LEGAL ETHICS – DISCIPLINE –
SIGNIFICANCE OF FILING FRIVOLOUS LAWSUIT.
An attorney disciplinary case appealed from a three-judge court is of
some interest in that it has some very precise reasoning as to the kind of
misconduct that filing a totally frivolous lawsuit constitutes and does
not. An attorney who filed a
medical malpractice suit included among the defendants a doctor who never treated
the attorney’s client. The disciplinary board convicted Mr. Weatherbee of
violating Rule 1.3, concerning diligence, and Rule 3.1 that governs the filing
of meritorious claims, but it went on to hold that the same act made the lawyer
guilty of providing incompetent representation. When the three-judge court got the case it found a Rule 3.1
violation (filing a frivolous lawsuit).
It dismissed the charges under Rules 1.1 and 1.3. The Virginia State Bar appealed the
dismissal of the Rule 1.1 charge of providing incompetent legal services. The Supreme Court, with some very
instructive explanation, alludes to the definition of frivolous and of the term of art “competent representation,” and
reasons that an attorney does not have to be incompetent to file a frivolous
lawsuit, and we should not make a habit of parlaying one offense and one
punishment automatically into another.
It considered Mr. Weatherbee to be adequately punished for committing
the offense that he did commit.
Incidentally, trying to flip 180 degrees the very judicial reasoning
that saved him and argue that because he didn’t violate Rule 1.1 he couldn’t
have filed a frivolous lawsuit did the attorney no good whatever. Weatherbee
v. VSB, ___ Va. ___, 689 S.E.2d 753 (2/25/10).