S055292 Farr v. Myers

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State: Oregon

Docket No: (SCS055292)

Case Date: 12/28/2007

FILED: December 28, 2007

IN THE SUPREME COURT OF THE STATE OF OREGON

LAURA CULBERSON FARR,

Petitioner,

HARDY MYERS,
Attorney General,
State of Oregon,

Respondent.

(SC S055292)

En Banc

On petition to review ballot title filed September 12, 2007; considered and under advisement on December 5, 2007.

Margaret S. Olney, Smith, Diamond & Olney, Portland, filed the petition to review ballot title and reply to respondent's answering memorandum for petitioner.

Christina M. Hutchins, Assistant Attorney General, Salem, filed the answering memorandum for respondent. With her on the memorandum were Hardy Myers, Attorney General, and Mary H. Williams, Solicitor General.

LINDER, J.

Ballot title referred to the Attorney General for modification.

LINDER, J.

Petitioner seeks review of the Attorney General's certified ballot title for Initiative Petition 1 (2010). (1) See ORS 250.085(2) (specifying requirements for seeking review of certified ballot title). This court reviews the certified ballot title to determine whether it substantially complies with ORS 250.035(2). See ORS 250.085(5) (stating standard of review). For the reasons explained below, we refer the ballot title to the Attorney General for modification.

Initiative Petition 1 is a statutory proposal that establishes certain minimum educational and training requirements as a condition of performing what the measure defines as "high velocity, low amplitude" spinal manipulation and adjustment. Under the proposed measure, health professional regulatory boards, as specified in ORS 676.160, may suspend, revoke, or refuse to renew the license or registration of a person under their jurisdiction who performs such spinal manipulations without the requisite education and training. Likewise under the proposed measure, the board that regulates athletic trainers (who are not covered under ORS 676.160) may suspend, revoke, or refuse to renew an athletic trainer's license or registration if he or she performs "high velocity, low amplitude" spinal manipulations without the requisite education and training.

The Attorney General certified the following ballot title for Initiative Petition 1:

"ESTABLISHES MINIMUM EDUCATIONAL, OTHER
REQUIREMENTS TO PERFORM SPINAL MANIPULATION,
ADJUSTMENTS; VIOLATIONS ARE UNLAWFUL
CHIROPRACTIC PRACTICE

"RESULT OF 'YES' VOTE: 'Yes' vote establishes minimum educational,

training requirements, legal authorizations, for spinal manipulation and adjustments by persons in Oregon; makes violations punishable as unlawful chiropractic practice.

"RESULT OF 'NO' VOTE: 'No' vote makes no changes to training and educational requirements for spinal manipulation and adjustments by different professions; requirements remain set by respective licensing boards.

"SUMMARY: Current law contains statutes, rules and regulations governing the scope of practice of health care practitioners, including chiropractors and athletic trainers. Measure prohibits persons from performing 'high velocity, low amplitude spinal manipulation or chiropractic spinal adjusting' (defined) without having: legal authority to perform 'differential diagnosis' (defined) in Oregon; 400 hours of hands-on instruction in spinal manipulation and adjustments; 900 hours of clinical training directly supervised by licensed physician over at least twelve months. Measure makes performance of spinal manipulation and adjustments unlawful chiropractic practice and grounds for a health professional regulatory board having authority over a health care practitioner or the Board of Athletic Trainers to suspend, revoke or refuse to renew a license or registration or impose other lawful disciplinary action. Other provisions."

Petitioner challenges only the summary prepared by the Attorney General for the proposed measure. ORS 250.035(2)(d) requires that the summary contain "[a] concise and impartial statement of not more than 125 words summarizing the state measure and its major effect." Petitioner advances two independent challenges to the adequacy of the summary, which we consider in turn.

Petitioner's first challenge is that the description of current law in the summary is unhelpful, because merely stating that existing "statutes, rules and regulations" govern the scope of practice of health care practitioners provides no useful information to voters. In petitioner's view, that problem is compounded because the summary singles out chiropractors and athletic trainers and, by doing so, suggests that they are the only professionals affected by the proposal. The Attorney General does not directly respond to petitioner's concern that the summary's reference to current law is too generic. As for petitioner's claim that the summary singles out chiropractors and athletic trainers, the Attorney General urges that, because the summary refers to "health care providers, including chiropractors and athletic trainers" (emphasis added by Attorney General), the summary adequately explains that health care providers more generally are affected by the proposed measure. The Attorney General defends the specific reference to chiropractors and athletic trainers because the proposed measure itself specifically includes those groups by extending its scope to the regulatory board that oversees athletic trainers and by declaring that a violation of the statutory prohibition is an unlawful "chiropractic practice."

We agree with petitioner that merely stating that current law "contains statutes, rules and regulations governing the scope of practice of health care practitioners" does not give voters needed information to assess the major effect of the proposed measure. Under current law, the boards that oversee health care professionals establish educational and training requirements as a prerequisite for obtaining a license or other credential to practice their respective professions. See, e.g., ORS 685.060(2) (2005) , amended by Or Laws 2007, ch 327, § 1 (studies required of applicant for naturopathic license include those listed by statute and other subjects as required by the Board of Naturopathic Examiners); ORS 688.160(6)(d) (giving Physical Therapist Licensing Board authority to establish standards and tests to determine qualifications of applicants). That point must be made so that voters can understand that the proposed measure, by mandating minimum education and training requirements for performing "high velocity, low amplitude spinal manipulation and chiropractic spinal adjust[ment]," (2) would change the current legal authority of the health care regulatory boards in that regard.

