The opinion
[Until this opinion appears in the Ohio Official Reports advance sheets, it may be cited as
Disciplinary Counsel v. Valenti, Slip Opinion No. 2021-Ohio-1373.]
NOTICE
This slip opinion is subject to formal revision before it is published in an
advance sheet of the Ohio Official Reports. Readers are requested to
promptly notify the Reporter of Decisions, Supreme Court of Ohio, 65
South Front Street, Columbus, Ohio 43215, of any typographical or other
formal errors in the opinion, in order that corrections may be made before
the opinion is published.
SLIP OPINION NO. 2021-OHIO-1373
DISCIPLINARY COUNSEL v. VALENTI.
[Until this opinion appears in the Ohio Official Reports advance sheets, it
may be cited as Disciplinary Counsel v. Valenti, Slip Opinion No.
2021-Ohio-1373.]
Attorneys—Misconduct—Violations of the Rules of Professional Conduct,
including failing to provide competent representation to clients, failing to
act with reasonable diligence in representing clients, and engaging in
conduct prejudicial to the administration of justice—Six-month suspension
stayed on conditions.
(No. 2020-1519—Submitted January 27, 2021—Decided April 21, 2021.)
ON CERTIFIED REPORT by the Board of Professional Conduct of the Supreme
Court, No. 2020-010.
_______________________
Per Curiam.
{¶ 1} Respondent, Kimberly Anne Valenti, of Hudson, Ohio, Attorney
Registration No. 0074624, was admitted to the practice of law in Ohio in 2002.
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{¶ 2} In February 2020, relator, disciplinary counsel, charged Valenti with
failing to competently and diligently represent clients in three matters in which she
had been appointed to serve as counsel. Although the parties entered into factual
stipulations, Valenti denied that her conduct violated the professional-conduct
rules, and the matter proceeded to a hearing before a three-member panel of the
Board of Professional Conduct. The board issued a report finding that Valenti
engaged in the charged misconduct and recommending that we impose a
conditionally stayed six-month suspension. Neither party has objected to the
board’s report and recommendation.
{¶ 3} Based on our review of the record, we adopt the board’s findings of
misconduct and recommended sanction, with one modification to the sanction.
Misconduct
The Doak matter
{¶ 4} In April 2018, the Portage County Court of Common Pleas appointed
Valenti to serve as appellate counsel for Richard B. Doak, who had been sentenced
to life in prison without the possibility of parole. Doak’s appellate brief was
originally due in August 2018, but Valenti sought and received three extensions of
time. She nonetheless failed to file the brief by the October 22, 2018 deadline. On
December 4, 2018, the Eleventh District Court of Appeals sua sponte ordered
Valenti to file the brief within 14 days or show cause as to why the appeal should
not be dismissed for failure to prosecute. Valenti filed the brief on December 19,
2018. She did not file a reply to the state’s merit brief.
{¶ 5} On May 15, 2019, Valenti appeared for oral argument and informed
the appellate panel that the parties intended to waive oral argument and stand on
their briefs. One of the judges, however, expressed serious concerns about
Valenti’s brief. He stated that the citations and abbreviations made no sense and
that the brief was “52 pages of the most difficult reading I’ve ever probably done
in 12 years.” The judge noted that considering the seriousness of Doak’s sentence,
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the arguments should have been set forth in a coherent manner with citations to
authority for each assignment of error. After hearing this feedback, Valenti
requested a continuance. The court gave her two weeks to file a reply brief so that
she could clarify her arguments. The court also rescheduled oral argument.
{¶ 6} Valenti thereafter sought and obtained an extension of time until June
3, 2019, to file the reply brief. But she failed to submit the brief by the deadline,
and the court of appeals sua sponte removed her as Doak’s counsel. In its entry,
the court noted that Valenti’s merit brief was “inadequate, incoherent and
unintelligible” and that she was unprepared for oral argument. The court appointed
new appellate counsel for Doak and granted the attorney additional time to file a
new brief on Doak’s behalf.
{¶ 7} At her disciplinary hearing, Valenti acknowledged that her appellate
brief included confusing abbreviations, incomplete sentences, improper citations to
constitutional provisions, a confusing statement of facts, and unclear legal
arguments. According to Valenti, she had inadvertently filed a draft of her brief
and failed to save the final version—a fact that she did not realize until after oral
argument. She also testified that although she had intended to meet the June 3,
2019 deadline for the reply brief, her USB flash drive “broke off” and the court
removed her from the case before she could file the brief.
The Evans matter
{¶ 8} In February 2019, the Portage County Court of Common Pleas
appointed Valenti to serve as appellate counsel for Dwight D. Evans. Valenti,
however, failed to file a timely notice of appeal. Instead, almost a month after the
initial due date, Valenti filed a motion for a delayed appeal. In late June 2019, the
Eleventh District granted the motion, noting in its entry that Evans “should not be
penalized for counsel’s error in filing an untimely appeal.” But in the same entry,
the court of appeals sua sponte removed Valenti as Evans’s appellate counsel and
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appointed him a new attorney. Two of the judges hearing Evans’s case had also
served on the panel in Doak’s appeal.
The Ellison matter
{¶ 9} In October 2018, the Summit County Court of Common Pleas,
Domestic Relations Division, appointed Valenti to represent Pearlena Ellison in a
contempt proceeding regarding child-support obligations. The court scheduled a
hearing for June 4, 2019. Around that same time, relator was investigating an
unrelated grievance against Valenti, who agreed to reschedule a deposition with
relator for June 4—the same day as Ellison’s hearing. Valenti failed to appear for
Ellison’s hearing and failed to notify Ellison or the court that she had a conflict in
her schedule. The court appointed a new attorney for Ellison and rescheduled the
hearing in the contempt proceeding.
