S058520 Snyder v. Espino-Brown

SUPREME COURT CASES

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State: Oregon

Docket No: none

Case Date: 04/07/2011

Filed: April 7, 2011

IN THE SUPREME COURT OF THE STATE OF OREGON

CAROL SNYDER,

Respondent on Review,

KATHLEEN ESPINO-BROWN,

Petitioner on Review.

(CC 0704-04750, CA A139175; SC S058520)

En Banc

On review from the Court of Appeals.*

Argued and submitted January 14, 2011.

Matthew J. Kalmanson, Hoffman, Hart & Wagner, LLP, Portland, argued the cause and filed brief for petitioner on review. With him on the brief was Janet M. Schroer.

Gregory E. Price, Baumgartner, Nelson & Price, PLLC, Vancouver, Washington, argued the cause and filed the brief for respondent on review.

WALTERS, 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 Multnomah County Circuit Court, Bruce C. Hamlin, Judge Pro Tempore. 235 Or App 82, 230 P3d 122 (2010).

WALTERS, J.

To prevent the tolling of the statute of limitations under ORS 12.155(2), a person who makes a payment to compensate for injury to or destruction of property, before legal liability for that damage has been determined, may give written notice of the date of the expiration of the statute of limitations to "each person entitled to recover damages for the * * * injury or destruction" within 30 days of the date of the payment. ORS 12.155(1).(1) The question presented by the stipulated facts in this case is whether the class of persons to whom any such notice must be given includes plaintiff, a co-owner of a car who did not file a property damage claim with defendant's insurer before that company made a payment to compensate for damage to the car. We conclude that it does; the class of persons described in ORS 12.155(1) includes each person who has a legal right to bring an action to recover damages for the injury to or destruction of the property for which an advance payment was made and, in this case, that class of persons included plaintiff. Because defendant's insurer did not give plaintiff timely notice of when the statute of limitations would expire, plaintiff's action was not time-barred, contrary to the decision of the trial court. We therefore affirm the decision of the Court of Appeals, which reversed the judgment of the trial court and remanded the case to the trial court for further proceedings.

Plaintiff and her husband were injured in a collision with defendant on January 26, 2004. The Chevrolet Malibu that plaintiff and her husband co-owned also was damaged in that collision. On March 24, not quite two months after the collision and before liability for damages incurred in the collision had been determined, defendant's insurance company issued a check payable to plaintiff's husband in the amount of $410.34 to compensate for damage to the car.(2) The insurance company did not give written notice of the expiration of the statute of limitations to plaintiff or her husband within 30 days after the date of that payment.

Both plaintiff and her husband filed claims with the insurance company seeking compensation for their personal injuries.(3) The insurance company corresponded with plaintiff and her husband about those claims, but did not resolve them.(4) The two-year statute of limitations that applies to personal injury actions expired on January 26, 2006, and, as of that date, neither plaintiff nor her husband had filed such an action against defendant. Within a month thereafter, on February 17, the insurance company sent plaintiff's husband a letter informing him that, ordinarily, his action for personal injuries would be time-barred because he had not filed it on or before January 26, but that the company's payment of $410.34 had "extended the statute of limitations in [his] case pursuant to ORS 12.155." As a result, the insurance company explained, plaintiff's husband had until January 3, 2008, to file an action for personal injuries. The insurance company did not send a similar letter to plaintiff or give her any other written notice of when the statute of limitations would expire.

Plaintiff's husband did not file a personal injury action against defendant within the time permitted by the insurance company's letter, but plaintiff did. Plaintiff filed her complaint on April 26, 2007. Because that date was more than two years after the date of the collision, defendant moved for summary judgment on the ground that plaintiff's action was time-barred. Plaintiff opposed the motion, arguing that the statute of limitations was extended for her, as it had been for her husband, by virtue of the insurance company's advance payment and its failure to give her written notice of the expiration of the statute of limitations pursuant to ORS 12.155. The trial court granted defendant's motion, and plaintiff appealed to the Court of Appeals, which reversed the trial court.

The Court of Appeals reasoned that, as a joint owner of the car, plaintiff was entitled to recover damages for its injury or destruction and was directly benefitted by the insurance company's advance payment to her husband. Snyder v. Espino-Brown, 235 Or App 82, 87, 230 P3d 122 (2010). As a result, the Court of Appeals concluded, the insurance company's failure to give plaintiff written notice of the expiration of the statute of limitations tolled the statute of limitations for her personal injury action. Id. We allowed defendant's petition for review.

