Lawyer Disciplinary Bd. v. Curnutte

• Decision Date: 16 October 2020
• Docket Number: No. 19-0636,19-0636
• Citation: 849 S.E.2d 617
• Parties: LAWYER DISCIPLINARY BOARD, Petitioner v. Scott A. CURNUTTE, Respondent
• Court: West Virginia Supreme Court

849 S.E.2d 617

LAWYER DISCIPLINARY BOARD, Petitioner

v.Scott A. CURNUTTE, Respondent

No. 19-0636

Supreme Court of Appeals of West Virginia.

Submitted: September 22, 2020

Filed: October 16, 2020

Rachael L. Fletcher Cipoletti, Chief Lawyer Disciplinary Counsel, Andrea J. Hinerman, Senior Lawyer Disciplinary Counsel, Office of Lawyer Disciplinary Counsel, Charleston, West Virginia, Attorneys for the Petitioner.

Scott A. Curnutte, Curnutte Law, Elkins, West Virginia, Self-Represented Litigant.

Jenkins, Justice:

This lawyer disciplinary proceeding originated with a "Statement of Charges" by the Lawyer Disciplinary Board ("LDB") against Scott A. Curnutte ("Mr. Curnutte") alleging that he violated the West Virginia Rules of Professional Conduct by providing false information about his professional liability insurance coverage to the West Virginia State Bar ("State Bar"). For three consecutive fiscal years, Mr. Curnutte submitted his annual Financial Responsibility Disclosure ("FRD") falsely certifying that he was covered under a policy of professional liability insurance, when, in fact, he had no such coverage. He also lied about having such coverage to a lawyer he employed, causing that lawyer to similarly provide false information to the State Bar.

The Hearing Panel Subcommittee ("HPS") of the LDB has concluded, and Mr. Curnutte and the Office of Lawyer Disciplinary Counsel ("ODC") have stipulated, that Mr. Curnutte's dishonesty violated the Rules of Professional Conduct. The HPS recommends that this Court suspend Mr. Curnutte's license to practice law for one-hundred days. In addition, the HPS recommends that Mr. Curnutte be required to complete an additional six hours of Continuing Legal Education in ethics; to comply with the duties of suspended lawyers set out in Rule 3.28 of the West Virginia Rules of Lawyer Disciplinary Procedure ("RLDP"); to reimburse the costs of these proceedings; and to fully and accurately disclose to the LDB what efforts, if any, he has made to procure professional liability insurance. After a careful review of the record developed in this disciplinary proceeding, and upon a thorough consideration of the parties’ briefs, their oral arguments, and the relevant law, we conclude that Mr. Curnutte has twice violated a Rule of Professional Conduct as alleged. However, we determine that a ninety-day suspension with automatic reinstatement pursuant to RLDP 3.31, along with the other recommended sanctions modified to comport with automatic reinstatement, provides an adequate sanction for Mr. Curnutte's misconduct.

I.FACTUAL AND PROCEDURAL HISTORY

Mr. Curnutte is a lawyer practicing in Elkins, West Virginia. Having passed the bar exam, he was admitted to the West Virginia State Bar on September 23, 1991; therefore, he is subject to the disciplinary jurisdiction of this Court and its properly constituted LDB.

Article III(A), Section 2, of the State Bar By-Laws that were in effect at the time relevant to these proceedings,¹ required every active lawyer engaged in the private practice of law to disclose whether he or she was covered by professional liability insurance, and, if not covered, whether the lawyer had another form of adequate financial responsibility:

§ 2. Disclosure.

Every active lawyer shall disclose to the West Virginia State Bar on or before September 1 of each year: (1) whether the lawyer is engaged in the private practice of law; (2) if so engaged, whether the lawyer is currently covered by professional liability insurance with limits of not less than $100,000 per claim and $300,000 policy aggregate covering generally insurable acts, errors and omissions occurring in the practice of law, other than an extended reporting endorsement; (3) if the lawyer is so engaged and not covered by professional liability insurance in the above minimum amounts, whether the lawyer has another form of adequate financial responsibility which means funds, in an amount not less than $100,000, available to satisfy any liability of the lawyer arising from acts or omissions by the lawyer or other persons employed or otherwise retained by the lawyer and that these funds shall be available in the form of a deposit in a financial institution of cash, bank certificate of deposit or United States Treasury obligation, a bank letter of credit or a surety or insurance company bond and describing same with reasonable particularity; (4) whether there is any unsatisfied final judgment(s) after appeal against either the lawyer, or any firm or any professional corporation in which the lawyer has practiced, for acts, errors or omissions, including, but not limited to, acts of dishonesty, fraud or intentional wrongdoing, arising out of the performance of legal services by the lawyer, including the date, amount and court where the judgment(s) was rendered; and (5) whether the lawyer is exempt from the provisions of this Rule because the lawyer is engaged in the practice of law as a full-time government lawyer or in-house counsel and does not represent clients outside that capacity. It is the duty of every active lawyer to report any changes which occur.