Rule violations
{¶ 10} The board found that Valenti violated Prof.Cond.R. 1.1, 1.3, and
8.4(d).
{¶ 11} Prof.Cond.R. 1.1 requires a lawyer to provide competent
representation to a client. “Competent representation requires the legal knowledge,
skill, thoroughness, and preparation reasonably necessary for the representation.”
Id. “To maintain the requisite knowledge and skill, a lawyer should keep abreast
of changes in the law and its practice, including the benefits and risks associated
with relevant technology.” Id. at Comment 8. The board concluded that Valenti
was not “sufficiently technologically competent” in the Doak matter. The board
further concluded that her late filings in the Doak and Evans matters, her scheduling
of a deposition on the date of Ellison’s hearing, and her failure to inform Ellison or
the court of her scheduling conflict did not “reflect [the] thoroughness and
preparation reasonably necessary for competent representation.”
{¶ 12} Prof.Cond.R. 1.3 requires a lawyer to “act with reasonable diligence
and promptness in representing a client.” The board found that by failing to comply
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with the deadlines imposed by the Ohio Rules of Appellate Procedure and by failing
to appear for a scheduled hearing, Valenti did not act with reasonable diligence and
promptness while representing Doak, Evans, and Ellison.
{¶ 13} Prof.Cond.R. 8.4(d) prohibits a lawyer from “engag[ing] in conduct
that is prejudicial to the administration of justice.” The board found that by failing
to file a final version of her brief in Doak’s appeal, failing to file a timely notice of
appeal in Evans’s case, and failing to appear at Ellison’s hearing, Valenti’s conduct
was prejudicial to the administration of justice.
{¶ 14} We agree with the board’s findings of misconduct.
Sanction
{¶ 15} When imposing sanctions for attorney misconduct, we consider all
relevant factors, including the ethical duties that the lawyer violated, the
aggravating and mitigating factors listed in Gov.Bar R. V(13), and the sanctions
imposed in similar cases.
{¶ 16} The board found two aggravating factors: Valenti engaged in a
pattern of misconduct and committed multiple offenses. See Gov.Bar R.
V(13)(B)(3) and (4). In mitigation, the board found that Valenti has a clean
disciplinary record, she lacked a dishonest or selfish motive, she had a cooperative
attitude toward the board proceedings, she submitted evidence of good character
and reputation, and other penalties have been imposed for her misconduct—
namely, she was removed as counsel in the three matters. See Gov.Bar R.
V(13)(C)(1), (2), (4), (5), and (6).
{¶ 17} The board recommends that we suspend Valenti for six months, with
the suspension stayed on conditions, including a requirement that she complete six
hours of continuing legal education in law-office management with a focus on
calendar management and law-office technology. To support its recommended
sanction, the board cited several cases in which we imposed conditionally stayed
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six-month suspensions on attorneys who had engaged in misconduct similar to
Valenti’s.
{¶ 18} For example, in Disciplinary Counsel v. Schnittke, 152 Ohio St.3d
152, 2017-Ohio-9206, 93 N.E.3d 974, an attorney failed to file briefs in three
criminal cases in which he had been appointed to serve as appellate counsel and
failed to reasonably communicate with two of those clients. Aggravating factors
included a pattern of misconduct, multiple offenses, and harm to vulnerable clients.
Mitigating factors included the absence of prior discipline, a lack of a dishonest or
selfish motive, full and free disclosure to the board and a cooperative attitude
toward the disciplinary proceedings, good character and reputation, and
acknowledgement of wrongdoing. We concluded that a conditionally stayed six-
month suspension was the appropriate sanction for that misconduct.
{¶ 19} In Columbus Bar Assn. v. LaFayette, 152 Ohio St.3d 147, 2017-
Ohio-9205, 93 N.E.3d 970, the attorney’s misconduct included failure to
competently and diligently represent a client in an immigration matter and failure
to competently represent a client in a bankruptcy case. As an aggravating factor,
the attorney had engaged in multiple offenses. In mitigation, he had no prior
discipline, lacked a dishonest or selfish motive, had a cooperative attitude toward
the disciplinary proceedings, and submitted positive character evidence. We
concluded that a conditionally stayed six-month suspension was consistent with our
precedent.
{¶ 20} Considering Valenti’s misconduct, the relevant mitigating and
aggravating factors, and the sanctions imposed for comparable misconduct, we
agree that a six-month suspension, stayed in its entirety on the conditions
recommended by the board, is appropriate. But given the problems identified in
this case and that court-appointed work is a significant portion of Valenti’s practice,
we also require her to complete six hours of continuing legal education in criminal
appellate law prior to accepting any new appointments in appellate cases.
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January Term, 2021
Conclusion
{¶ 21} Kimberly Anne Valenti is hereby suspended from the practice of law
in Ohio for six months, with the entire suspension stayed on the conditions that she
(1) as part of her continuing-legal-education requirements under Gov.Bar R. X,
complete six hours of continuing legal education in law-office management,
including calendar-management and law-office-technology training, within 90 days
of our disciplinary order and six hours of continuing legal education in criminal
appellate law prior to accepting any new court appointments in appellate matters
and (2) refrain from any further misconduct. If Valenti fails to comply with either
condition of the stay, the stay will be lifted and she will serve the entire six-month
suspension. Costs are taxed to Valenti.
Judgment accordingly.
O’CONNOR, C.J., and KENNEDY, FISCHER, DEWINE, DONNELLY, STEWART,
and BRUNNER, JJ.
__________________
Joseph M. Caligiuri, Disciplinary Counsel, Donald M. Scheetz, Chief
Assistant Disciplinary Counsel, and Adam P. Bessler, Assistant Disciplinary
Counsel, for relator.
Jeffrey N. James, for respondent.
_________________
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