S054609 State v. Fults

SUPREME COURT CASES

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State: Oregon

Docket No: none

Case Date: 12/13/2007

FILED: December 13, 2007

IN THE SUPREME COURT OF THE STATE OF OREGON

STATE OF OREGON,

Petitioner on Review,

DAVID LESTER FULTS,

Respondent on Review.

(CC 04CR1586, 04CR1689; CA A127874 (Control),
A127875; SC S054609)

En Banc

On review from the Court of Appeals.*

Argued and submitted September 10, 2007.

Robert M. Atkinson, Assistant Attorney General, Salem, argued the cause for petitioner on review.

Ernest G. Lannet, Deputy Public Defender, Salem, argued the cause and filed the brief for respondent on review. With him on the brief was Peter Gartlan, Chief Defender, Office of Public Defense Services.

GILLETTE, J.

The decision of the Court of Appeals is reversed. The case is remanded to the Court of Appeals for further proceedings.

*Appeal from Coos County Circuit Court, Richard L. Barron, Judge. 210 Or App 150, 149 P3d 1248 (2006).

GILLETTE, J.

In this criminal case, the state seeks review of a decision of the Court of Appeals that vacated a sentence and remanded the case for resentencing. The state contends that the claim of error that prompted the Court of Appeals decision was unpreserved and that the Court of Appeals' determination to consider that claim of error in any event under the doctrine of "plain error" was flawed. For the reasons that follow, we remand the case to the Court of Appeals for further consideration.

The Court of Appeals summarized the relevant facts in its brief opinion as follows:

"In Case Number [04CR1586], defendant was convicted of manufacture of a controlled substance (MCS), reckless driving, and driving under the influence of intoxicants. In Case Number [04CR1689], defendant was convicted of felon in possession of a firearm and criminal trespass with a firearm. On the MCS conviction, the trial court imposed a 36-month term of supervised probation. The trial court determined that defendant's grid block classification on the MCS conviction was 4-F. Although the presumptive sentence for that classification is 24 months' supervision, the trial court imposed a 36-month term * * * and defendant indicated that he had no objection to the sentence[.]"

State v. Fults, 210 Or App 150, 152, 149 P3d 1248 (2006).

In fact, defendant's response to the trial judge's sentence was even more supportive of the judge's action than the foregoing summary reflects. As the following part of the transcript shows, the trial court imposed the 36-month period of probation on defendant's MCS conviction in order to match the guidelines sentence that would apply to one of defendant's other convictions, and defendant's lawyer affirmatively endorsed that choice:

"[THE COURT]: On 04CR1586, it will be the judgment of the Court that you be sentenced to probation for a period of 24 -- it ended up 36 months, because I believe Felon in Possession is a 6, which is three years probation -- 36 months probation. So * * * I'm going to make [the period of probation] the same for all of them * * *.

"[DEFENDANT'S COUNSEL]: We have no objection to that, whatsoever."

(Emphasis added.)

There is still more to the story. Defendant had a criminal record sufficient to make an extensive jail sentence a real possibility. At sentencing, in addition to the exchange already described, defendant's counsel urged the court to impose as little jail time as possible, in order to permit defendant to begin pursuing vocational rehabilitation. The trial judge, in announcing defendant's sentence, observed:

"[Y]ou have a lot of prior convictions. So, actually, I could have imposed a lot more jail time, and maybe even should have. But I'm not too sure that's going to get your attention any more than the 70 days I've imposed." (1)

The foregoing notwithstanding, defendant subsequently appealed, arguing that the trial court erred in sentencing him to a term of probation on his MCS conviction that exceeded the presumptive sentence set out in the sentencing guidelines for that offense (24 months of probation) (2) without finding, on the record, "substantial and compelling reasons to impose a departure," as required by OAR 213-008-0001. (3) Defendant acknowledged that the claimed error was unpreserved, but he invited the Court of Appeals to review it as an "error of law apparent on the face of the record." See ORAP 5.45(1) (describing appellate court authority to consider errors of that kind).

