S058335 State v. Heisser

SUPREME COURT CASES

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State: Oregon

Court: Court of Appeals

Docket No: none

Case Date: 03/10/2011

Filed: March 10, 2011

IN THE SUPREME COURT OF THE STATE OF OREGON

STATE OF OREGON,

Petitioner on Review,

DAVID LINN HEISSER,
aka David Linn Dauphine,

Respondent on Review.

(CC 200522450; CA A131308; SC S058335)

On review from the Court of Appeals.*

Argued and submitted November 10, 2010.

Paul L. Smith, Assistant Attorney General, Salem, argued the cause for petitioner on review. With him on the briefs were John R. Kroger, Attorney General and Mary H. Williams, Solicitor General.

Robin A. Jones, Deputy Public Defender, Office of Public Defense Services, Salem, argued the cause for respondent on review. With her on the brief was Peter Gartlan, Chief Defender.

Before, De Muniz, Chief Justice, and Durham, Balmer, Kistler, Walters, and Linder, JJ.**

DE MUNIZ, C. J.

The decision of the Court of Appeals is affirmed. The judgment of the circuit court is reversed, and the case is remanded to the circuit court for further proceedings.

*Appeal from Lane County Circuit Court, Jack A. Billings, Judge. 232 Or App 320, 222 P3d 719 (2009).

**Gillette, J., retired on December 31, 2010, and did not participate in the decision of this case. Landau, J., did not participate in the consideration or decision of this case.

DE MUNIZ, C. J.

The issue in this case is whether defendant and the state entered into a plea agreement, and if so, the terms of that agreement. The parties executed a written plea agreement providing that, at sentencing, the state was "free to seek [upward] departure sentences" within certain limits and, in turn, defendant was "free to seek presumptive sentences." At sentencing, defendant challenged the timeliness of the state's notice of intent to seek upward departure sentences. The trial court concluded that the plea agreement barred defendant from making that argument. The trial court also concluded that there had been no "meeting of the minds" between the parties, because they each subjectively held different understandings about the plea agreement's meaning. For that reason, the trial court withdrew defendant's previously entered guilty pleas and set the case for trial. Defendant was found guilty by a jury and was sentenced to a longer period of incarceration than would have been permitted under the plea agreement.

Defendant appealed, and the Court of Appeals reversed, concluding that the trial court lacked statutory authority to order the withdrawal of defendant's guilty pleas. State v. Heisser, 232 Or App 320, 222 P3d 719 (2009). We allowed the state's petition for review and now affirm the Court of Appeals, albeit on different grounds. On review, we conclude that the trial court applied an incorrect legal standard when it concluded that there was no "meeting of the minds" between the parties and ordered the withdrawal of defendant's guilty pleas. Instead, we hold that the parties entered into an effective plea agreement and that defendant's challenge regarding the timeliness of the state's notice to seek upward departure sentences did not violate the terms of the plea agreement.

The facts relevant to this court's review are undisputed. Defendant was indicted on one count of first-degree robbery, two counts of second-degree theft, and one count of unauthorized use of a vehicle. Before trial, a judge facilitated plea negotiations between defendant and the state.(1) Those plea negotiations resulted in a written plea agreement, which was drafted by the prosecutor. The agreement provided that defendant would plead guilty to both counts of second-degree theft, to the single count of unauthorized use of a vehicle, and to the lesser-included offense of third-degree robbery. Regarding defendant's sentence, paragraph 8 of the plea agreement stated, in part:

"The state is free to seek departure sentences that total no more tha[n] 50 months prison on the felony offenses. The defense is free to seek presumptive sentences and all concurrent sentences which would result in as little as 13 months prison."

With regard to defendant, the written plea agreement also stated that: "No one has made any threats to me or promises other than the plea agreement to get me to enter this plea. My plea of guilty is not based on any representations other than those outlined in this petition." Both the prosecutor and defendant signed the agreement.

On December 13, 2005, the parties appeared at a hearing before the judge who had facilitated the agreement. At that hearing, the prosecutor proffered the written plea agreement, which, he represented, "covers our negotiations in this matter." The prosecutor reiterated that "the details of these negotiations are contained in the plea petition." That judge accepted defendant's guilty pleas. The judge then stated that "I have been bound by these negotiations which will leave you * * * the option to argue for less than the State's going to be arguing for."