We begin our analysis with the text of ORS 12.155, which provides:

"(1) If the person who makes an advance payment referred to in ORS 31.560 or 31.565 gives to each person entitled to recover damages for the death, injury or destruction, not later than 30 days after the date the first of such advance payments was made, written notice of the date of expiration of the period of limitation for the commencement of an action for damages set by the applicable statute of limitations, then the making of any such advance payment does not suspend the running of such period of limitation. * * *

"(2) If the notice required by subsection (1) of this section is not given, the time between the date the first advance payment was made and the date a notice is actually given of the date of expiration of the period of limitation for the commencement of an action for damages set by the applicable statute of limitations is not part of the period limited for commencement of the action by the statute of limitations."

ORS 12.155 does not require that a person who makes an "advance payment" give written notice of the expiration of the statute of limitations; rather, it imposes a consequence for failure to give that notice. Subsection (1) of that statute provides that, if a person makes an advance payment and gives written notice of the expiration of the applicable statute of limitations not later than 30 days after the date of the first advance payment, the advance payment does not suspend the statute of limitations as provided in subsection (2). Subsection (2) describes what happens when the written notice described in subsection (1) is not given -- the time between the date of the first advance payment and the date that the written notice is actually given is not counted in calculating the period for commencement of the action.

A person who makes an "advance payment" under subsection (1) of ORS 12.155 and who wishes to prevent the tolling of the statute of limitations under ORS 12.155(2) must give the described notice to "each person entitled to recover damages for the * * * injury or destruction." Defendant contends that the quoted phrase is ambiguous and that the legislature intended it to mean "each person who made a claim 'for the * * * injury or destruction' that led to an advance payment."(5) For the reasons that follow, we agree with defendant that that phrase is capable of more than one meaning. However, we disagree that the legislature intended the interpretation for which defendant argues.

Defendant rests her first argument that ORS 12.155(1) is ambiguous on the meaning of the terms "advance payment" and "entitled." To qualify as an "advance payment," as that term is defined in ORS 31.550, the payment must occur before any person has been determined to have a legal right to damages.(6) However, defendant notes, ORS 12.155(1) provides for notice to each person "entitled" to recover damages. Defendant, citing one dictionary definition, asserts that the word "entitled" means "give[n] a right or legal title to: qualif[ied] (one) for something: furnish[ed] with proper grounds for seeking or claiming something." Webster's Third New Int'l Dictionary 758 (unabridged ed 2002). Defendant therefore argues that, to be "entitled" to recover damages, a person must have a "legal right to damages at the time of the advance payment." Defendant contends that because no one has a legal right to damages at the time that an advance payment is made, ORS 12.155(1) appears to create a null set requiring notice to no one to prevent the tolling of the statute of limitations.

But, as defendant acknowledges, the dictionary definition of the word "entitled" also encompasses a concept that is more consistent with the legislature's obvious intent. The word "entitled" may also mean "furnish[ed] with proper grounds for * * * claiming something." Webster's at 758. In other contexts, the legislature has used the word "entitled" to mean that a person has legal grounds to bring an action to recover damages rather than to mean an existing legal right to judgment for damages. See, e.g., ORS 133.739(1) (person whose communication is intercepted has claim for relief and is "entitled" to recover damages); ORS 646.140(1) (plaintiff in price discrimination action "entitled" to recover treble damages). If we interpret the word "entitled" as used in ORS 12.155(1) to have that meaning, then we avoid a nonsensical result. At the time of an advance payment, no person will have an established legal right to judgment for damages for injury or destruction, but one or more persons may have legal grounds to bring an action to recover such damages. We think that the legislature intended to describe the latter class of persons when it used the word "entitled" in the phrase "entitled to recover damages" in ORS 12.155(1).

Defendant next asserts that ORS 12.155(1) is ambiguous because it provides for notice to those who are entitled to recover damages for "injury or destruction," but does not specify the "injury or destruction" to which it refers. With that argument, defendant hits the mark. The words "injury or destruction" have no clear referent. They could be understood to refer to the injury or destruction that was the subject of an advance payment, but they also could be understood to refer to the injury or destruction that was the subject of a particular person's claim for an advance payment.

We must look further than the words "injury or destruction" to ascertain the legislature's intent. As noted, ORS 31.550 defines the term "advance payment" to mean "compensation for the * * * injury or destruction of property." Given that definition of "advance payment," ORS 12.155(1) provides, in effect, that, to prevent the tolling of the statute of limitations, a person who pays "compensation for the * * * injury or destruction of property" must give the described notice to each person who has legal grounds to bring an action to recover damages "for the * * * injury or destruction." The legislature's use of the same words to define the purpose of an advance payment and to describe the persons to whom notice must be given indicates an intent to link those concepts. A person who pays compensation for the injury or destruction of property must give the described notice to each person who has the right to bring an action to recover damages for "the" injury or destruction. The word "the" can be understood to refer to the injury or destruction of the property that was the subject of the advance payment.

