Lawyer Disciplinary Board v. Scott A. Curnutte ( 2020 )

IN THE SUPREME COURT OF APPEALS OF WEST VIRGINIA
September 2020 Term
_____________ FILED
October 16, 2020
No. 19-0636 released at 3:00 p.m.
EDYTHE NASH GAISER, CLERK
_____________ SUPREME COURT OF APPEALS
OF WEST VIRGINIA
LAWYER DISCIPLINARY BOARD,
Petitioner
V.
SCOTT A. CURNUTTE,
Respondent
________________________________________________
Lawyer Disciplinary Proceeding
No. 18-01-033
LAW LICENSE SUSPENDED AND OTHER SANCTIONS IMPOSED
________________________________________________
Submitted: September 22, 2020
Filed: October 16, 2020
Rachael L. Fletcher Cipoletti Scott A. Curnutte
Chief Lawyer Disciplinary Counsel Curnutte Law
Andrea J. Hinerman Elkins, West Virginia
Senior Lawyer Disciplinary Counsel Self-Represented Litigant
Office of Lawyer Disciplinary Counsel
Charleston, West Virginia
Attorneys for the Petitioner
JUSTICE JENKINS delivered the Opinion of the Court.
SYLLABUS BY THE COURT
1. “This 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.” Syllabus point 3, Committee on Legal Ethics v. Blair, 174 W. Va.
494, 327 S.E.2d 671 (1984).
2. “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 consideration to the [HPS’s]
recommendations while ultimately exercising its own independent judgment. On the other
hand, substantial deference is given to the [HPS’s] findings of fact, unless such findings
are not supported by reliable, probative, and substantial evidence on the whole record.”
Syllabus point 3, Committee on Legal Ethics v. McCorkle, 192 W. Va. 286, 452 S.E.2d 377
(1994).
3. “[W]here the parties enter into stipulations of fact, the facts so
stipulated will be considered to have been proven as if the party bearing the burden of proof
has produced clear and convincing evidence to prove the facts so stipulated.” Syllabus
point 4, in part, Matter of Starcher, 202 W. Va. 55, 501 S.E.2d 772 (1998).
i
4. “Rule 3.16 of the West Virginia Rules of Lawyer Disciplinary
Procedure enumerates factors to be considered in imposing sanctions and provides as
follows: ‘In imposing a sanction after a finding of lawyer misconduct, unless otherwise
provided in these rules, the Court [West Virginia Supreme Court of Appeals] or Board
[Lawyer Disciplinary Board] shall consider the following factors: (1) whether the lawyer
has violated a duty owed to a client, to the public, to the legal system, or to the profession;
(2) whether the lawyer acted intentionally, knowingly, or negligently; (3) the amount of
the actual or potential injury caused by the lawyer’s misconduct; and (4) the existence of
any aggravating or mitigating factors.’” Syllabus point 4, Office of Lawyer Disciplinary
Counsel v. Jordan, 204 W. Va. 495, 513 S.E.2d 722 (1998).
5. “Aggravating factors in a lawyer disciplinary proceeding are any
considerations or factors that may justify an increase in the degree of discipline to be
imposed.” Syllabus point 4, Lawyer Disciplinary Board v. Scott, 213 W. Va. 209, 579
S.E.2d 550 (2003).
6. “Mitigating factors in a lawyer disciplinary proceeding are any
considerations or factors that may justify a reduction in the degree of discipline to be
imposed.” Syllabus point 2, Lawyer Disciplinary Board v. Scott, 213 W. Va. 209, 579
S.E.2d 550 (2003).
ii
7. “Mitigating factors which may be considered in determining the
appropriate sanction to be imposed against a lawyer for violating the Rules of Professional
Conduct include: (1) absence of a prior disciplinary record; (2) absence of a dishonest or
selfish motive; (3) personal or emotional problems; (4) timely good faith effort to make
restitution or to rectify consequences of misconduct; (5) full and free disclosure to
disciplinary board or cooperative attitude toward proceedings; (6) inexperience in the
practice of law; (7) character or reputation; (8) physical or mental disability or impairment;
(9) delay in disciplinary proceedings; (10) interim rehabilitation; (11) imposition of other
penalties or sanctions; (12) remorse; and (13) remoteness of prior offenses.” Syllabus point
3, Lawyer Disciplinary Board v. Scott, 213 W. Va. 209, 579 S.E.2d 550 (2003).