A hearing was held before the same judge on the morning of December 15. That hearing apparently was not recorded. It is uncontested, however, that a dispute arose between the state and defendant regarding proof of an aggravating circumstance that would justify upward departure sentences. Although defendant waived his right to have that issue decided by a jury, defendant refused to stipulate to the existence of the aggravating circumstance.

Later on December 15, the parties appeared before another judge for trial on the disputed aggravating factor and for sentencing. At that hearing, defense counsel asserted that the state had failed to give defendant timely notice that it intended to rely on an "enhancement fact" to increase defendant's sentence, as required under ORS 136.765.(2) Specifically, defendant contended that the notice had not been given "after" the filing of the accusatory instrument, as provided by ORS 136.765, because the notice had been filed before the indictment had been issued.

That judge rejected defendant's argument. However, sua sponte, the judge invited the state to withdraw from the plea agreement. The judge stated:

"I don't mean that to dismiss [defendant's] argument. It's actually a creative and a good argument, in -- not in any moral sense, but in the sense that it's his job to do his job as a lawyer. And it would concern me enough that I would be, if the State wanted to say that with that argument out there hanging on appeal, that the circumstances of the negotiations weren't acceptable to it anymore, and it just wanted to start back to square one, I would be willing to say let him withdraw his [plea] and start back to square one, and let's have a trial and see what happens. But I'm prepared to rule denying [defendant's argument], and I'll give the State its choice as to what it wants to do at this point."

The state, in turn, asserted that defendant's argument regarding the timeliness of the notice was

"clearly contrary to what was contemplated by the parties in this particular negotiation[], and unless defense counsel's willing to withdraw the plea [sic], I think that this matter should just be reset on the trial docket."

When defense counsel expressed some confusion, the judge asserted that the state was arguing as follows:

"He [the prosecutor] says that * * * your legal objection to enhanced sentencing is not consistent with the negotiations. He's moving that there's not a meeting of minds in terms of the plea, and he's moving to ask that your plea of guilty be withdrawn and you be permitted to go to trial on the whole thing."

The prosecutor clarified that he so moved only "to the extent that they are going to continue with this objection that they're raising." Defendant refused to withdraw his argument about the lack of timely notice, contending that the terms of the agreement did not bar him from making that legal argument.

The judge stated that he was "treat[ing] this as a motion by the State pursuant to ORS 135.365,[(3)] and any other statutes that might be applicable to cause the defendant to withdraw his plea." The judge then ruled:

"Here, it appears to the State and to the Court that the defendant is proceeding in a manner which is not consistent either with the plea agreement or, quite frankly, the interests of justice. And accordingly, the plea of guilty previously entered will be withdrawn. A plea of not guilty is entered on behalf of the defendant. And again, I believe the Court has that right."

The next day defendant filed a motion for specific performance of the plea agreement. Defendant contended that the plea agreement was a plain and unambiguous contract and that he had fully performed his obligations under it. Defendant's motion for specific performance was heard by a third judge. Before that judge, defendant asserted that the written plea agreement did not limit the arguments that he could make in challenging the state's attempt to obtain upward departure sentences; therefore, he could challenge the timeliness of the state's notice of intent to seek upward departure sentences. That judge rejected defendant's assertion:

"* * * I don't think you can say that [a restriction on the scope of arguments] wasn't in the plea petition because it's there implicitly in paragraph eight when it says that [the prosecutor] can argue for a departure sentence. Well, then that -- or they're free to seek a departure sentence.

"Then that to me, and to [the judge that facilitated the agreement], and I believe to [the prosecutor], meant that you weren't going to then say later: Oh, but we're not agreeing to that departure factor and we want a trial on that. Or you didn't * * * give the notice the right way."

The court also stated: "[I]f the State is free to argue for 50 months then they're free to argue for it. That's what you bargained for."

The court also held that, because the prosecutor had a different subjective understanding than did defendant, there had been no "meeting of the minds" and therefore the parties had not entered into a plea agreement, stating:

"This isn't a game of gotcha. Okay? And that's what upset [the judge who facilitated the agreement] so much about this. It seems clear that the parties expected that the State would be free to ask for up to 50 months, and it seems clear to me that everybody in the room, except maybe your client, expected that you wouldn't be making a timeliness objection or any other kind of objection to that departure allegation notice that had been filed."