The Court of Appeals accepted defendant's invitation. First, it concluded that the error about which defendant complained qualified as "plain error" -- viz., an indisputable error of law apparent on the face of the record. Fults, 210 Or App at 153. Next, it rejected the state's contention that defendant had invited or waived the error. Id. at 153-54. Finally, the Court of Appeals concluded that, because "[t]he state has no valid interest in requiring defendant to serve an unlawful sentence," it was appropriate for it to exercise its discretion to address the error by vacating it and remanding the case for resentencing. Id. at 154.

The state now seeks review of that decision, arguing that defendant's express acceptance of the sentence precluded review, that the error was not one "apparent on the face of the record," and that the Court of Appeals' reason for exercising its discretion to consider the unpreserved error was an inappropriate one. Respecting those three arguments, the state urges this court to start with its last objection (that the Court of Appeals improperly exercised its discretion to address an unpreserved but "plain" error). We agree to do so here, because we believe that that decision by the Court of Appeals indicates that that court may misapprehend its role in cases in which it is asked to exercise its discretion under ORAP 5.45(1) to consider unpreserved error.

In its opinion, the Court of Appeals acknowledged that defendant had not preserved any objection to the allegedly illegal probation period imposed with respect to his MCS conviction. Fults, 210 Or App at 152. The court then stated that, nonetheless,

"This court may, in its discretion, consider an unpreserved claim of error when the asserted error is, on the face of the record, 'obvious' and 'not reasonably in dispute.' Ailes v. Portland Meadows, Inc., 312 Or 376, 381, 823 P2d 956 (1991)."

Fults, 210 Or App at 153. And, having so noted, the Court of Appeals then proceeded to consider defendant's assignment of error.

The balance of the Court of Appeals opinion consisted almost entirely of its analysis and rejection of the state's contention that defendant either had "waived" or "invited" the alleged error. As noted, the court ruled against the state as to both arguments. Id. at 153-54. The court then made two statements that justify our attention.

In the first of those statements, the court observed, in the context of discussing whether defendant had invited the asserted error, that "there [is no] indication that defendant's failure to object [to the impermissible 36-month probation term] constituted a strategic choice for which defendant now seeks to shift the blame." Id. at 154. Although we do not question the court's conclusion that defendant did not engage in conduct that constitutes invited error, we do think the record permits the conclusion that defendant's failure to object was a conscious choice: This defendant desired a sentence that would lead to his release on probation as soon as possible. The trial judge, although restive, was willing to give him that. Moreover, the court had already decided to impose an indisputably permissible 36-month probation term for one of defendant's other offenses. Under those circumstances, defense counsel easily could have feared that a technical objection to the extra 12 months of probation on the MCS conviction would "break the deal," and that the best tactic for his client was to remain silent. In other words, the Court of Appeals' statement to the contrary notwithstanding, there is a significant possibility that defendant's failure to object was in fact a strategic choice. See State v. Gornick, 340 Or 160, 169-70, 130 P3d 780 (2006) (discussing similar issue).

We think, however, that a Gornick-style inquiry into whether the fact that defendant may have had a strategic reason not to object means that there was no error at all would be less helpful in this case than simply proceeding directly to a review of the Court of Appeals' determination to consider what it believed to have been a "plain" trial court error. We elect, therefore, to assume, for purposes of this case, that the trial court committed plain error, and turn to a review of the Court of Appeals' decision to consider the alleged error. (4) And, in that review, we shall explain why the Court of Appeals should take into consideration any strategic purpose that defendant may have had in not objecting to the trial court's course of action.

The second statement by the Court of Appeals that concerns us speaks directly to that court's explanation of its choice to exercise its discretion to consider defendant's assignment of error. The court stated:

"Having concluded that the court plainly erred in imposing the sentence and that defendant neither waived nor invited that error, there remains only the question whether it is appropriate for us to exercise our discretion to address the error. See Ailes, 312 Or at 382. We conclude that it is appropriate. The state has no valid interest in requiring defendant to serve an unlawful sentence. See State v. Ramirez, 205 Or App 113, 125, 133 P3d 343, adh'd to on recons, 207 Or App 1, 139 P3d 981 (2006)."

Fults, 210 Or App at 154 (emphasis added).

We draw from the emphasized passage of that statement the conclusion that the Court of Appeals' determination to exercise its discretion respecting defendant's unpreserved claim of error turned solely on its view that the state had "no valid interest" in requiring defendant to serve an illegal sentence. As we shall explain, there is a fundamental problem with that statement.