In contrast, ORS 12.155(1) does not indicate a legislative intent to link the class of persons to whom notice must be given with the filing of a claim for payment. The legislature did not define the term "advance payment" to mean compensation that is paid as a result of a claim for payment, nor did it define the class of persons to whom notice must be given in terms of those who filed claims for payment. Instead, the legislature defined that class in terms of those who have a certain legal right -- the legal right to bring an action to recover damages. That legal right does not depend on the prior filing of a claim for payment.

Nevertheless, defendant asserts, ORS 12.155 includes other indicators of legislative intent that favor her interpretation. For instance, defendant argues, by selecting a 30-day period for giving notice, the legislature indicated an intent to limit the class of persons to whom notice must be given to those who have filed claims for compensation. A person who makes an advance payment will know the identity of those persons and can give the described notice within that tight time frame. If, defendant asserts, the payor were required to give notice to each person with legal grounds to bring an action to recover damages, including, for example, all of the owners of damaged property, the payor would be required to conduct a time-consuming investigation that the legislature, in imposing a 30-day window, could not have intended.

What defendant neglects to recognize, however, is that neither ORS 12.155(1), nor any other statute, requires that an advance payment be made, much less that it be made within a specified period of time. A person who wishes to make an advance payment may wait to do so until after he or she has ascertained the identities of the persons to whom notice must be given, and, knowing those identities, will have little difficulty giving the described notice within 30 days after payment.

Defendant also argues that, by using the word "such" in the phrases "such advance payment" and "such period of limitations," the legislature expressed an intent to link the described notice to the claim that led to the payment. We do not understand how the use of the word "such" in those phrases compels that conclusion. The use of the word "such" in conjunction with the terms "advance payment" and "period of limitations" is also consistent with a legislative intent to link the described notice to the injury or destruction for which the advance payment was made.

Finally, defendant contends that ORS 31.565 provides that an advance payment for property damage is not an admission of liability unless the "parties to the payment" agree to the contrary in writing.(7) The "parties to the payment," defendant asserts, are the persons who made the payment and the persons whose claim led to the payment. In defendant's view, ORS 12.155 should be interpreted to require notice by and to those same "parties."

We do not agree that the meaning of the phrase "parties to the payment," as used in ORS 31.565, is material to our interpretation of ORS 12.155. Even if defendant were correct that, as used in ORS 31.565, that phrase means the payor and the person whose claim led to the payment -- a question we do not decide -- that conclusion would not affect our interpretation of ORS 12.155. In ORS 31.565, the legislature used the term "parties to the payment" to delineate those persons whose agreement is necessary to render the fact of an advance payment admissible on the issue of liability. The legislature addressed a different issue in ORS 12.155 (the tolling of the statute of limitations) and required notice to "each person entitled to recover damages for the * * * injury or destruction," and not to the "parties to the payment." We presume that the legislature intended distinct meanings with the different terminology that it used in those two statutes. See Scott v. State Farm Mutual Auto. Ins., 345 Or 146, 155, 190 P3d 372 (2008) (legislature used two different terms indicating it intended two different meanings); State v. Guzek, 322 Or 245, 265, 906 P2d 272 (1995) ("When the legislature uses different terms in related statutes, we presume that the legislature intended different meanings.").

More helpful as context for the phrase used in ORS 12.155(1) is ORS 31.555(1). ORS 31.555(1) requires that a judgment rendered in favor of a "party" for whose benefit an advance payment has been received must be reduced by the amount of the advance payment.(8) To be a "party" to and obtain a judgment in an action for injury to or destruction of property, a person must have the legal right to bring the action and to recover damages for that injury or destruction. If ORS 12.155 is interpreted to require that, to avoid tolling, a person who makes an advance payment must give notice of the expiration of the statute of limitations to each person with the legal right to bring an action to obtain a judgment, then all who could obtain judgments that would be reduced by an advance payment would receive that notice. If ORS 12.155 were instead interpreted as defendant proposes, only some of those who could obtain such judgments would receive that notice -- i.e., those who filed claims for payment with the payor before the payor made an advance payment.

In Duncan v. Dubin, 276 Or 631, 636-37, 556 P2d 105 (1976), this court determined that the legislature's objective in enacting ORS 12.155 was to protect injured persons from being "lulled" into thinking that the person who made an advance payment had acknowledged responsibility for all damages incurred and that, as a result, limitation periods no longer applied.(9) The legislative history that the court reviewed in Duncan does not reveal a legislative intent to protect only those injured persons who file claims for payment before an advance payment is made. Given that the legislature neither required the filing of such claims nor referenced them, we do not believe that the legislature intended to narrow the class of persons to whom notice must be given to injured persons who file such claims and whose claims result in an advance payment. Considering the statute's text, context, and objective, we conclude that the legislature intended that, to prevent the tolling of the statute of limitations, a person who makes an advance payment must give the notice described in ORS 12.155 to each person who has a legal right to bring an action to recover damages for the injury to or destruction of the property for which the advance payment was made.

