Present: All the Justices 

MICHAEL PATRICK WEATHERBEE 

v. Record No. 091376 OPINION BY 

CHIEF JUSTICE LEROY ROUNTREE HASSELL, SR. 

VIRGINIA STATE BAR, ex rel. February 25, 2010 

FOURTH DISTRICT – SECTION I COMMITTEE 

FROM THE CIRCUIT COURT OF ARLINGTON COUNTY 

Thomas D. Horne, William H. Ledbetter, Jr., and Arthur B. 

Vieregg, Jr., Judges Designate 

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 

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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, 

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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 

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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 

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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 

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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 law.” 

Va. Sup. Ct. R., Part 6, § II, R. 3.1, cmt. 2. 

The State Bar established by clear and convincing evidence 

that Broyles was not Dr. Vaughan’s patient at the time of the 

complained-of surgical procedure and that Dr. Vaughan was 

neither present during her surgery nor provided post-surgical 

care to her. In fact, Dr. Vaughan did not even have medical 

privileges to practice medicine at Warren County Hospital, 

where Broyles’ surgery occurred. Weatherbee did not even 

attempt to obtain Broyles’ authorization to acquire Dr. 

Vaughan’s medical records that related to Broyles. This simple 

act would have revealed that Dr. Vaughan had no involvement in 

Broyles’ surgery. There are other actions that Weatherbee 

could have undertaken, but failed to perform, that would have 

informed him that Dr. Vaughan had no involvement whatsoever in 

the treatment and surgery of Broyles. 

Weatherbee cannot make a good-faith argument that he 

should have filed an action against Dr. Vaughan, who had 

absolutely no legal duty to Broyles, and Weatherbee’s 

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preliminary research should have revealed such information. We 

also note that Weatherbee alleged in his pleading that Dr. 

Vaughan was an employee of Warren Memorial Hospital, which was 

an allegation the falsity of which could have been discovered. 

Weatherbee also asserted in his pleadings that Dr. Vaughan 

treated Broyles, which was also false. 

The record demonstrates by clear and convincing evidence 

that Weatherbee’s action against Dr. Vaughan was frivolous 

because the lawsuit had no basis in law or fact. We hold that 

the circuit court did not err when it concluded by clear and 

convincing evidence that Weatherbee’s filing of the lawsuit 

against Dr. Vaughan was frivolous within the meaning of Rule 

3.1. 

B. 

The circuit court held that Weatherbee did not violate 

Rule 1.1 that relates to legal competence, and the State Bar 

assigns cross-error to this holding. Rule 1.1 states: 

“Competence.

A lawyer shall provide competent 

representation to a client. Competent 

representation requires the legal knowledge, 

skill, thoroughness and preparation reasonably 

necessary for the representation.” 

 We have stated that “[w]hether an attorney is subject to 

discipline for failing to provide competent representation is a 

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matter decided on a case by case basis.” Barrett, 272 Va. at 

272, 634 S.E.2d at 347. 

As we have already noted, the circuit court conducted an 

ore tenus hearing and considered evidence that was, at times, 

conflicting. Even though we conduct an independent examination 

of the entire record, we accord the circuit court’s factual 

findings substantial weight and view those findings as prima 

facie correct. And, although we do not give the circuit 

court’s conclusions the same 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 the law. Barrett, 272 Va. at 269, 634 S.E.2d at 346; 

Pappas, 271 Va. at 586, 628 S.E.2d at 537; El-Amin v. Virginia 

State Bar, 257 Va. 608, 612, 514 S.E.2d 163, 165 (1999); Blue, 

220 Va. at 1061-62, 265 S.E.2d at 757. 

Based upon the record before this Court, we cannot 

conclude that the circuit court’s factual findings that 

Weatherbee did not violate Rule 1.1 are not justified by a 

reasonable view of the evidence or are contrary to the law. We 

have held without failure that the factual conclusions of a 

three-judge court in a disciplinary proceeding “while not 

carrying the weight of a jury verdict, will be sustained unless 

they are not justified by the evidence or are contrary to law.” 

Barrett, 272 Va. at 269, 634 S.E.2d at 346. We cannot and will 

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not hold on the record before us, that as a matter of law the 

circuit court’s conclusions are not justified by a reasonable 

view of the evidence or those conclusions are contrary to the 

law. Pilli v. Virginia State Bar, 269 Va. 391, 396, 611 S.E.2d 

389, 391 (2005); Williams v. Virginia State Bar, 261 Va. 258, 

264, 542 S.E.2d 385, 389 (2001); Myers v. Virginia State Bar, 

226 Va. 630, 632, 312 S.E.2d 286, 287 (1984). 

 We reject Weatherbee’s argument that as a matter of law, 

he did not violate Rule 3.1 because the circuit court held that 

he did not violate Rule 1.1. These Rules are separate and 

distinct. Rule 1.1 relates to attorney competence, while Rule 

3.1 relates to the filing of a frivolous proceeding. These 

Rules impose different professional responsibilities upon an 

attorney and these Rules are not duplicative, repetitive, or 

synonymous. The circuit court was permitted to conclude, based 

upon the record before it, that Weatherbee violated Rule 3.1 

but not Rule 1.1. The litigants’ remaining arguments are 

without merit. 

 Accordingly, we will affirm the judgment of the circuit 

court. 

Affirmed. 

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