The Perils of In-House Counsel Simultaneously Representing Company and Employee

In Yanez v. Plummer (Nov. 5, 2013, C07026), the Third Appellate District issued an opinion highlighting the perils for an in-house lawyer who simultaneously represents the company and an employee.  Union Pacific fired Michael Yanez for dishonesty, citing a discrepancy between a statement that Yanez wrote and a deposition answer Yanez gave in a lawsuit concerning a co-employee’s on the job injury.  At that deposition, Union Pacific in-house counsel, Brian Plummer, represented both Union Pacific and Yanez.  Yanez met with Plummer prior to the deposition.  During this preparation session, Yanez told Plummer he was worried about how his testimony might hurt Union Pacific and may affect Yanez’ job.  Yanez asked Plummer who would protect Yanez at deposition.  Plummer indicated that he would be Yanez’ attorney at deposition.  Yanez’ conflicting deposition testimony led to Yanez’ termination by Union Pacific.  In the ensuing lawsuit, Yanez alleged malpractice, fraud and breach of fiduciary duty against Plummer.  Plummer successfully argued on a motion for summary judgment that Yanez could not establish the causation element of the claims against Plummer.