Employer’s Lawyer Had A Conflict Of Interest When Representing Employee At His Deposition.

Plaintiff wrote a statement shortly after an accident involving a co-worker, in which plaintiff said the other worker slipped and fell on a concrete floor soaked in oil and grease, but he did not say he witnessed the fall.  About an hour later, someone in management asked him to write another witness statement. In the second, he wrote that he “saw Boby slip & fall down on oil soaked floor, he was lying on his back when I came downstairs to help him up, he complainde [sic] of his knee & back hurt.” The co-worker sued the company, and plaintiff was instructed to meet with the company’s lawyer prior to his deposition.  Plaintiff expressed concern about his job because he knew his testimony would not be favorable to his employer, so he asked the company’s lawyer to protect him. The lawyer responded that plaintiff “was a Union Pacific employee and [the lawyer] was his attorney for the deposition; as long as [plaintiff] told the truth in the deposition, [plaintiff’s] job would not be affected.” When the lawyer questioned plaintiff, after the co-worker’s lawyer had elicited information damaging to the employer, the company lawyer discredited plaintiff with one of his statements, but never mentioned the other one. Plaintiff was fired for being dishonest shortly after he gave his deposition. Plaintiff then brought the current action for wrongful discharge as well as legal malpractice against the lawyer, and the trial judge granted summary judgment in favor of the employer. The appellate court reversed, stating: “Summary judgment evidence here shows a conflict [of interest] between the employer and the employee (to the employee’s detriment) without obtaining the employee’s informed written consent. . . .We have merely applied well-recognized rules of professional conduct to the conflict of interest in this case.”  (Yanez v. Plummer (Cal. App. Third Dist.; November 5, 2013) 221 Cal.App.4th 180.)