Clarifying the Burden of Proof and Limits on Disciplinary Sanctions for Litigation Delays

Introduction

In the disciplinary matter Lawyer Disciplinary Board v. Scott A. Curnutte, No. 23-746 (W. Va. June 6, 2025), Chief Justice Wooton, concurring in part and dissenting in part, addresses critical issues about the scope of disciplinary authority, the proper application of the clear and convincing evidence standard, and the limits on using trial-court procedural delays as a basis for lawyer discipline. The respondent, attorney Scott A. Curnutte, faced charges under multiple provisions of the West Virginia Rules of Professional Conduct arising from four separate matters (McFarlan, Lambert, Kramer, and an unnamed fourth case). While he admitted violations of Rule 8.1(b) (failure to respond to disciplinary inquiries) and failed communication under Rule 1.4(a)(3) & (4), the majority also found violations of Rules 1.3, 3.2, 3.4(c), and 8.4(a). Chief Justice Wooton agrees on some points but dissents from the majority’s willingness to discipline for legitimate delays and its extensive credibility findings.

Summary of the Judgment

The majority held that Mr. Curnutte violated:
- Rule 8.1(b): Repeatedly ignored Lawyer Disciplinary Board requests.
- Rule 1.4(a)(3) & (4): Failed to keep client Terry McFarlan informed.
- Rule 1.3: Failure to act with diligence and promptness (McFarlan matter).
- Rule 3.2: Failure to expedite litigation (McFarlan and Lambert matters).
- Rule 3.4(c): Knowing disobedience of tribunal rules (Kramer matter).
- Rule 8.4(a): Conduct prejudicial to the administration of justice (Kramer).
As sanction, the Court imposed a six-month suspension of Mr. Curnutte’s license.
Chief Justice Wooton concurs that admonishment is insufficient but dissents on:
- The findings of violation for Rules 1.3, 3.2, 3.4(c), and 8.4(a) in McFarlan, Lambert, and Kramer.
- The severity of a six-month suspension, proposing instead:
  - A three-month suspension.
  - Six additional CLE hours in ethics and office management.
  - Retention of an office-procedure consultant.

Analysis

Precedents Cited

State v. Guthrie, 194 W. Va. 657, 461 S.E.2d 163 (1995): On appeal, a court will not weigh evidence or determine credibility.
In re D.S., __ W. Va. __, 914 S.E.2d 701 (2025): Reaffirming that appellate courts defer credibility assessments to the factfinder.
Rule 3.7, Rules of Lawyer Disciplinary Procedure: Requires “clear and convincing evidence” to support discipline.

Legal Reasoning

Chief Justice Wooton’s dissent rests on two intertwined legal principles:

Burden of Proof—Clear and Convincing Evidence:
- Disciplinary findings must be supported by clear and convincing evidence, a standard higher than preponderance of evidence but lower than beyond a reasonable doubt.
- The Board failed to meet this standard for Rules 1.3, 3.2, 3.4(c), and 8.4(a) because the delays in McFarlan, Lambert, and Kramer arose from neutral or opposing-party conduct, not willful lawyer neglect.
Limits on Credibility Determinations:
- Appellate courts lack factfinding authority and should not re-evaluate witness credibility (see Guthrie; In re D.S.).
- The majority improperly discounted Mr. Curnutte’s explanations about uncontrollable delays—an action that usurps the role of the hearing panel or circuit court.

Case‐by‐Case Breakdown

McFarlan Matter

Delay due to multiple rejected deed drafts—rejections by the county assessor and opposing counsel.
No evidence of intentional neglect; client frustration stemmed chiefly from poor communication (Rule 1.4 violations admitted).
Dissent: Absent willful delay, Rule 1.3 violation unsupported.

Lambert Matter

Delay caused by:
- County Commission inaction.
- Circuit court continuances.
- Defendant’s refusal to pay and subsequent counsel “going radio silent.”
Dissent: No evidence that Mr. Curnutte caused or could have overcome these obstacles.

Kramer Matter

Alleged failure to draft a mediation agreement within five days (Rule 3.4(c) and 8.4(a)).
Mr. Curnutte testified that one party reneged during the five-day window—no documentary proof of exact timing.
Dissent: Lack of willfulness or intransigence; procedural tools already exist for trial judges to sanction non-compliance.

Impact

The concurrence/dissent by Chief Justice Wooton establishes key guiding principles for future lawyer‐disciplinary matters in West Virginia:

Neutral or opponent‐caused delays in litigation should not alone trigger professional discipline.
Appellate courts must respect the factfinder’s role in assessing witness credibility.
Disciplinary sanctions should be tailored to the proven misconduct and the lawyer’s overall circumstances, balancing deterrence with fairness.
Enhanced CLE and procedural consulting can be constructive alternatives to lengthy suspensions when misconduct is limited.

Complex Concepts Simplified

Clear and Convincing Evidence: A level of proof requiring that the truth of the allegations is highly probable—stronger than “more likely than not,” but less than “beyond a reasonable doubt.”
Credibility Determination: An assessment of a witness’s truthfulness. Under West Virginia law, credibility is for the hearing panel or trial court, not the appellate bench.
Rule 3.4(c) (Knowing Disobedience of Tribunal Rules): Prohibits a lawyer from willfully violating court orders or procedural rules. Simple missed deadlines unaccompanied by willful disobedience typically do not suffice.

Conclusion

Chief Justice Wooton’s partial concurrence and dissent in Lawyer Disciplinary Board v. Scott A. Curnutte clarifies that, in West Virginia:

Disciplinary charges must be supported by clear and convincing evidence of intentional or grossly negligent violation.
Appellate courts must defer credibility assessments to the original factfinder.
Legitimate delays arising from neutral factors or opposing‐party conduct do not establish professional misconduct.
Proportionate sanctions—including shorter suspensions, targeted CLE, and procedural audits—can address lapses in communication and responsiveness without unduly penalizing attorneys for circumstances beyond their control.

This opinion thus sets a meaningful precedent, striking a balance between the imperative to uphold professional standards and the need to avoid overreach in disciplining lawyers for delays they did not create.