The jurisprudential practice of considering unpreserved error, as we have noted, is memorialized in ORAP 5.45(1), which provides, in part:

"No matter claimed as error will be considered on appeal unless the claimed error was preserved in the lower court and is assigned as error in the opening brief in accordance with this rule, provided that the appellate court may consider an error of law apparent on the face of the record."

(Emphasis added.) This court has spelled out in the past precisely what it expects, and what it will look to, respecting an appellate court's choice to exercise its discretionary authority under ORAP 5.45(1):

"Even if [a party's unpreserved] error meets th[e] test [that it be one of law, not reasonably in dispute, and apparent on the face of the record], * * * the appellate court must exercise its discretion to consider or not to consider the error, and if the court chooses to consider the error, the court must articulate its reasons for doing so. * * * This is not a requirement of mere form. A court's decision to recognize unpreserved or unraised error in this manner should be made with utmost caution. Such an action is contrary to the strong policies requiring preservation and raising of error. It also undercuts the established manner in which an appellate court ordinarily considers an issue, i.e., through competing arguments of adversary parties with an opportunity to submit both written and oral arguments to the court. Moreover, by expressly following the prescribed method of recognizing unpreserved and unraised error, much greater efficiency in the review process between appellate courts is facilitated by giving this court the benefit of the recognizing court's reasoning.6

"[W]e conclude that when a claim of error appropriately is identified as an error of law apparent on the face of the record and the Court of Appeals expressly exercises its discretion to recognize that error, this court normally will not second-guess that exercise of discretion. However, a decision that considers a claim of error without an express conclusion that the error is one of law apparent on the face of the record, and without an express statement of the basis for the discretionary consideration of the claim of error, is itself erroneous.

"6 In future applications of this rule, in deciding whether to exercise its discretion to consider an error of law apparent on the face of the record, among the factors that a court may consider are: the competing interests of the parties; the nature of the case; the gravity of the error; the ends of justice in the particular case; how the error came to the court's attention; and whether the policies behind the general rule requiring preservation of error have been served in the case in another way, i.e., whether the trial court was, in some manner, presented with both sides of the issue and given an opportunity to correct any error. * * * Those factors do not comprise a necessary or complete checklist; they merely are some of the permissible considerations."

Ailes, 312 Or at 382 (emphasis in original; citations omitted). We agree with and adhere to that statement.

Applying that standard from Ailes, the flaw in the Court of Appeals' decision to exercise its discretion in this case, at least on the basis thus far offered, becomes clear. Although we may accept in the abstract the court's statement that, "[t]he state has no valid interest in requiring defendant to serve an unlawful sentence," other factors also must be considered and may outweigh that one. Among the factors that may apply in this case are: (1) defendant's apparent encouragement of the judge's choice; (2) the role of the concurrent, permissible 36-month probationary sentence; (3) the possibility that defendant made a strategic choice not to object to the sentence; and (4) the interest of the judicial system in avoiding unnecessary repetitive sentencing proceedings, as well as its interest in requiring preservation of error. (5) Finally, respecting the "no valid interest" statement itself, we believe that it is sufficient to remind the Court of Appeals that (1) the statement is a truism, which, if it were dispositive, would require consideration of and reversal based on any sentencing error, even those that have no readily identifiable significance, and (2) sentences in criminal cases, such as those imposed to run concurrently with sentences that the prisoner already is (or will be) serving, often have no real, practical effect on the prisoner. In such cases, among others, an appellate court's "no valid interest" statement contributes little or nothing to its analysis under ORAP 5.45(1) whether to exercise its discretion to consider "an error of law apparent on the face of the record." This is one of those cases.

For the reasons expressed, we think that, even assuming -- as we do -- the existence of a "plain error," the Court of Appeals' decision to consider defendant's unpreserved claim of error under ORAP 5.45(1), based on the single rationale that it expressed, was an abuse of discretion. That is not to say, however, that the court could not, after weighing all the relevant factors, justify its choice in some different way. Thus, the appropriate disposition of this case is to reverse the decision of the Court of Appeals and to remand the case to that court for further proceedings. See Ailes, 312 Or at 384 (making similar disposition). On remand, the court may explore those possibilities, if it so desires.