8. “‘“‘In deciding on the appropriate disciplinary action for ethical
violations, this Court must consider not only what steps would appropriately punish the
respondent attorney, but also whether the discipline imposed is adequate to serve as an
effective deterrent to other members of the Bar and at the same time restore public
confidence in the ethical standards of the legal profession.’ Syllabus Point 3, Committee
on Legal Ethics v. Walker, 178 W. Va. 150, 358 S.E.2d 234 (1987).” Syllabus Point 5,
Committee on Legal Ethics v. Roark, 181 W. Va. 260, 382 S.E.2d 313 (1989).’ Syllabus
Point 2, Committee on Legal Ethics v. White, 189 W. Va. 135, 428 S.E.2d 556 (1993).”
Syllabus point 4, Committee on Legal Ethics v. McCorkle, 192 W. Va. 286, 452 S.E.2d 377
(1994).
iii
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,
1
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
1
By order entered on December 30, 2019, this Court approved and adopted
revisions to the governance documents of the State Bar. Former Article III(A), Section 2,
of the State Bar By-Laws was replaced with the following provision:
Bylaw 4.01. Required annual disclosure. Upon
admission to the Practice of Law in West Virginia, and with
each subsequent annual membership payment, each active
member of the State Bar is required to disclose information
about the member’s financial responsibility for professional
liability claims. Failure to provide the disclosure in the manner
set forth in State Bar Administrative Rule 4 will result in
2
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
penalties and subject the member to possible suspension as set
forth in Rule 4.
W. Va. State Bar By-Laws, art. 4.
3
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.
Mr. Curnutte had become a solo practitioner in or about 2014 after two
2
attorney employees left his firm.
4
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.
3
West Virginia Rule of Professional Conduct 8.4(c) provides, in relevant
part, that “[i]t is professional misconduct for a lawyer to: . . . engage in conduct involving
dishonesty, fraud, deceit or misrepresentation[.]”
5
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
4
RLDP 3.28 sets out the duties of disbarred or suspended lawyers and
provides that
(a) A disbarred or suspended lawyer shall promptly
notify by registered or certified mail, return receipt requested,
or by first-class mail with the prior consent of the Office of
Disciplinary Counsel, all clients being represented in pending
matters, other than litigated or administrative matters or
proceedings pending in any court [or] agency, of the lawyer’s
inability to act as a lawyer after the effective date of disbarment
or suspension and shall advise said clients to seek legal advice
elsewhere. Failure of a disbarred or suspended lawyer to notify
all clients of his or her inability to act as a lawyer shall
constitute an aggravating factor in any subsequent disciplinary
proceeding.
(b) A disbarred or suspended lawyer shall promptly
notify by registered or certified mail, return receipt requested,
or by first-class mail with the prior consent of the Office of
Disciplinary Counsel, each of the lawyer’s clients who is
involved in litigated or administrative matters or proceedings
pending, of the lawyer’s inability to act as a lawyer after the
effective date of disbarment or suspension and shall advise said
client to promptly substitute another lawyer in his or her place.
In the event the client does not obtain substitute counsel before
6
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
the effective date of the disbarment or suspension, it shall be
the responsibility of the disbarred or suspended lawyer to move
pro se in the court or agency in which the proceeding is pending
for leave to withdraw as counsel. The notice to be given to the
lawyer for any adverse party shall state the place of residence
of the client of the disbarred or suspended lawyer.
(c) The disbarred or suspended lawyer, after entry of the
disbarment or suspension order, shall not accept any new
retainer or engage as attorney for another in any new case or
legal matter of any nature. During the period from the entry
date of the order to its effective date, however, the lawyer may
wind up and complete, on behalf of any client, all matters
which were pending on the entry date. Within twenty days
after the effective date of the disbarment or suspension order,
the lawyer shall file under seal with the Supreme Court of
Appeals an affidavit showing (1) the names of each client being
represented in pending matters who were notified pursuant to
subsections (a) and (b); (2) a copy of each letter of notification
which was sent; (3) a list of fees and expenses paid by each
client and whether escrowed funds have been or need to be
reimbursed; and (4) an accounting of all trust money held by
the lawyer on the date the disbarment or suspension order was
issued. Such affidavit shall also set forth the residence or other
address of the disbarred or suspended lawyer where
communications may thereafter be directed and a list of all
other courts and jurisdictions in which the disbarred or
suspended lawyer is admitted to practice. A copy of this report
shall also be filed with the Office of Disciplinary Counsel.
