• Attorney Whose Conduct Causes an Employee to be Terminated, While Representing both the Employee and the Employer, May be Sued for Malpractice
  • November 11, 2013
  • Law Firm: Kronick Moskovitz Tiedemann Girard A Law Corporation - Sacramento Office
  • A California court of appeal recently ruled that an employee could sue an employer’s attorney for malpractice. The employee’s termination was caused by the actions of the attorney who represented the employer, but who had also advised the employee that he was representing him as well. (Yanez v. Plummer (November 5, 2013, No. C070726) --- Cal.Rptr.3d ----).

    The case stemmed from an accident at a Union Pacific Railroad Company ("Union Pacific") worksite, where machinists Michael Yanez and Robert Garcia were at work replacing locomotive motors. Garcia was injured when he entered a pit area to retrieve a tool, and slipped and fell on a slippery surface. Garcia later sued Union Pacific under the Federal Employers Liability Act ("FELA"), alleging an unsafe work environment led to his injury. Immediately after the accident, Union Pacific asked Yanez for a statement describing the accident. Initially, Yanez indicated he did not actually see Garcia fall. Several hours later, Union Pacific asked Yanez to make a second, more detailed statement. Among the statements added to his second statement was: “I saw [Garcia] slip and fall down on oil soaked floor."

    Nine months later, Yanez was deposed for Garcia's lawsuit. Prior to the deposition, Yanez expressed concern to Union Pacific's attorney, Brian Plummer, about his job security if he should provide negative testimony about Union Pacific's working conditions. Plummer told Yanez that Plummer was representing his interest as a Union Pacific employee, and ensured him that his job would not be affected. Under questioning from Garcia's counsel, Yanez acknowledged that he did not actually see the accident and explained that he had "worded (the second statement) wrong." Representing Union Pacific, Plummer proceeded to highlight Yanez' testimony that he did not actually see Garcia fall, and the conflict with his earlier statement. Plummer did not follow up by asking Yanez to explain the circumstances that lead to the conflict.

    Following the deposition, Union Pacific convened a disciplinary hearing against Yanez for alleged dishonesty for the inconsistency between his second statement and his deposition testimony. Yanez insisted that he had not been intentionally dishonest in making his second statement, but in his haste to obey, had simply worded it wrong. Following the hearing, Yanez was terminated for violating company policy against dishonesty. Yanez filed suit against Union Pacific for wrongful discharge and against Plummer for malpractice. The trial court granted summary judgment for Plummer, finding that Yanez had failed to show causation for his termination. Yanez appealed.

    The question before the court was whether there was a triable issue of fact that Plummer caused Yanez to be terminated from Union Pacific. In a legal malpractice action, the court explained, the test for causation is the "but for" test-- but for the defendant's conduct, the harm would not have occurred. Even if some other person, condition, or event was also a factor in causing the harm, the causation test is still met if the harm would not have occurred without the defendant's conduct.

    Yanez and Union Pacific had adverse positions regarding Garcia's FELA lawsuit, yet Plummer represented both Union Pacific and Yanez during the deposition. The court noted that State Bar rules prohibit an attorney from accepting multiple clients whose interests potentially conflict without informed written consent. Yet Plummer neither informed Yanez about the conflict nor obtained his written consent. The court found that breach of professional conduct constitutes evidence of malpractice and breach of fiduciary duty, but standing alone, it does not prove malpractice without the showing of causation of harm.

    The appellate court rejected Plummer's contention that his conduct played no role in Yanez' termination. The court noted Plummer had assured Yanez that he would be representing Yanez' interests, that his employment would not be affected by his testimony, and Plummer then highlighted the conflict between Yanez' written statement and his deposition testimony.

    The court found that Plummer played a substantial role in securing Yanez' testimony at the deposition, without which, Union Pacific could not have terminated Yanez for the discrepancy between that testimony and his earlier statement. Therefore, Yanez had provided evidence presenting a triable issue of fact that but for Plummer's alleged malpractice and breach of fiduciary duty, Yanez would not have been terminated.

    The judgment granting summary judgment to Plummer was reversed.