The decision of the Court of Appeals is reversed. The case is remanded to the Court of Appeals for further proceedings.

1. In addition to probation, defendant was required to serve a total of 70 days in jail as punishment for his various offenses.

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2. The lawyer representing defendant on appeal is not the one who represented him at trial. Of course, appellate counsel had every right to raise the issue that we here address.

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3. OAR 213-008-0001 provides: "Except as provided in OAR 213-005-0006, the sentencing judge shall impose the presumptive sentence provided by the guidelines unless the judge finds substantial and compelling reasons to impose a departure. If the sentencing judge departs from the presumptive sentence, the judge shall state on the record at the time of sentencing the substantial and compelling reasons for the departure."

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4. See State v. Ramirez, ___ Or ___, ___ P3d ___ (decided this date) (proceeding in similar manner).

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5. This case is illustrative of that factor: The trial judge actually had a lawful basis for imposing the sentence that he imposed in this case under the "substantial and compelling reasons" authority in OAR 213-008-0001, quoted above. ___ Or at ___n 3 (slip op at 3 n 3). The "plain error" consisted of a failure to follow all the procedural steps required to justify the judge's choice. But, had the matter been called to the judge's attention, we have no reason to think that the judge would not have followed correct procedure.

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Filed: June 30, 2011 IN THE SUPREME COURT OF THE STATE OF OREGON In Re: Complaint as to the Conduct of J. MARK LAWRENCE, Accused. (OSB 08-115; SC S058778) En Banc On review of the decision of a trial panel of the Disciplinary Board. Argued and submitted May 2, 2011. Paula Lawrence, McMinnville, argued and cause and filed the briefs for accused. Stacy Hankin, Assistant Disciplinary Counsel, Tigard, argued the cause and filed the brief for the Oregon State Bar. PER CURIAM The complaint is dismissed. PER CURIAM The issue in this lawyer disciplinary proceeding is whether the accused, by releasing a partial transcript of a juvenile hearing to the press, violated Rule of Professional Conduct (RPC) 8.4(a)(4), which prohibits a lawyer from engaging in conduct that is prejudicial to the administration of justice. A trial panel found the accused guilty of violating RPC 8.4(a)(4) and suspended him for 60 days. We review the decision of the trial panel de novo. ORS 9.536(2); BR 10.6. Because we conclude that

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the Bar failed to prove by clear and convincing evidence that the accused's conduct caused prejudice to the administration of justice, we dismiss the complaint. The facts are straightforward and largely undisputed. In 2007, the accused represented a juvenile male who, along with another male friend, allegedly had touched or swatted several female classmates on the buttocks and had danced in front of the females in a lascivious manner. The incident occurred at the students' middle school. After being informed of the youths' behavior, the vice principal and a police officer interviewed the victims. Based on those interviews, the accused's client and his friend were arrested by a McMinnville Police Officer on February 22, 2007. On February 23, the Yamhill County Juvenile Department filed a delinquency petition alleging that the accused's client had committed acts that, if done by an adult, would have constituted five counts of first-degree sexual abuse and five counts of third-degree sexual abuse. At an initial detention hearing that same day, the court ordered the youths to remain in custody. The events giving rise to this disciplinary action arose out of a second detention hearing held on February 27, 2007, before Judge John Collins. The accused called two of the victims to testify on behalf of his client. The female victims testified that the youths were their friends and that they did not find the youths to be threatening in any way. Regarding the alleged sexual abuse, the female victims testified that the touching or swatting was not sexual in nature but rather was mere horseplay. The victims also testified that they felt pressured by the vice principal and the police officer to make the touching sound hurtful and uncomfortable when it was not. By the second detention hearing, the case was receiving substantial media 2

