West Virginia, like many other states, requires a lawyer to disclose whether or not he has legal malpractice insurance. This disclosure is important because insurance is usually the only way for a lawyer to defend or pay a negligence claim. The case Lawyer Disciplinary Board v. Curnutte, No. 19-0636 discusses this issue in some detail and affirms a recommendation for a three-month suspension.
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.
Comment: Please get malpractice insurance. Failing to get it can really cause an injured party to lose their recovery. Claiming that you have it when you don’t will result in discipline.
Ed Clinton, Jr.
Legal Ethics Lawyer 