This disciplinary proceeding originated in a "Statement of Charges" by the Lawyer Disciplinary Board ("LDB") against Scott A. Curnutte ("Mr. Curnutte") alleging infringement of West Virginia. the Code of Professional Conduct by providing false information about his professional liability insurance to the West Virginia State Bar ("State Bar"). For three financial years in a row, Mr Curnutte submitted his annual report on financial liability ("FRD"), which incorrectly stated that he was covered by a professional liability insurance policy, when in fact he had no such cover. He also lied about having such coverage for a lawyer he hired, which caused the lawyer to similarly provide false information to the state attorney.
In The Bar's Disciplinary Board v Scott A. Curnutte, No. 19- 0636, Supreme Court of Appeals of West Virginia (October 16, 2020) The Supreme Court heard the West Virginia Rules of Advocacy. shall be taken into account in the imposition of sanctions and provides the following:
'In imposing a sanction following the finding of an incorrect lawyer, unless otherwise stated in these rules, the court [West Virginia Supreme Court of Appeals] or the board [Lawyer Disciplinary Board] shall take into account the following factors: (1) whether the lawyer has violated an obligation to a client, to the public, to the legal system or to the profession; (2) whether the attorney acted intentionally, knowingly or negligently; (3) the amount of the actual or potential damage caused by the lawyer's conduct; and (4) the presence of aggravating or mitigating factors. ”
Mr. Curnutte is a lawyer practicing in Elkins, West Virginia. By law, every active attorney must disclose to the West Virginia State Bar on September 1 of each year:
- if the attorney is engaged in private law practice,
- if engaged, if the attorney is currently covered by professional liability insurance with limits of no less than $ 100,000 per claim and $ 300,000 insurance aggregate covering generally insurable acts, errors and omissions that occur in law practice, in addition to an extended reporting permit.
- if the lawyer is so committed and not covered by professional liability insurance in the above-mentioned minimum amount, regardless of whether the lawyer has another form of adequate financial responsibility, which means that funds, amounting to at least $ 100,000, are available to satisfy the lawyer liability …
- if there is any unsatisfactory final judgment following an appeal by either the lawyer, or any company or professional company in which the lawyer has practiced, for acts, errors or omissions, including, but not limited to, dishonesty, fraud or intentional misconduct, which arises due to the performance of legal services by the lawyer.
For three consecutive tax years, Curnutte certified to the Prime Minister that he and his law firm, Curnutte Law, were insured under a professional liability policy issued by ALPS. Contrary to what he revealed, his ALPS policy had expired in March 2014. He submitted the form incorrectly certifying that the policy was still in force. Mr Curnutte provided a fictitious insurance number and submitted the form incorrectly certifying that he had professional indemnity insurance.
The parties provided that Mr Curnutte infringed the obligations he owed to his clients, to the public and to the legal profession. Since the disclosure was available to the public, he allowed the possibility that this false information would be given to customers or potential customers. He also allowed his employee's lawyer to mistakenly believe that she was covered by professional liability insurance when she did not. As a court clerk, Mr. Curnutt's duties include maintaining the legal profession. His fraudulent conduct escaped this duty.
Although there was clearly no actual damage to customers in so far as no legal claims were made during the period in which the existence of the insurance was incorrectly made, Mr Curnutte's dishonesty created the potential for damage. By misrepresenting the existence of insurance, he allowed the possibility that his customers or potential customers would think he had such coverage. The Supreme Court found that Curnutte's dishonesty clearly harmed his former legal profession, the public, the judiciary and the legal profession.
The parties prescribed the following aggravating factors:
- a dishonest or selfish motive;  a misconduct in that the behavior involved several reporting years; and
- extensive experience in law.
M mitigating factors may be considered in determining the appropriate sanction. The parties prescribed the following mitigating factors:
- Mr. Curnutte has no previous discipline register;
- he has provided complete and free information and has had a cooperative approach to this disciplinary procedure;
- he has made a good faith effort to correct the consequences of his conduct; and
- he has expressed remorse during this disciplinary procedure.
The Supreme Court noted that "no single offense reflects more negatively on the legal profession than a lie." The honor of practicing law requires truth, sincerity, and honesty.
In view of mitigating factors and ignoring the serious dishonesty, the Supreme Court concluded that a ninety-day suspension with automatic reintroduction, together with the other recommended sanctions modified to comply with automatic reintroduction, provides an adequate sanction for Mr Curnutt's conduct in this case. . Mr. Curnutte's license was revoked for ninety days with automatic reinstatement during; Mr Curnutte must complete another six hours of continuing ethics legal education before being automatically reinstated; Mr Curnutte must follow the mandate in the rules of professional conduct, which set out the duties of expelled or temporary lawyers; Mr Curnutte must reimburse the costs of this procedure before his automatic reinstatement; and Mr Curnutte shall, before his automatic reinstatement, fully and correctly disclose to LDB what efforts, if any, he has made in obtaining professional indemnity insurance. the circumstances in light of his obvious, unfairness, lie to the prime minister about the existence of malpractice insurance required by state law. In this way, he harmed an employed lawyer who he inadvertently lied to the state and the public who relied on the existence of malpractice. Because the lies he told were negatively reflected in the law's practice, he should have been banned or at least suspended for two or more years and demanded insurance, not just tell of his efforts. His remorse is commendable, but one can only wonder if the remorse was about being caught rather than lying.
© 2020 – Barry Zalma
Barry Zalma, Esq., CFE, now limits his practice to service as an insurance consultant specializing in insurance coverage, insurance claims handling, infidelity and insurance fraud almost equally for insurers and policyholders. He also acts as an arbitrator or mediator for insurance-related disputes. He practiced law in California for more than 44 years as an insurance coverage and claims lawyer and more than 52 years in the insurance industry. He is available at http://www.zalma.com and firstname.lastname@example.org.
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