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attention. Judge Collins allowed the press to attend the detention hearing, but prohibited the press from recording the proceedings. The parties dispute whether the judge prohibited only video recordings or also prohibited audio recordings.1 A number of newspaper and television stories reported the events and testimony at the hearing. After the hearing, the accused obtained a copy of the official audio recording of the hearing and had a partial transcript prepared that contained the victims' testimony. In March 2007, a reporter contacted the accused about the February 27 hearing. The reporter, who was not present at the hearing, expressed disbelief that the female victims had felt pressured by the vice principal and the police officer to make the youths' actions seem sexual. The accused offered to give the reporter a copy of the partial transcript when it was available. The accused believed that it would have been improper to give the reporter the official audio recording of the hearing but thought that the transcript could be released. The accused contacted Deborah Markham, the deputy district attorney handling the case, to see if she objected to releasing the transcript. Markham told the accused that she believed that the court would have to consent. The accused then released the transcript to the reporter without obtaining permission from Judge Collins. Deputy District Attorney Deborah Markham testified that Judge Collins prohibited video recording. Judge Collins testified that he might have prohibited the press from recording the detention hearing, but that he did not remember whether he did so or not. He did remember allowing video recording at a later hearing in the proceeding. The accused testified that Judge Collins prohibited video recording but that he could not remember if the judge prohibited audio recording.
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When Judge Collins learned that the transcript had been released -following news reports that cited the transcript -- he called a meeting with Markham and the accused and told them to release no other transcripts. The testimony from the accused, Markham, and Judge Collins differs regarding that meeting. The accused described the meeting as relaxed and said that Judge Collins had stated that the release of the transcript was permissible. Markham testified that Judge Collins was "very concerned" about the release of the transcript and that Judge Collins said that the accused's disclosure violated the law. Judge Collins testified that the accused did not get his consent to release the transcript, but that he was not sure if the accused needed to do so under the circumstances of the case, particularly given the presence of the press at the hearing. In Judge Collins's description, the meeting was not contentious; although he requested that the parties refrain from releasing any additional transcripts, he did not "feel like [he] needed to be firm" and so did not issue an order barring further releases. In April 2008, several months after the juvenile case was resolved, Tim Loewen, director of the Yamhill County Juvenile Department, reported the accused's action of releasing the transcript to the Bar. After investigating the matter, the Bar charged the accused with violating RPC 8.4(a)(4)2 by releasing to the press "information
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RPC 8.4(a) provides, in relevant part: "It is professional misconduct for a lawyer to: "* * * * * "(4) engage in conduct that is prejudicial to the administration of

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appearing in the record" of a juvenile case without court consent, in violation of ORS 419A.255(1) and (3).3 The Bar alleged that the accused had "usurped" Judge Collins's authority to control the proceeding by not seeking the court's consent before releasing the transcript, and thereby had caused prejudice to the administration of justice. In the proceeding before the trial panel, the accused argued that his release of the transcript did not violate ORS 419A.255 for each of three independent reasons: (1) the transcript that he had prepared was not a part of the record of the case and so was not subject to ORS 419A.255; (2) Judge Collins had consented to the release of the information contained in the transcript when he allowed the press to attend and report on

justice[.]"
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ORS 419A.255 provides, in relevant part:

"(1) The clerk of the court shall keep a record of each case, including therein the summons and other process, the petition and all other papers in the nature of pleadings, motions, orders of the court and other papers filed with the court, but excluding reports and other material relating to the child, ward, youth or youth offender's history and prognosis. The record of the case shall be withheld from public inspection but is open to inspection by the child, ward, youth, youth offender, parent, guardian, court appointed special advocate, surrogate or a person allowed to intervene in a proceeding involving the child, ward, youth or youth offender, and their attorneys. The attorneys are entitled to copies of the record of the case. "* * * * * "(3) Except as otherwise provided in subsection (7) of this section, no information appearing in the record of the case or in reports or other material relating to the child, ward, youth or youth offender's history or prognosis may be disclosed to any person not described in subsection (2) of this section without the consent of the court * * * ."