The judge later stated:

"I've talked to [the judge who facilitated the agreement] about this. I've reviewed what happened in court with him. I know what happened in court with me. And I don't think there's any question that there was not a meeting of the minds. And if -- that's very clear to me. That's very clear beyond any question. There was no meeting of the minds."(4)

That judge concluded that, because there was no meeting of the minds, there was no plea agreement that could be specifically enforced. The judge offered defendant the opportunity to enter again into the plea agreement, with the understanding that the agreement would not allow defendant to object to the timeliness of the notice, provided that defendant agreed to again enter guilty pleas. Defendant refused the judge's offer and the case was set for trial.

Trial began the next day, January 5, 2006. At that time, defendant moved to reinstate his guilty pleas, contending that they had been improperly withdrawn. He also moved to dismiss the first-degree robbery charge, asserting that his guilty plea to third-degree robbery had placed defendant in double jeopardy as to that count. The trial court denied both motions. A jury found defendant guilty on all counts.

At sentencing, defendant moved to be sentenced in accordance with the plea agreement, with an upper sentence limit of 50 months. The trial court rejected that argument and sentenced defendant to 90 months in prison for first-degree robbery, with a consecutive sentence of 26 months in prison for unauthorized use of a vehicle. Defendant also received 12-month concurrent sentences on each of the two second-degree theft counts.

On appeal to the Court of Appeals, defendant asserted that the trial court had erred in withdrawing defendant's guilty pleas. Defendant contended that the plea agreement did not prohibit him from challenging the timeliness of the state's notice of intent to seek upward departure sentences and that the trial court lacked authority to withdraw his guilty pleas over his objection.

In a divided opinion, the Court of Appeals agreed with defendant that the trial court lacked authority to withdraw the guilty pleas without defendant's consent. Heisser, 232 Or App 327. The majority concluded that ORS 135.365 does not allow the trial court to withdraw a defendant's guilty plea over the defendant's objection; it grants that authority only to the defendant. Id. at 327-28. The majority declined to reach the state's argument that the trial court had inherent authority to vacate a guilty plea that had been wrongly accepted, because the trial court "did not purport to exercise any inherent authority to vacate or reconsider a previous order." Id. at 329. The majority concluded that the case should be remanded for the trial court to "reinstate defendant's guilty pleas and sentence defendant in accordance with [the] plea agreement." Id. at 332. A dissenting judge asserted that defendant was estopped to obtain relief on appeal, because he had declined the opportunity to reinstate the plea agreement by pleading guilty a second time. Id. at 333-39 (Edmonds, J., dissenting).

As noted, we allowed the state's petition for review. The state now concedes that the Court of Appeals correctly concluded that ORS 135.365 did not authorize the trial court to withdraw defendant's guilty plea over defendant's objection. Instead, the state argues in this court that there was no plea agreement because there was no meeting of the minds between the parties. The state also asserts that the trial court retained inherent authority to reconsider its decisions to approve the plea agreement and to accept defendant's guilty plea, just as it has inherent authority to reconsider other orders that it may make.

In response, defendant argues that, once a defendant pleads guilty as part of a plea agreement, the trial court cannot withdraw the guilty plea over the defendant's objection, even if the underlying plea agreement is invalid. Defendant also asserts that the plea agreement in this case unambiguously permitted him to challenge the timeliness of the state's notice of intent to seek upward departure sentences, and that the trial court incorrectly concluded that there had not been a "meeting of the minds" that prevented the formation of a plea agreement.

For reasons that we will explain, we do not need to decide whether a trial court has inherent authority to reconsider a prior decision to approve a plea agreement and accept a guilty plea as part of a plea agreement between the state and a criminal defendant. That is so because, even if the trial court had that authority, the trial court erred in this case in determining that the parties had not reached a plea agreement. We conclude that the trial court applied the wrong legal standard in determining whether there had been a "meeting of the minds" with respect to the plea agreement. Contrary to the trial court's understanding, the "meeting of the minds" of the parties requires an examination of the objective representations of the parties, not their subjective or unspoken intents.

