Weatherbee v. Virginia State Bar ex rel. Fourth District-Section I Committee

• Decision Date: 25 February 2010
• Docket Number: Record No. 091376.
• Citation: 689 S.E.2d 753
• Parties: Michael Patrick WEATHERBEE v. VIRGINIA STATE BAR, ex rel. FOURTH DISTRICT-SECTION I COMMITTEE.
• Court: Virginia Supreme Court

689 S.E.2d 753

Michael Patrick WEATHERBEE v. VIRGINIA STATE BAR, ex rel. FOURTH DISTRICT-SECTION I COMMITTEE.

Record No. 091376.

Supreme Court of Virginia.

February 25, 2010.

Michael L. Rigsby, Richmond, for appellant.

Stephen M. Hall, Assistant Attorney General (William C. Mims, Attorney General; Maureen Riley Matsen, Deputy Attorney General; Peter R. Messitt, Senior Assistant Attorney General, on brief), for appellee.

Present: All the Justices.

OPINION BY Chief Justice LEROY ROUNTREE HASSELL, SR.

I.

In this appeal of right from a judgment entered by a three-judge circuit court in a lawyer disciplinary proceeding, we consider whether an attorney violated Rules 1.1 and 3.1 of the Virginia Rules of Professional Conduct.

II.

The Virginia State Bar filed disciplinary charges against Michael Patrick Weatherbee, asserting that he had violated Rule 1.1, that governs competence, Rule 1.3, that relates to diligence, and Rule 3.1, that governs the filing of meritorious claims.

Weatherbee made a demand, pursuant to Part 6 of the Rules of Court, Section IV, Paragraph 13-16(B)(2) and Code § 54.1-3935, that a three-judge circuit court adjudicate the charges of misconduct against him. At the conclusion of an ore tenus hearing, the court found by clear and convincing evidence that Weatherbee violated Rule 3.1 and the court dismissed the charges relating to the alleged violations of Rules 1.1 and 1.3. The court entered a judgment that imposed a public reprimand without terms upon Weatherbee. Weatherbee appeals and the State Bar assigns cross-error to the circuit court's failure to hold by clear and convincing evidence that Weatherbee had violated Rule 1.1.

III.

A.

Upon our review of this attorney disciplinary civil proceeding, the State Bar has the burden of proving by clear and convincing evidence that the attorney violated the relevant Rules of Professional Conduct. Barrett v. Virginia State Bar, 272 Va. 260, 268 n. 4, 634 S.E.2d 341, 345 n. 4 (2006); Blue v. Seventh District Committee, 220 Va. 1056, 1062, 265 S.E.2d 753, 757 (1980); Seventh District Committee v. Gunter, 212 Va. 278, 284, 183 S.E.2d 713, 717 (1971). Additionally:

"The standard of review we apply to the [judgment] of a three-judge court in a Bar disciplinary proceeding is the same as the standard applicable to decisions of the Disciplinary Board. We conduct an independent examination of the entire record. We consider the evidence and all reasonable inferences that may be drawn from the evidence in the light most favorable to the Bar, the prevailing party in the trial court. We accord the trial court's factual findings substantial weight and view those findings as prima facie correct. Although we do not give the trial court's conclusions the weight of a jury verdict, we will sustain those conclusions unless it appears that they are not justified by a reasonable view of the evidence or are contrary to law. See Pilli [v. Virginia State Bar, 269 Va. at 391, 396, 611 S.E.2d at 389, 391 (2005) ]."

Anthony v. Virginia State Bar, 270 Va. 601, 608-09, 621 S.E.2d 121, 125 (2005); see also Barrett v. Virginia State Bar, 277 Va. 412, 413, 675 S.E.2d 827, 828 (2009); Barrett, 272 Va. at 268-69, 634 S.E.2d at 345-46; Pappas v. Virginia State Bar, 271 Va. 580, 585-86, 628 S.E.2d 534, 537 (2006). Furthermore, when we review the State Bar's assignment of cross-error, we will consider the evidence and all reasonable inferences that may be drawn in the light most favorable to Weatherbee, the prevailing party on this issue in the circuit court.

B.