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the hearing; and (3) the information in the transcript could be released under ORS 419A.255(5)(b) and (d), which list certain exceptions to the confidentiality of juvenile records. Even assuming that he did violate ORS 419A.255, the accused asserted, he did not violate RPC 8.4(a)(4), because his conduct was not prejudicial to the administration of justice. That was so, according to the accused, because the defendant and the victims supported releasing the transcript and because the information contained in the transcript had already been made public as a result of the press attending and reporting on the hearing. Thus, in the accused's view, no harm -- actual or potential -- resulted from his conduct. The trial panel found by clear and convincing evidence that the accused had violated RPC 8.4(a)(4) and suspended the accused from the practice of law for 60 days. The trial panel first determined that ORS 419A.255(3) prohibited the accused from releasing the partial transcript to the press without the consent of the trial court and that the accused had violated the statute in doing so. With little discussion, the trial panel then found that the evidence that the accused had violated the statute also was sufficient to show prejudice to the administration of justice and thus that the accused had violated RPC 8.4(a)(4). The accused sought review in this court. To prove a violation of RPC 8.4(a)(4), the Bar must prove (1) that the accused lawyer's action or inaction was improper; (2) that the accused lawyer's conduct occurred during the course of a judicial proceeding; and (3) that the accused lawyer's conduct had or could have had a prejudicial effect upon the administration of justice. See In re Kluge, 335 Or 326, 345, 66 P3d 492 (2003) (citing In re Haws, 310 Or 741, 746-48, 6

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801 P2d 818 (1990)) (so stating for identically worded former DR 1-102(A)(4)). Because we find the issue to be dispositive, we begin by examining the third element -- whether the accused's conduct had or could have had a prejudicial effect on the administration of justice -- and assume, without deciding, that the accused's conduct violated ORS 419A.255(3) and otherwise satisfied the test set out in Kluge and Haws. Prejudice to the administration of justice "may arise from several acts that cause some harm or a single act that causes substantial harm to the administration of justice." Kluge, 335 Or at 345. This court has identified two components to the "administration" of justice: "1) The procedural functioning of the proceeding; and 2) the substantive interest of a party in the proceeding." Haws, 310 Or at 747. "A lawyer's conduct could have a prejudicial effect on either component or both." Id. The Bar argues that the accused's conduct, a single act, resulted in prejudice to the administration of justice because it had the potential to cause substantial harm to the procedural functioning of the court. The Bar asserts, "Substantial potential harm to the administration of justice occurs whenever a lawyer interferes in or usurps the court's ability to do its job in a proceeding pending before it." The Bar states that the accused "usurped" the court's authority by not seeking Judge Collins's consent prior to releasing the transcript. The Bar cites three disciplinary cases to support its position that the accused's conduct resulted in substantial potential harm to the administration of justice. First, in In re Eadie, 333 Or 42, 36 P3d 468 (2001), this court found a violation of former DR 1-102(A)(4) where the accused lawyer submitted a proposed order containing a 7

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misrepresentation that was intended to influence the judge in changing the trial date. Id. at 58. That conduct substantially harmed the procedural functioning of the court because it resulted in the judge acquiescing to a trial date preferred by the accused and made it necessary for the judge to resolve a dispute resulting from the accused's misrepresentation and to redraft an order. Id. Second, in In re Morris, 326 Or 493, 953 P2d 387 (1998), this court concluded that the accused lawyer had engaged in a single act of conduct that had the potential to cause substantial harm, either to the procedural functioning of the court or to the substantive interests of the parties, when she knowingly filed a notarized document that she had altered. Id. at 502-03. Third, in In re Thompson, 325 Or 467, 940 P2d 512 (1997), this court found a violation of former DR 1-102(A)(4) where the accused lawyer physically confronted a judge after receiving an adverse decision. That conduct caused substantial harm to the administration of justice because the accused's ex parte communication with the judge "unfairly attack[ed] the independence, integrity, and respect due a member of the judiciary." Id. at 475. The conduct also had the potential to cause substantial harm, because it could have influenced the judge to change her decision or to recuse herself from the case. Id. In each of the preceding cases, the accused lawyer engaged in conduct that had the potential to disrupt or to improperly influence the court's decision-making process, Thompson, 325 Or at 475; that created unnecessary work for the court, Eadie, 333 Or at 58; or that had the potential to mislead the court, Morris, 326 Or at 503. Moreover, in Eadie and Morris, the accused lawyers made knowing misrepresentations to the court. Similarly, in Kluge, the accused lawyer's conduct in knowingly filing an 8