5
The relevant portion of RLDP 3.15 provides that,
[w]hen a sanction is imposed, the Hearing Panel Subcommittee
or the Court shall order the lawyer to reimburse the Lawyer
Disciplinary Board for the costs of the disciplinary proceeding
unless the panel or the Court finds the reimbursement will pose
7
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 consideration to the [HPS’s] recommendations
while ultimately exercising its own independent judgment. On
the other hand, substantial deference is given to the [HPS’s]
findings of fact, unless such findings are not supported by
an undue hardship on the lawyer. Willful failure to reimburse
the Board may be punished as contempt of the Court.
8
reliable, probative, and substantial evidence on the whole
record.
Syl. pt. 3, Comm. on Legal Ethics v. McCorkle, 192 W. Va. 286, 452 S.E.2d 377 (1994).
Applying these standards, we consider the merits of this disciplinary proceeding.
III.
DISCUSSION
As we noted above, the ODC and Mr. Curnutte have stipulated the facts of
his misconduct and that his conduct violated Rule 8.4(c). This Court has recognized that,
“where the parties enter into stipulations of fact, the facts so stipulated will be considered
to have been proven as if the party bearing the burden of proof has produced clear and
convincing evidence to prove the facts so stipulated.” Syl. pt. 4, in part, Matter of Starcher,
202 W. Va. 55, 501 S.E.2d 772 (1998). For this reason, we direct our analysis to the
appropriate sanctions to be imposed upon Mr. Curnutte.
Our consideration of the appropriate sanction is guided by our holding in
Syllabus point 4 of Office of Lawyer Disciplinary Counsel v. Jordan, 204 W. Va. 495, 513
S.E.2d 722 (1998):
Rule 3.16 of the West Virginia Rules of Lawyer
Disciplinary Procedure enumerates factors to be considered in
imposing sanctions and provides as follows: “In imposing a
sanction after a finding of lawyer misconduct, unless otherwise
provided in these rules, the Court [West Virginia Supreme
Court of Appeals] or Board [Lawyer Disciplinary Board] shall
consider the following factors: (1) whether the lawyer has
violated a duty owed to a client, to the public, to the legal
9
system, or to the profession; (2) whether the lawyer acted
intentionally, knowingly, or negligently; (3) the amount of the
actual or potential injury caused by the lawyer’s misconduct;
and (4) the existence of any aggravating or mitigating factors.”
Even though the parties have stipulated to the way Mr. Curnutte’s misconduct satisfies the
Jordan/Rule 3.16 factors, we nevertheless find it useful to examine each of these factors to
assess the proper sanction for his misconduct.
Meeting the first Jordan/Rule 3.16 factor, the parties stipulated that Mr.
Curnutte violated the duties he owed to his clients, to the public, and to the legal profession.
Mr. Curnutte violated this factor by failing to abide by the governing rules of the State Bar
that require disclosure of professional liability insurance coverage. Because the disclosure
was available to the public, he allowed for the possibility that this false information would
be provided to clients or potential clients. He also allowed his employee lawyer to
inaccurately believe she had the protection of professional liability insurance coverage
when she did not. As an officer of the court, Mr. Curnutte’s duties include maintaining the
integrity of the legal profession. His deceitful conduct fell short of this duty.
As to the second Jordan/Rule 3.16 factor, the parties stipulated that Mr.
Curnutte acted knowingly and negligently. Rule 1.0 of the Rules of Professional Conduct
states, in part, that “‘[k]nowingly’ . . . denotes actual knowledge of the fact in question.”
Similarly, “knowledge,” for the purposes of lawyer sanctions, has been defined as “the
‘conscious awareness of the nature or attendant circumstances of the conduct but without
10
the conscious objective or purpose to accomplish a particular result.’” Lawyer Disc. Bd. v.