Applying that interpretation of ORS 12.155 to the facts of this case, we conclude that, to prevent the tolling of the statute of limitations by its advance payment, the insurance company was required to give the described notice to plaintiff. The insurance company made an advance payment to compensate for injury to or destruction of the Chevrolet Malibu. Plaintiff was a co-owner of that car, and, as such, had a legal right to bring an action to recover damages for its injury or destruction. See Carte v. Flury Buick-Jeep, Inc, 264 Or 479, 488, 506 P2d 701 (1973) (owner of car has action for damages to car); Parker v. McCartney, 216 Or 283, 286, 338 P2d 371 (1959) (co-owners of car equal in status and ownership). Thus, to prevent the tolling of the statute of limitations, the insurance company was required to give plaintiff the written notice described in ORS 12.155.

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.

1. The full text of ORS 12.155 is set forth infra.

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2. The record does not expressly indicate that plaintiff's husband filed a claim with the insurance company seeking compensation for damage to the car or include such a document. The record does contain an "appraisal report" that identifies plaintiff's husband as the owner of the car.

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3. The record does not contain the documents that plaintiff and her husband filed.

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4. That correspondence included five letters to plaintiff requesting information about her injuries.

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5. Defendant expressly declines to argue that ORS 12.155 requires notice to the person or persons to whom an advance payment for property damage is made payable. That is because, as defendant acknowledged at oral argument in this case, those who make advance payments for property damage often make advance payments payable to the entity that repairs the damaged property rather than to the owner or owners of the property. Defendant acknowledges that the legislature did not intend that those who make advance payments give the described notice to such payees.

Defendant also does not argue that the insurance company's written notice to plaintiff's husband constituted notice to plaintiff by virtue of the relationship between them, either as co-owners of the car or as husband and wife. In this case, that argument would not advance defendant's position, because the insurance company's written notice to plaintiff's husband came too late to prevent the tolling of the statute of limitations. The insurance company did not give plaintiff's husband written notice of the expiration of the statute of limitations within thirty days of the date of its advance payment, and his statute of limitations was extended as described in the letter that the insurance company eventually sent to him. Plaintiff filed her action within the time permitted by that letter. Therefore, even if the insurance company's letter to plaintiff's husband constituted written notice to plaintiff, plaintiff's action was timely. Defendant does not ask us to decide, and we need not decide, whether, by virtue of the relationship between persons, written notice to one person may constitute written notice to another sufficient to satisfy the terms of ORS 12.155.

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6. ORS 31.550 provides as follows:

"As used in ORS 12.155 and 31.550 and 31.565, 'advance payment' means compensation for the injury or death of a person or the injury or destruction of property prior to the determination of legal liability therefor."

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7. ORS 31.565 provides as follows:

"Any advance payment made for damages arising from injury or destruction of property is not an admission of liability for the injury or destruction by the person making the payment unless the parties to the payment agree to the contrary in writing."

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8. ORS 31.555(1) provides, in relevant part:

"If judgment is entered against a party on whose behalf an advance payment referred to in ORS 31.560 or 31.565 has been made and in favor of a party for whose benefit any such advance payment has been received, the amount of the judgment shall be reduced by the amount of any such payments in the manner provided in subsection (3) of this section."

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9. In Duncan, the plaintiff incurred both personal injuries and property damage as a result of a collision with the defendant. The defendant's insurer paid $306.75 to a repair shop to compensate the plaintiff for damage to the car but did not give the plaintiff written notice of the expiration of any statute of limitations. The plaintiff commenced an action seeking damages for her personal injuries, but arguably did not do so until seven days after the two-year personal injury statute of limitations had expired. 276 Or at 634. In response to the defendant's contention that her action was time-barred, the plaintiff argued that the personal injury limitations period was tolled by the insurer's failure to give written notice under ORS 12.155. The defendant countered that because the insurer's advance payment was for property damage, the insurer's failure to give written notice of the expiration of the statute of limitations tolled only the property damage, and not the personal injury, limitations period. 276 Or at 636.

This court decided that the text of ORS 12.155 was ambiguous and turned to its legislative history for assistance. The court determined that the legislature had enacted ORS 12.155 to protect injured persons from being "lulled" into thinking that the payor had acknowledged responsibility for all damages incurred and that, as a result, limitation periods were no longer applicable. 276 Or at 636-37. In the court's view, had the legislature anticipated the question of whether a payor's failure to give written notice tolled all applicable statutes of limitations, it would have decided that question affirmatively. As a result, the court interpreted ORS 12.155 to toll the plaintiff's personal injury statute of limitations. The court reasoned that

"[a] contrary holding would be at odds with the legislative intent that advance payment not mislead an injured party into believing that he need not diligently press his claim."

276 Or at 638.

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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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