Weatherbee, who is licensed to practice law in Virginia, filed an action on behalf of Dianna Broyles, styled Broyles v. Backer, et al., in the Circuit Court of Warren County. Weatherbee alleged, among other things, that Dr. Ward P. Vaughan and other health care providers breached the duty of care owed to Broyles. Broyles had been a patient at the Warren Memorial Hospital in Warren County, Virginia, where a surgical procedure was performed on her. However, Dr. Vaughan had no involvement whatsoever in Broyles' medical procedure or medical care. Additionally, when Broyles' surgical procedure that was the subject of the lawsuit against Dr. Vaughan was performed, Dr. Vaughan was not a member of the medical staff at Warren Memorial Hospital and did not have medical privileges to practice any medical procedures at the hospital.

Weatherbee never requested that Dr. Vaughan provide copies of medical records that he may have had regarding Dianna Broyles. Weatherbee admitted that at no time did he contact Dr. Vaughan to ascertain whether Broyles had been his patient and whether Dr. Vaughan participated in the surgery that was the subject of the lawsuit.

When State Bar Investigator David W. Jackson asked Weatherbee why he identified Dr. Vaughan as a defendant in the lawsuit, Weatherbee gave the following explanation. Weatherbee obtained an operative report related to Broyles' surgery and this report indicated that "Bob Vaughan" served as an assistant to Dr. Joel Evan Backer, the physician who actually performed Broyles' surgery. Weatherbee also learned from a website maintained by the Virginia Board of Medicine that fifteen physicians with the last name "Vaughan" were licensed to practice in Virginia, three of whom specialized in obstetrics and gynecology. Two of these three individuals were women whose practices were located outside of Virginia. Weatherbee erroneously deduced that the remaining physician, Dr. Ward P. Vaughan, who practiced obstetrics and gynecology in Winchester, Virginia, was the individual identified as "Bob Vaughan" in the operative report. Also, Broyles' former attorney, Frederic Ornitz, interviewed the chair of the obstetrics and gynecology department at Warren Memorial Hospital. According to Ornitz, the chair of this department informed Ornitz that Dr. Vaughan had privileges to practice at Warren Memorial Hospital.

Weatherbee's wife, Janet Weatherbee, is a licensed registered nurse who assists Michael Weatherbee with his review of medical records. She acknowledged that Broyles' surgical operative record indicated that "Bob Vaughan," not Dr. Ward P. Vaughan, assisted Dr. Backer in Broyles' surgery. Even though the operative record did not indicate Bob Vaughan's professional status, Mrs. Weatherbee testified that she was certain that Bob Vaughan was a physician because in her experience the operative record does not always include the titles of the professionals present during the surgery.

Mrs. Weatherbee and Ornitz testified that they contacted Warren Memorial Hospital in an effort to ascertain the identity of "Bob Vaughan." However, hospital policies prevented the hospital personnel from providing such information to them.

Consequently, Weatherbee filed a lawsuit against Dr. Vaughan, who was not present and had no involvement in the treatment of Broyles. The lawsuit had a deleterious impact upon Dr. Vaughan's practice. He lost patients and he was subject to ridicule and scorn. A local radio station repeatedly informed its listeners, approximately once each hour for a full day, that Dr. Vaughan had been sued for medical malpractice. Also, the litigation against Dr. Vaughan was reported on a local television station.

IV.

A.

Rule 3.1 of the Rules of Professional Conduct states in relevant part:

"Meritorious Claims and Contentions.

A lawyer shall not bring or defend a proceeding, or assert or controvert an issue therein, unless there is a basis for doing so that is not frivolous...."

Weatherbee argues that the circuit court erred by holding that he violated Rule 3.1. We disagree with Weatherbee.

Rule 3.1, among other things, prohibits an attorney from filing a lawsuit unless there is a basis for doing so that is not frivolous. In Byrd v. Byrd, 232 Va. 115, 116, 348 S.E.2d 262, 262 (1986), we considered whether a divorce proceeding that a litigant had filed was frivolous. We stated:

"`Frivolous' is defined: `Of little weight or importance, having no basis in law or fact: light, slight, sham, irrelevant, superficial.'"

Id. at 120, 348 S.E.2d at 265 (citation omitted).

We have stated in our commentary to Rule 3.1 that:

"The filing of an action or defense or similar action taken for a client is not frivolous merely because the facts have not first been fully substantiated or because the lawyer expects to develop vital evidence only by discovery. Such action is not frivolous even though the lawyer believes that the client's position ultimately will not prevail. The action is frivolous, however, if the client desires to have the action taken primarily for the purpose of harassing or maliciously injuring a person, or if the lawyer is unable either to make a good faith argument on the merits of the action taken or to support the action taken by a good faith argument for an extension, modification or reversal of existing...