Sayre, 242 W. Va. 246, 253-54, 834 S.E.2d 721, 728-29 (2019) (quoting Annotated ABA
Standards for Imposing Lawyer Sanctions, Definition (2015)). “‘Negligence’ is defined as
a state where a lawyer fails to be aware of a substantial risk of consequences or result, and
the failure amounts to a breach of the standard of care that a reasonable lawyer would
exercise.” Lawyer Disc. Bd. v. Hart, 241 W. Va. 69, 87-88, 818 S.E.2d 895, 913-14 (2018)
(citing Lawyers’ Manual on Professional Conduct, Model Standards for Imposing Lawyer
Sanctions, § 01:801 Definitions (Am. Bar Ass’n 2012)). We accept the stipulation that Mr.
Curnutte’s conduct was knowing and negligent.
The third Jordan/Rule 3.16 factor assesses the amount of actual or potential
injury caused by the misconduct. While there apparently was no actual harm to clients
insofar as no legal malpractice claims have been made for the period in which the existence
of insurance was misrepresented, Mr. Curnutte’s dishonesty created the potential for harm.
By misrepresenting the existence of insurance, he allowed for the possibility that his clients
or potential clients would believe he had such coverage. Additionally, he allowed his
lawyer employee to believe she had the protection of a professional liability policy when,
in fact, there was no such coverage. We find Mr. Curnutte’s dishonesty and noncompliance
with the administrative rules of the State Bar and the Rules of Professional Conduct are
clearly detrimental to his former attorney employee, the public, the legal system, and the
legal profession.
11
The final Jordan/Rule 3.16 factor requires an evaluation of aggravating and
mitigating factors. We first address the presence of aggravating factors. “Aggravating
factors in a lawyer disciplinary proceeding are any considerations or factors that may
justify an increase in the degree of discipline to be imposed.” Syl. pt. 4, Lawyer Disc. Bd.
v. Scott, 213 W. Va. 209, 579 S.E.2d 550 (2003). The parties stipulated the following
aggravating factors: (1) a dishonest or selfish motive; (2) a pattern of misconduct in that
the conduct involved multiple reporting years; and (3) substantial experience in the practice
of law. 6
Turning to mitigating factors, this Court has recognized that “[m]itigating
factors in a lawyer disciplinary proceeding are any considerations or factors that may
justify a reduction in the degree of discipline to be imposed.” Syl. pt. 2, id. However, we
have further clarified that
[m]itigating factors which may be considered in
determining the appropriate sanction to be imposed against a
lawyer for violating the Rules of Professional Conduct include:
(1) absence of a prior disciplinary record; (2) absence of a
dishonest or selfish motive; (3) personal or emotional
problems; (4) timely good faith effort to make restitution or to
rectify consequences of misconduct; (5) full and free
disclosure to disciplinary board or cooperative attitude toward
proceedings; (6) inexperience in the practice of law; (7)
character or reputation; (8) physical or mental disability or
impairment; (9) delay in disciplinary proceedings; (10) interim
rehabilitation; (11) imposition of other penalties or sanctions;
(12) remorse; and (13) remoteness of prior offenses.
6
As previously mentioned, Mr. Curnutte was admitted to the practice of law
in West Virginia on September 23, 1991.
12
Syl. pt. 3, id. The parties stipulated the following mitigating factors: (1) Mr. Curnutte does
not have a prior disciplinary record; 7 (2) he has provided full and free disclosure to the
HPS and has had a cooperative attitude toward this disciplinary proceeding; (3) he has
made a good faith effort to rectify the consequences of his conduct; and (4) he has
expressed remorse during this disciplinary proceeding.
Mr. Curnutte contends that additional mitigating factors were not considered
or even acknowledged by the HPS. 8 He points to evidence he presented through his
curriculum vitae and the testimony of Diane Young, Pro Bono Coordinator of West
Virginia Legal Aid, which includes the following: (1) he has contributed to the
development of the law as a member of the Governing Council of the West Virginia Law
Institute from 2003 to the present; (2) he has served as President of the West Virginia Law
Institute from 2008 to the present; (3) he has submitted numerous scholarly reports to aid
the West Virginia Legislature; (4) he has actively participated in the West Virginia State
Bar, most recently by serving as co-chair of the Family Law Mediation Subcommittee from
2018 to the present; (5) he has published several scholarly articles; (6) he has contributed
to the practice of law by teaching various Continuing Legal Education courses from 2000
7
Thirteen complaints, not including the instant matter, have been filed
against Mr. Curnutte since he was admitted to practice in 1991; however, none of those
thirteen resulted in any discipline being imposed.
