby had slipped and fell down on oil soaked floor.”
Yanez sued the railroad for wrongful discharge and sued in-house counsel for malpractice, breach of fiduciary duty, and fraud. The attorney claimed that, since he had not prepared Yanez’s two witness statements or participated in the process leading to his termination, Yanez could not prove causation. The court of appeal disagreed.