Applying the correct standard, we reject the trial court's conclusion that the plea agreement prohibited defendant from challenging the timeliness of the state's notice to seek upward departure sentences. We agree with defendant that the text of the plea agreement did not foreclose defendant from making that argument.

We begin by first examining the nature of plea agreements and their role in our judicial system. As both the United States Supreme Court and this court have explained, plea agreements are crucial to the proper functioning of the criminal justice system. See Santobello v. New York, 404 US 257, 260-61, 92 S Ct 95, 30 L Ed 2d 427 (1971) (characterizing plea agreements as both "essential" and "highly desirable"); State v. McDonnell, 310 Or 98, 103, 794 P2d 780 (1990) ("the legislature [has] concluded that plea negotiation is an essential component of an efficient and effective judicial system"). The ability to resolve criminal charges through plea agreements offers numerous benefits both to the criminal justice system as a whole and to criminal defendants in particular. Some benefits of the use of plea agreements include:

"It eases the administrative burden of crowded court dockets; it preserves the meaningfulness of the trial process for those cases in which there is a real basis for disputes; it furnishes defendants a vehicle to mitigate the system's harshness, whether the harshness stems from callous infliction of excessive punishment or from the occasional inequities inherent in a system of law based upon general rules; and it affords the defense participation in and control over an unreviewable process that often gives the appearance of fiat and arbitrariness."

William F. McDonald, Plea Bargaining: Critical Issues and Common Practices 4 (1985) (internal quotation marks and citation omitted); see also Santobello, 404 US at 261 (articulating other benefits of plea agreements, including the "prompt and largely final disposition of most criminal cases" and "avoid[ing] much of the corrosive impact of enforced idleness during pretrial confinement for those who are denied release pending trial").

Since 1973, an Oregon prosecutor's authority to enter into plea negotiations and plea agreements has been "formally organize[d] and control[led]" by statute. McDonnell, 310 Or at 102-03. As part of a plea agreement, the prosecutor may give concessions to the defendant in exchange for a plea of guilty or no contest. ORS 135.405(3).(5) Those concessions can include, among others, agreeing to seek dismissal of other charges if a defendant pleads guilty to a charged offense; agreeing to seek dismissal of the charged offense if defendant pleads guilty to another reasonably related offense; and agreeing to make favorable recommendations on sentencing. Id.

If the parties reach a tentative plea agreement, the nature of the agreement must be disclosed to the trial judge no later than the time at which the defendant enters a plea of guilty. See ORS 135.390(2) (2005) (nature of the agreement must be disclosed to the trial judge at the time of tendering a plea); ORS 135.432(2) (2005) (explaining the circumstances under which the nature of the agreement may be disclosed to the trial judge prior to the tender of the plea).(6) The statutory scheme governing plea agreements contemplates different kinds of agreements. Under certain plea agreements the trial judge must give the plea agreement "due consideration," but is not bound by the agreement as to sentencing and may make an independent determination as to the appropriate sentence to be imposed. ORS 135.432(4). However, in other plea agreements approved by the trial court, the court is required to "impose sentence as provided in the agreed disposition recommendation" provided for in the plea agreement. ORS 135.390(4)(a).(7) In that kind of agreement, should the judge conclude that the sentencing concessions in a plea agreement are inappropriate, "the [judge] shall so advise the parties and allow the defendant an opportunity to withdraw the plea." ORS 135.390(4)(b); see also ORS 135.432(3) (to the same effect when the trial judge has been informed of the nature of the agreement prior to the plea being tendered and originally concurred in the outcome).

Although this court has not specifically addressed the proper method for interpreting a plea agreement, contract law generally (but not invariably) controls. As the United States Court of Appeals for the Fourth Circuit has stated:

"In the process of determining whether disputed plea agreements have been formed or performed, courts have necessarily drawn on the most relevant body of developed rules and principles of private law, those pertaining to the formation and interpretation of commercial contracts."

United States v. Harvey, 791 F2d 294, 300 (4th Cir 1986) (citation omitted). See McDonnell, 310 Or at 114-16 (Fadeley, J., concurring in part and dissenting in part) (providing list of authorities applying contract law to plea agreements); Wayne R. LaFave, Jerold H. Israel, Nancy J. King, and Orin S. Kerr, 5 Criminal 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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