8
In arguing against the sanctions recommended by the LDB, Mr. Curnutte
fails to suggest what he believes to be an appropriate sanction. Thus, he appears to contend
that no suspension is warranted.
13
to the present; (7) he has contributed to the future of the law by teaching various courses
at the West Virginia University College of Law continually from 2000 to the present; (8)
he has an exemplary record of providing pro bono public services to the citizens of West
Virginia; (9) he was awarded the Kaufman Award by the West Virginia State Bar in
recognition of the fact that he provided the most pro bono public services during the award
year; and (10) he has served as a member of the Pro Bono Committee of West Virginia
Legal Aid. As set out above, under Syllabus point 3 of Scott, 213 W. Va. 209, 579 S.E.2d
550, we recognize thirteen specific categories of mitigating circumstances. 9 All this
evidence fits into the same category, “(7) character or reputation.” Id. While we recognize
this evidence as demonstrating Mr. Curnutte’s general good reputation, we also find that,
given his association with law students through teaching at the West Virginia University
College of Law, as well as his activities with the State Bar and other lawyer associations
in West Virginia, it is important to emphasize the high ethical standards expected of the
lawyers practicing in this State. As we frequently have reaffirmed,
“‘“[i]n deciding on the appropriate disciplinary action
for ethical violations, this Court must consider not only what
steps would appropriately punish the respondent attorney, but
also whether the discipline imposed is adequate to serve as an
effective deterrent to other members of the Bar and at the same
time restore public confidence in the ethical standards of the
legal profession.” Syllabus Point 3, Committee on Legal Ethics
v. Walker, 178 W. Va. 150, 358 S.E.2d 234 (1987).’ Syllabus
9
In addition, Mr. Curnutte argues that he practices in a rural area of the State
that is under-served by lawyers and, as a result, a large group of people in that area would
suffer harm from the absence of his services. To the extent that this information does not
fit within any of the recognized mitigating factors set out in Syllabus point 3 of Lawyer
Disciplinary Board v. Scott, 213 W. Va. 209, 579 S.E.2d 550 (2003), we do not consider
it.
14
Point 5, Committee on Legal Ethics v. Roark, 181 W. Va. 260,
382 S.E.2d 313 (1989).” Syllabus Point 2, Committee on Legal
Ethics v. White, 189 W. Va. 135, 428 S.E.2d 556 (1993).
Syl. pt. 4, McCorkle, 192 W. Va. 286, 452 S.E.2d 377. Indeed, this Court has recognized
that
“[n]o single transgression reflects more negatively on the legal
profession than a lie.” [Astles’ Case, 594 A.2d 167, 170 (N.H.
1991)]. The honor of practicing law “does not come without
the concomitant responsibilities of truth, candor[,] and
honesty . . . . [I]t can be said that the presence of these virtues
in members of the bar comprises a large portion of the fulcrum
upon which the scales of justice rest.” Jones’ Case, 137 N.H.
351, 628 A.2d 254, 259 (1993) (quotation omitted). “Respect
for our profession is diminished with every deceitful act of a
lawyer.” Disciplinary Counsel v. Fowerbaugh, 74 Ohio St. 3d
187, 658 N.E.2d 237, 239 (1995).
Lawyer Disc. Bd. v. Munoz, 240 W. Va. 42, 51, 807 S.E.2d 290, 299 (2017). See also
Lawyer Disc. Bd. v. Losch, 219 W. Va. 316, 319, 633 S.E.2d 261, 264 (2006) (per curiam)
(observing that “‘[h]onesty is one of the cornerstones of the legal profession’” (quoting
Office of Lawyer Disc. Counsel v. Galford, 202 W. Va. 587, 590, 505 S.E.2d 650, 653
(1998) (per curiam)).
In Munoz, this Court imposed a ninety-day suspension with automatic
reinstatement, among other sanctions, due, in part, to Mr. Munoz’s deceit in lying to a
magistrate judge by insisting that he had not orally requested continuances in a DUI case, 10
making false statements about filing a timely motion to withdraw in another case, and
10
The DUI case before the magistrate judge was against Mr. Munoz himself.
