Union Pacific lawyer faces trial on misconduct accusations

An in-house senior trial lawyer at Union Pacific Railroad’s extensive operations in Roseville is facing serious misconduct accusations that an appellate court has said must be presented to a jury.

Brian Wayne Plummer acted as the lawyer for both the railroad and one of its employees, Michael S. Yanez, during Yanez’s deposition in a personal-injury damage lawsuit brought against the railroad by another employee, Robert Garcia.

In a separate lawsuit brought by Yanez against Plummer and the railroad, Yanez told Plummer just before the deposition on June 17, 2009, that he was worried about his job because his testimony would likely be unfavorable to Union Pacific. He asked who would “protect” him during the deposition, his lawsuit says.

Yanez claims Plummer responded that he was representing both Yanez and Union Pacific for purposes of the deposition and that Plummer reassured Yanez that as long as he told the truth, his job would not be affected. Plummer did not mention that he might have a conflict or that he might challenge any part of Yanez’s testimony, according to Yanez’s lawsuit.

But during the deposition, Plummer attacked Yanez’s credibility by seizing on a discrepancy between his deposition testimony and a witness statement he had written nine months earlier. At the deposition, Yanez said he had not witnessed the accident that injured Garcia, though in the earlier statement he said he had.

Two months later, Union Pacific fired Yanez for “dishonesty,” citing the deposition’s contents as support.

Geoffrey C. Hazard Jr., a professor at the University of California Hastings College of the Law who is recognized as one of the nation’s foremost experts on legal ethics, said Plummer should never have let it get to the point where he was impeaching his own client.

As soon as Yanez expressed his concerns, Plummer “should have then and there said, ‘We are going to set the deposition over and you will have to get another lawyer,’” Hazard said.

“It’s not often you get such a clear-cut example of an actual conflict,” Hazard said in a telephone interview Wednesday. “This was a serious problem and should have been obvious to Plummer.”

The Rules of Professional Conduct require lawyers to advise clients of actual or potential conflicts, explain the ramifications, and get written consent to represent them, Hazard said.

Instead, “Yanez presented evidence … that Plummer neither informed him about conflicts with Union Pacific nor obtained his written consent to represent him despite such conflicts,” according to a published opinion issued Tuesday by a three-justice panel of the 3rd District Court of Appeal in Sacramento.

After his firing, Yanez, 47, sued Plummer and the railroad for wrongful discharge, claiming the lawyer’s abandonment of his legal obligation to represent Yanez was calculated to portray Yanez “in the worst possible light” in order to benefit Plummer’s other client, Union Pacific. The railroad then relied on that “worst possible light” to fire Yanez, he contends in the suit.

“This is an important case,” Yanez’s attorney Larry Lockshin said Thursday. “It goes to the obligations these corporate attorneys have when they represent comparatively low-level employees of their corporate clients.

“It’s done more than you might think, and it has never before been litigated in California. The appeal court’s decision is correct. We’re ready to go to trial and confident we will win.”

Lockshin said there was a large monetary settlement with Garcia a week after Yanez’s deposition.

When Yanez, a machinist, was pulled off the job and his pay discontinued, he was told by Dennis Magures, director of Union Pacific’s locomotive facility in Roseville, that the Garcia suit “cost us a lot of money, and somebody’s going to have to pay for that,” according to Lockshin.

Yanez could not be reached for comment.

In his lawsuit against Plummer and Union Pacific, Yanez insists the discrepancy between his accounts was a simple wording mistake in the second of two witness statements he wrote shortly after Garcia’s on-the-job accident, but during the deposition, Plummer manufactured a sinister scenario.

Placer Superior Court Judge Colleen M. Nichols granted summary judgment in favor of Plummer, finding that Yanez did not show the lawyer’s conduct played a substantial role in him losing his job.

But the appellate panel reversed Nichols and sent the case back to Placer County.

The justices declared that “Yanez has presented a triable issue of material fact that, but for Plummer’s alleged malpractice, breach of fiduciary duty, and fraud, Yanez would not have been terminated.”

The opinion was written by Associate Justice M. Kathleen Butz. Presiding Justice Vance W. Raye and Associate Justice Andrea Lynn Hoch concurred.

Union Pacific spokesman Aaron Hunt said Wednesday in a prepared statement: “The allegation by Mr. Yanez that he was fired for reporting unsafe work conditions is false. Union Pacific followed the law and adhered to the collective bargaining terms in terminating Mr. Yanez. We disagree with this ruling by the 3rd District Court of Appeal and are considering appealing the decision to the California Supreme Court.”

Plummer, 39, did not respond to requests for comment.

Except for the 15 months immediately following his graduation in 2005 from the University of the Pacific’s McGeorge School of Law when he was working at a Fresno law firm, Plummer has spent his career as an attorney with Union Pacific.

His attorneys have argued in court that:

• their client had no involvement in the preparation of Yanez’s two witness statements;

• before Plummer’s questioning, Yanez contradicted the second statement by admitting to Garcia’s counsel at the deposition that he did not see Garcia’s fall on a grease-slickened floor;

• there was a formal investigation before Yanez was fired;

• Yanez had the opportunity at a disciplinary hearing to explain the discrepancy between his statement and the deposition testimony;

• and Plummer had no role in uncovering Yanez’s deception or in the process leading to his dismissal.

The justices saw it differently. Butz wrote:

“… it was Plummer who highlighted Yanez’s deposition testimony that he did not ‘see’ Garcia slip; it was Plummer who presented the second statement at the deposition; it was Plummer who got Yanez, under oath at the deposition, to effectively admit that his deposition testimony conflicted with the second statement; it was Plummer who did not offer Yanez a chance to explain this discrepancy, and it was Plummer who failed to present the first statement as an exhibit at Yanez’s deposition,” even though that statement “effectively acknowledged that Yanez did not see Garcia slip and fall.”