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.
There was sufficient evidence from which one could reasonably conclude that the attorney’s conduct at the deposition played a substantial factor in the decision to fire Yanez. In fact, the railroad’s representative admitted that Yanez’s testimony at the deposition “triggered” the dishonesty charge and termination proceedings.
More importantly, the court emphasized that counsel had duties to both clients – the railroad and Yanez – and that the attorney should have obtained informed written consent to the joint representation. Without informed written consent of both clients, an attorney may not accept joint representation in which there is a potential conflict of interest or accept or continue joint representation in which there is an actual conflict of interest (California Rule of Professional Conduct § 3-300(C)).
If a potential conflict becomes actual during the course of representation, the attorney must obtain further informed written consent. See id. § 3-300cmt. In addition, with limited exceptions, California rules require informed written consent whenever one client pays the attorney to represent another client. Id. § 3-300(F). As a practical matter, counsel for institutional clients should obtain informed written consent whenever they jointly represent that company’s current or former employees and agents.
The attorney’s conduct at the deposition could give rise to malpractice liability even if there were informed consent. In the joint representation context, the attorney owes both clients fiduciary duties, which include a duty of loyalty. Counsel conceivably could have foreseen that highlighting discrepancies between Yanez’s testimony and his second witness statement could have adverse consequences for him, especially in light of the fact that Yanez expressed concern about losing his job. In circumstances like these, an attorney may violate the duty of loyalty by impeaching individual clients’ testimony at depositions or trials.
At the end of its opinion, the court stressed that it was not holding that counsel may never jointly represent an employer and employee, but “merely applied well-recognized rules of professional conduct to the conflict of interest in this case.” Because of the nature of the conflict in that case, the in-house attorney should have recommended the hiring of separate counsel for Yanez. This would have benefited not only Yanez, but also the institutional client by ensuring that no conflict of interest prevented counsel from zealously pursuing the company’s interests.