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untimely motion to disqualify the trial judge and then failing to serve the motion on opposing counsel caused prejudice to "the procedural functioning of the judicial system by imposing a substantial burden upon both opposing counsel and [the trial judge] to undo the accused's actions." 335 Or at 346. In this case, the Bar has made no showing, as required by Kluge and Haws, that the accused's conduct harmed the procedural functioning of the judicial system, either by disrupting or improperly influencing the court's decision-making process or by creating unnecessary work or imposing a substantial burden on the court or the opposing party. Nor has the Bar shown that his conduct had the potential to result in any of the above. Certainly, Judge Collins did not testify that the accused's actions interfered with Judge Collins's conduct of the juvenile proceeding. Although the Bar correctly asserts that ORS 419A.255 gives the trial court control over the release of protected information in a juvenile record -- and, as noted, we assume without deciding that the accused acted improperly in not seeking the trial court's consent -- the Bar's theory fails to take into account the fact that the information contained in the partial transcript that the accused released was presented in open court and had already been reported by the press.4 It is difficult to see how the accused's release of the same information, in the context of this case, had the potential to cause any harm to the proceeding, much less substantial harm.

Article I, section 10, of the Oregon Constitution grants members of the public, including the press, the right to attend juvenile hearings. State ex rel Oregonian Pub. Co. v. Deiz, 289 Or 277, 284-85, 613 P2d 23 (1980).

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See Kluge, 335 Or at 345 (prejudice to the administration of justice may arise from "several acts that cause some harm or a single act that causes substantial harm"). Indeed, the Bar makes no effort to show that the accused's conduct could have resulted in new information being made public or that the release of the partial transcript itself had any potential impact on the proceeding. In fact, after the press attended the hearing and the accused released the transcript, Judge Collins allowed members of the press to listen to the official audio recording of the hearing. Nevertheless, the Bar asserts that Judge Collins was sufficiently "concerned" about the release of the information to call the accused and Markham to his chambers to discuss the incident. The fact that Judge Collins was "concerned" and met with the accused and Markham does not, by itself, demonstrate the potential for substantial harm to the procedural functioning of the court. Judge Collins himself stated that, although "in a perfect world," he probably would not have wanted the transcript released, in the context of this case and the open court provision of Article I, section 10, of the Oregon Constitution, the release of the partial transcript was likely permissible without his consent because "if [the press is] * * * going to know the information and report the information, at least get it right." Judge Collins's testimony, then, does not demonstrate that the accused's conduct impacted the procedural functioning of the court, even if the accused's conduct was cause for "concern." Nor does the Bar offer any evidence to prove that the release of the partial transcript harmed the substantive interests of the accused's client, the victims, or the state. The accused released the transcript, with the support of his client, in response to an 10

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inquiry from the media and in order to respond to inaccuracies appearing in some media reports. The accused maintained the confidentiality of the victims' names in the transcript, referring to them by their initials, consistent with an earlier order by Judge Collins. In this proceeding, the accused also submitted letters from the two victims who testified (and their parents) that stated their support for the release of the partial transcript. Finally, there was no testimony from the Yamhill County Juvenile Department that the release of the partial transcript had any effect on its substantive interests or its ability to prosecute the case. The Bar appears, instead, to take the position that virtually any violation of a statute, rule, or court order that occurs during the course of a court proceeding and relates to the conduct or any procedural aspect of that proceeding necessarily is prejudicial to the administration of justice. The Bar asserts, in effect, that "substantial potential" harm is implicit in the accused's conduct. Our cases, however, require proof by clear and convincing evidence that an accused's conduct in a specific judicial proceeding caused actual or potential harm to the administration of justice and, when only one wrongful act is charged, that actual or potential harm must be "substantial." Kluge, 335 Or at 345; Haws, 310 Or at 748. Here, the Bar's evidence did not prove that substantial harm resulted or could have resulted from the accused's conduct. We conclude that the Bar has not proved by clear and convincing evidence that the accused violated RPC 8.4(a)(4). The accused's conduct did not result in such prejudice, because there is no evidence that the release of the partial transcript, which contained solely information already presented in open court and reported by the press, 11

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harmed the procedural functioning of the judicial system. Nor is there any evidence that the substantive rights of the accused's client, the other juvenile defendant, the victims, or the state were harmed. "Prejudice to the administration of justice" requires such a showing. Haws, 310 Or at 747-48. The complaint is dismissed.

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