15
making false statements during the disciplinary process. 11 The LDB directs this Court’s
attention to several cases involving dishonest conduct in which various sanctions were
imposed. See Lawyer Disc. Bd. v. Losch, 219 W. Va. 316, 633 S.E.2d 261 (imposing
reprimand, and other sanctions, for violation of Rules 8.4(c) and 8.4(d) by altering
document after it was signed by circuit court and causing it to be served on an individual); 12
Lawyer Disc. Bd. v. Ansell, 210 W. Va. 139, 556 S.E.2d 106 (2001) (per curiam)
(suspending lawyer for sixty days, along with other sanctions, for attempting to obtain
legitimately earned payment from the Public Defender’s Services for two court-appointed
criminal cases by altering a circuit court order from another court-appointed case); Office
of Disc. Counsel v. Galford, 202 W. Va. 587, 505 S.E.2d 650 (1998) (per curiam) (ordering
one-year suspension, and other sanctions, after lawyer forged a will following a testator’s
death to include an heir mistakenly omitted from original will lawyer prepared; lawyer also
was criminally prosecuted and entered a nolo contendere plea); Comm. on Legal Ethics v.
Taylor, 190 W. Va. 133, 437 S.E.2d 443 (1993) (per curiam) (adopting recommendation
of two consecutive six-month suspensions, with other sanctions, for practicing law as an
Assistant Public Defender while law license suspended for Mandatory Continuing Legal
Education deficiencies, and for writing a check on an account with knowledge that it lacked
sufficient funds and then failing to make restitution when the incident was brought to light).
11
Mr. Munoz was also charged with violations of the Rules of Professional
Conduct for his failures to communicate with clients and failures to expedite litigation.
12
Losch involved a single act. Unlike the instant case, there was no pattern
of misconduct.
16
Having fully considered the record in this matter, along with the parties’
arguments, the Jordan/Rule 3.16 factors, including aggravating and mitigating
circumstances, and other disciplinary cases involving instances of dishonesty, we conclude
that a ninety-day suspension with automatic reinstatement under RLDP 3.31, 13 along with
the other recommended sanctions modified to comport with automatic reinstatement,
provides an adequate sanction for Mr. Curnutte’s misconduct in this case.
13
According to RLDP 3.31,
[w]hen a lawyer has been suspended for a period of
three months or less, and all other requirements as to
restitution, conditions, or some other act shall be satisfied, the
lawyer’s reinstatement to the practice of law in this State shall
be automatic, unless otherwise provided in the order of
suspension, upon satisfaction of all membership requirements
of The West Virginia State Bar, including fees and mandatory
continuing legal education, unless otherwise provided in the
order of suspension. Failure to comply with all requirements
as to restitution, conditions, or some other act incident to the
suspension, shall constitute an aggravating factor in any
subsequent disciplinary proceeding. The lawyer shall provide
written documentation to the Office of Disciplinary Counsel
no later than fourteen days prior to the effective date of
reinstatement that all terms and conditions imposed by the
Supreme Court of Appeals have been satisfied. Thereafter, if
the Office of Disciplinary Counsel shall determine that all
terms and conditions of reinstatement have not been satisfied,
it shall inform the Supreme Court of Appeals prior to the
effective date of reinstatement in order that compliance with its
directives can be compelled.
17
IV.
CONCLUSION
Based upon the foregoing analysis, we find the sanctions set out below will
accomplish the goals of our lawyer disciplinary system by appropriately punishing Mr.
Curnutte’s misconduct, serving as a deterrent to other members of the Bar, and restoring
public confidence in the legal profession. See Syl. pt. 4, McCorkle, 192 W. Va. 286, 452
S.E.2d 377. Accordingly, we impose the following sanctions:
A. Mr. Curnutte’s law license is suspended for ninety days
with automatic reinstatement under RLDP 3.31;
B. Mr. Curnutte must complete an additional six hours of
Continuing Legal Education in ethics prior to his
automatic reinstatement;
C. Mr. Curnutte must comply with the mandates of RLDP
3.28, which sets out the duties of disbarred or suspended
lawyers;
D. Mr. Curnutte must reimburse the costs of these
proceedings pursuant to RLDP 3.15 prior to his automatic
reinstatement; and
E. Mr. Curnutte shall, prior to his automatic reinstatement,
fully and accurately disclose to the LDB what efforts, if
any, he has made to procure professional liability
insurance.
Law License Suspended and Other Sanctions Imposed.
18