849 S.E.2d 617
W. Va.2020Background
- Scott A. Curnutte (admitted 1991) certified on his annual Financial Responsibility Disclosures (FRDs) for fiscal years 2015–2016, 2016–2017, and 2017–2018 that he and his firm had professional liability insurance, though his ALPS policy lapsed in March 2014. For 2017–2018 he entered a fictitious policy number.
- He also gave false insurance information to an attorney he employed so she could complete her FRD.
- The Office of Disciplinary Counsel (ODC) and Curnutte stipulated the facts at hearing and agreed his conduct violated Rule 8.4(c) (dishonesty, fraud, deceit or misrepresentation).
- The Hearing Panel Subcommittee (HPS) found two violations and recommended a 100‑day suspension plus six hours of ethics CLE, compliance with RLDP 3.28, payment of costs, and disclosure of efforts to procure insurance.
- This Court reviewed de novo the legal issues and sanctions but accepted stipulated facts as proving the violations and imposed a modified sanction: a 90‑day suspension with automatic reinstatement (RLDP 3.31) plus six hours ethics CLE, RLDP 3.28 duties, reimbursement of costs, and disclosure of efforts to obtain professional liability insurance.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether false FRD entries and providing false policy info to an employee violated Rule 8.4(c) | ODC/LDB: knowingly certified nonexistent insurance and told employee false info; constitutes dishonesty under Rule 8.4(c) | Curnutte stipulated the facts and did not contest that the conduct violated Rule 8.4(c) | Court found two violations of Rule 8.4(c) |
| Appropriate sanction for the misconduct | HPS/LDB: suspend (recommended 100 days) plus ethics CLE, RLDP 3.28 duties, repay costs, disclose insurance efforts | Curnutte sought a lesser sanction (did not propose a specific alternative) and presented mitigating evidence (reputation, pro bono, teaching) | Court imposed a 90‑day suspension with automatic reinstatement, 6 hours ethics CLE prior to reinstatement, compliance with RLDP 3.28, reimbursement of costs, and disclosure of efforts to obtain insurance |
Key Cases Cited
- Committee on Legal Ethics v. Blair, 174 W. Va. 494, 327 S.E.2d 671 (1984) (this Court is final arbiter of legal ethics)
- Committee on Legal Ethics v. McCorkle, 192 W. Va. 286, 452 S.E.2d 377 (1994) (de novo review of legal issues and deference to HPS findings of fact)
- Matter of Starcher, 202 W. Va. 55, 501 S.E.2d 772 (1998) (stipulated facts treated as proven by clear and convincing evidence)
- Office of Lawyer Disciplinary Counsel v. Jordan, 204 W. Va. 495, 513 S.E.2d 722 (1998) (factors to consider in imposing sanctions / Rule 3.16)
- Lawyer Disciplinary Board v. Scott, 213 W. Va. 209, 579 S.E.2d 550 (2003) (definitions of aggravating and mitigating factors)
- Lawyer Disciplinary Bd. v. Munoz, 240 W. Va. 42, 807 S.E.2d 290 (2017) (ninety‑day suspension for deceitful conduct precedent)
- Lawyer Disciplinary Bd. v. Losch, 219 W. Va. 316, 633 S.E.2d 261 (2006) (discipline for dishonest alteration/serving of documents)
- Office of Disciplinary Counsel v. Galford, 202 W. Va. 587, 505 S.E.2d 650 (1998) (one‑year suspension for forgery and deceit)