We also agree with petitioner that the summary, by listing only chiropractors and athletic trainers as examples of the licensed professionals affected by the proposed measure, does not adequately describe the proposed measure's scope in terms of who it affects. The proposed measure would prescribe educational and training requirements for all health care professionals regulated by boards listed in ORS 676.160. The boards so listed regulate a wide range of health care professionals (e.g., naturopaths, medical physicians, and physical therapists), some of whom may now perform or may in the future perform spinal manipulations of the kind that the proposed measure describes. (3) Because the proposed measure makes violation of its provisions an unlawful "chiropractic" practice, identifying chiropractors in the summary as among the health care professionals affected by the proposed measure does not aid in explaining what other health care professionals are subject to the proposed measure's terms. Nor does listing athletic trainers do so. Athletic trainers are not health care professionals regulated by any board listed in ORS 676.160. Rather, they are in a category of their own. See generally ORS 688.701- 688.734 (provisions governing licensing and oversight of athletic trainers). Because the proposed measure nevertheless specifically extends to them, the Attorney General appropriately specially identified them as professionals who would be affected by the proposed measure. But, again, doing so does not assist in describing that a broader group of health care professionals regulated by boards listed in ORS 676.160, in addition to chiropractors, also could be affected. We therefore conclude that the Attorney General's summary does not substantially comply with ORS 250.035(2)(d) in that regard.

Petitioner's second challenge to the summary is that it does not accurately describe the major effect of the proposed measure because it does not explain that, at present, "only chiropractors receive [the] specified kind of training" that the measure requires. Petitioner urges that the real effect of the measure will be to give chiropractors "a monopoly" over spinal manipulation therapy and make it unlawful for other health care professionals to provide the same therapy.

The proposed measure, however, does no more than establish minimum levels of training and education that health care professionals and athletic trainers must meet as a condition of performing the described spinal manipulation therapy. It does not require that a person be a licensed chiropractor to perform that therapy. Whether other health care professionals have obtained, or in the future will obtain, the minimum training and education that the proposed measure would require cannot be determined from the terms of the measure itself or from other governing law. We agree with the Attorney General that petitioner's second ground for challenging the summary requires speculation that is beyond the scope of the ballot title process. Sizemore v. Myers, 326 Or 220, 230, 953 P2d 360 (1997) ("factual investigation" is well beyond the scope of a ballot title review).

Ballot title referred to the Attorney General for modification.

APPENDIX

"Be it Enacted by the People of Oregon:

"SECTION 1. (1) As used in this section:

"(a) 'Differential diagnosis' means the determination of which of two or more diseases with similar symptoms is the one from which the patient is suffering.

"(b) 'High velocity, low amplitude spinal manipulation or chiropractic spinal adjustment' means impulse adjusting or thrusting by the practitioner's hands of a nature that the patient cannot prevent the motion. The spinal manipulation or adjustment commences at the point where mobilization ends and the motion encounters the elastic barrier or resistance and ends at the limit of anatomical integrity.

"(c) 'Mobilization' means movement applied singularly or repetitively within or at the physiological range of joint motion, without imparting a thrust or impulse, with the goal of restoring joint mobility.

"(2) A person may not perform high velocity, low amplitude spinal manipulation or chiropractic spinal adjustments without having:

"(a) The legal authority to perform differential diagnosis in this state;

"(b) Received a [sic] least 400 hours of hands-on instruction in spinal manipulation or spinal adjustment; and

"(c) Received at least 900 hours of clinical training directly supervised by a licensed physician over a period of at least twelve months.

"(3) Violation of subsection (2) of this section constitutes the unlawful practice of chiropractic and is grounds for a health professional regulatory board, as specified in ORS 676.160 and having authority over a health care practitioner, or the Board of Athletic Trainers to suspend, revoke or refuse to renew the license or registration of or impose other disciplinary action allowed by law against the health care practitioner or athletic trainer who commits the violation.

"SECTION 2. Section 1 of this 2010 Act is not intended to apply retroactively, and nothing in section 1 of this 2010 Act provides grounds for disciplinary action against a health care practitioner or an athletic trainer that are based on conduct occurring before the effective date of this 2010 Act. However, section 1 of this 2010 Act does not prevent a health professional regulatory board, as specified in ORS 676.160 and having authority over a health care practitioner, or the Board of Athletic Trainers from suspending, revoking or refusing to renew the license or registration of or imposing other disciplinary action allowed by law against a health care practitioner or athletic trainer on any ground that was the basis for disciplinary action before the effective date of this 2010 Act.

"SECTION 3. Section 1 of this 2010 Act is added to and made a part of ORS chapter 684."

1. The proposed measure is set forth in the Appendix.

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2. We note the proposed measure defines "spinal adjustment," whereas the summary refers to the procedure as "spinal adjusting."

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3. ORS 676.160 contains an extensive list of regulatory boards that oversee health care professionals. See, e.g., ORS 676.160(3) (State Board of Clinical Social Workers); ORS 676.160(6) (Board of Examiners of Licensed Dietitians); ORS 676.160(9) (Board of Naturopathic Examiners); ORS 676.160(13) (State Board of Pharmacy); ORS 676.160(14) (Board of Medical Examiners); ORS 676.160(16) (Physical Therapist Licensing Board). As we explain in our answer to petitioner's second challenge to the summary, neither the proposed measure nor other governing law provides a way to determine which other licensed health care professionals will be affected by the proposed measure. The summary therefore does not have to list or specifically identify those other health care professionals. But it must, better than it does now, explain that the major effect of the measure is to establish minimum levels of training and education for other health care professionals, in addition to chiropractors, who now perform or are likely in the future to perform "high velocity, low amplitude" spinal manipulations.

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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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