Are You My Attorney?

By Daniel Richardson

Handverger v. City of Winooski, 2011 VT 134.

Round two in the dispute between the City of Winooski and its former City Manager came out two weeks after the first. 

Where the first case focused on the process due to plaintiff for his termination, the second focuses on the relationship between plaintiff and the City’s Attorney.

It is no spoiler to say that the relationship between the two was not good.  To put it in generic terms, anytime your corporation’s legal counsel sends a public letter to the Board of Directors demanding your termination you should be dusting off the resume and preparing exit strategies.  Furthermore, that attorney is not your friend and is unlikely to be advocating or offering advice on your behalf.

The gist of plaintiff’s claim in this case is that the City’s Attorney was, in fact, his attorney and that his subsequent letters and demands that he be fired breached the duty that every attorney owes a client and effectively embarrassed plaintiff in public.

The trial court and the SCOV on appeal reject this argument under the two variations offered by plaintiff.

The first variation is that the City Attorney owed plaintiff a duty by virtue of plaintiff’s role as City Manager.  The SCOV notes that a municipal attorney, like any attorney for a corporation, only owes a duty to the municipality itself.  He was never plaintiff’s attorney and to the extent that he interacted with plaintiff, it was in plaintiff’s capacity as an officer of the city.  Because there was no evidence that the City Attorney represented this relationship to be otherwise and because this dispute fell outside of plaintiff’s official duty as an agent of the City, there is no fiduciary duty.

In other words, there was never an attorney–client relationship between the City Attorney and plaintiff.  With no relationship, there is no basis for a claim of duty to plaintiff and no breach of such a duty. 

Plaintiff’s second variation is to urge the SCOV to see a fiduciary duty based on plaintiff’s extensive work with the City Attorney and the advice sought and obtained from the City Attorney.  Again, the SCOV does not bite.  Certainly, if the City Attorney had advocated for or advised plaintiff on a personal level, there would be a fiduciary duty.  But the facts here show no such personal relationship. 

Plaintiff cites to several cases where the SCOV or another jurisdiction was willing to read a fiduciary relationship into the relationship between an attorney and a staff member or officer, but the SCOV distinguishes these cases by showing that in each and every one there was some type of ownership stake or interest that made the individual more than just an “officer” of the entity, but rather an owner or partial owner of it.  Without that stake in the City, plaintiff cannot claim a fiduciary relationship, and City Attorney is found to have no elevated duty of care toward plaintiff. 

Without a relationship, plaintiff’s claims necessarily fail.  The City Attorney acted against plaintiff’s personal interests, but he acted in the City’s interest, which means no cause of action lies against the City Attorney.  Case is dismissed. 

Plaintiff has another strike out.  Perhaps his federal court claim is faring better.