Handverger v. City of Winooski, 2011 VT 134 (Burgess, J. )

Plaintiff, the former city manager of Winooski, appeals from the trial court’s summary judgment in favor of the Winooski city attorney. Plaintiff sued the city attorney, individually, for breach of fiduciary duty in the course of municipal infighting over plaintiff’s performance as manager and the city’s decision to dismiss him. Plaintiff’s complaint is that the city attorney breached a duty of loyalty by threatening cross-examination at a municipal hearing and by signing a disparaging letter and press release calling for his resignation. The trial court determined that the city attorney owed plaintiff no fiduciary duty beyond the attorney’s duty to the city. We affirm.

There was no evidence or finding that the city attorney, implicitly or explicitly, represented plaintiff individually or in any capacity other than as city manager. Lacking any lawyer-client relationship the city attorney did not owe plaintiff a duty of faithful conduct for the personal benefit of plaintiff.

Nor did a fiduciary duty exist by operation of law due to the parties’ dealings. In Bovee v. Gravel, 174 Vt. 486, 811 A.2d 137 (2002) (mem.), we acknowledged some jurisdictions relax the strict attorney-client privity basis for legal malpractice where injured third parties could show the “client’s purpose in retaining the attorney was to directly benefit a third party.” 174 Vt. at 488, 811 A.2d at 140. Plaintiff presents nothing approaching such a relationship of privity between himself and the city attorney. There is no evidence that the attorney was appointed or retained to serve plaintiff’s personal interests. Nor is there evidence of surrounding circumstances, or interaction between the parties, suggesting a blurring of municipal objectives with plaintiff’s own.