W. Va. State Bar By-Laws, art. III(A), § 2. The State Bar By-Laws further required that "[t]he foregoing shall be certified by each active lawyer admitted to practice law in West Virginia on the State Bar's Active Membership Fee Notice and shall be made available to the public by such means as may be designated by the West Virginia State Bar." W. Va. State Bar By-Laws, art. III(A), § 3.

For three consecutive fiscal years, 2015-2016, 2016-2017, and 2017-2018, Mr. Curnutte certified to the State Bar on his FRD that he and his law firm, Curnutte Law, were insured under a professional liability policy issued by ALPS. Contrary to his disclosure, his ALPS policy had lapsed in March 2014. When reporting for fiscal years 2015-2016 and 2016-2017, the policy number of Mr. Curnutte's ALPS policy appeared on his electronic FRD form without him having to input the number. He submitted the form falsely certifying that the policy was still in effect. For fiscal year 2017-2018, no policy number appeared on the electronic FRD form, so Mr. Curnutte entered a fictitious policy number and submitted the form falsely certifying he had professional liability insurance. In addition, Mr. Curnutte hired a lawyer to work for his firm sometime in or around 2015.² When that lawyer requested policy information to complete her own FRD form, Mr. Curnutte provided her with false information. He stated that he "pulled up [his] own information on the [State Bar website] and then just read it off to her."

Formal charges against Mr. Curnutte were filed in this Court in July 2019. Because Mr. Curnutte, for three consecutive fiscal years, certified to the State Bar on his FRD that he was covered by professional liability insurance when he knew that this information was false, the LDB charged him with violating Rule 8.4(c) of the West Virginia Rules of Professional Conduct.³ He was charged with a second violation of Rule 8.4(c) for providing false information about professional liability insurance coverage to his lawyer employee. He timely filed his answer to the statement of charges in August 2019, and an evidentiary hearing was held on October 22, 2019. On that same day, Mr. Curnutte, who was self-represented, and the ODC stipulated to the facts relating to his deceptive conduct, the fact that his conduct twice violated Rule 8.4(c), and the way in which his conduct satisfied the considerations of RLDP 3.16. They additionally stipulated that Mr. Curnutte knew it was a misrepresentation when he indicated on his electronic FRD that he had professional liability insurance coverage, and, further, that when he provided insurance information to his lawyer employee for purposes of her FRD, he knew the information was false.

The HPS filed its report on February 13, 2020, wherein it found that the evidence presented established that Mr. Curnutte committed two violations of Rule 8.4(c) of the Rules of Professional Conduct. The HPS recommends the following sanctions:

A. That Respondent's law license be suspended for one hundred (100) days;

B. That prior to filing a petition for reinstatement pursuant to Rule 3.32 of the Rules of Lawyer Disciplinary Procedure, Respondent must complete an additional six (6) hours of [Continuing Legal Education] in ethics;

C. That Respondent must comply with the mandates of Rule 3.28^[4] of the Rules of Lawyer Disciplinary Procedure; and

D. That prior to filing a petition for reinstatement pursuant to Rule 3.32 of the Rules of Lawyer Disciplinary Procedure, Respondent must reimburse the costs of these proceedings pursuant to Rule 3.15^[5] of the Rules of Lawyer Disciplinary Procedure; and E. That at the time of filing a petition for reinstatement pursuant to Rule 3.32 of the Rules of Lawyer Disciplinary Procedure, Respondent shall fully and accurately disclose to the Lawyer Disciplinary Board what efforts, if any, he has made to procure professional liability insurance.

The LDB argues in favor of this Court adopting the recommendations of the HPS. Mr. Curnutte appears to advocate a less severe sanction; although, he does not suggest what sanction he believes would be appropriate.

II.STANDARD OF REVIEW

While we receive recommendations from the HPS in lawyer disciplinary matters, it is well established that "[t]his Court is the final arbiter of legal ethics problems and must make the ultimate decisions about public reprimands, suspensions[,] or annulments of attorneys’ licenses to practice law." Syl. pt. 3, Comm. on Legal Ethics v. Blair , 174 W. Va. 494, 327 S.E.2d 671 (1984). Accordingly, our review is plenary:

A de novo standard applies to a review of the adjudicatory record made before the [Hearing Panel Subcommittee ("HPS") of the Lawyer Disciplinary Board] as to questions of law, questions of application of the law to the facts, and questions of appropriate sanctions; this Court gives respectful

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