S058602 State v. Gilmore

SUPREME COURT CASES

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State: Oregon

Docket No: none

Case Date: 05/26/2011

Filed: May 26, 2011

IN THE SUPREME COURT OF THE STATE OF OREGON

STATE OF OREGON,

Respondent on Review,

ROBERTA GAIL GILMORE,

Petitioner on Review.

(CC 0702221CR; CA A139547; SC S058602)

On review from the Court of Appeals.*

Argued and submitted March 8, 2011, at the University of Oregon School of Law, Eugene, Oregon.

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

Tiffany Keast, Assistant Attorney General, Salem, argued the cause and filed the brief for respondent on review. With her on the brief were John R. Kroger, Attorney General, and Mary H. Williams, Solicitor General.

Before De Muniz, Chief Justice, and Durham, Kistler, Walters, Linder, and Landau, Justices**

KISTLER, J.

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

*Appeal from Klamath County Circuit Court, Rodger J. Isaacson, Judge. 235 Or App 380, 231 P3d 1191 (2010)

**Balmer, J., did not participate in the decision of this case.

KISTLER, J.

After a person has been charged with a crime and the right to counsel has attached, Article I, section 11, of the Oregon Constitution prohibits the police from asking that person about the charged crime without first notifying the person's lawyer, unless the person initiated the conversation and knowingly and intentionally waived his or her right to counsel. See State v. Randant, 341 Or 64, 71-73, 136 P3d 1113 (2006). This case raises once again the question of what steps the police must take to ensure a knowing and intentional waiver. In this case, the trial court implicitly found that defendant had waived her right to counsel and denied her motion to suppress. The Court of Appeals affirmed that ruling and the resulting judgment without opinion. State v. Gilmore, 235 Or App 380, 231 P3d 1191 (2010). Having allowed review, we now reverse the Court of Appeals decision and the trial court's judgment and remand this case for further proceedings.

Two women brandishing a sword robbed the Purple Parrot Lounge in Klamath Falls. As a result of that crime, the grand jury charged defendant with conspiracy to commit robbery and first-degree robbery. The trial court arraigned defendant on those charges and appointed counsel to represent her. After her arraignment, defendant remained in custody pending trial. Approximately two months later, while she was still awaiting trial, defendant sent two notes to Oregon State Police Detective Mogle asking him "to come talk to her."(1) Although the notes did not say what defendant wanted to talk about, Mogle recently had spoken to a member of defendant's family and understood that defendant "wanted to see her kids before she went to prison."

After he received the second note, Mogle agreed to meet with defendant. Pursuant to a department policy that requires two law enforcement officers to be present during such a meeting, Mogle asked Klamath County Detective Johnson to accompany him. When he asked Johnson to go with him, Mogle was not aware that Johnson had arrested defendant on her pending robbery and conspiracy charges. Johnson, for his part, did not realize that the person whom Mogle was going to meet was the person whom he had arrested approximately two months earlier for the Purple Parrot robbery.

When defendant was escorted into the interview room to meet with Mogle, she was surprised to see Johnson there. She asked Mogle, "Oh, no, what'd you bring him for?" Defendant said that Johnson was "the one [who] had arrested her on the case that she's got pending," and defendant and Mogle spoke briefly about "why she didn't want [Johnson] there." Johnson told defendant that department policy required that two officers be present during the meeting.

When asked if that were the entirety of their conversation, Mogle testified:

"No. She said that she wanted to see her kids before she went up to the pen. That she had information that Gina had done the Purple Parrot robberies in Medford [apparently a different set of robberies from the Klamath Falls Purple Parrot robbery]. And that her attorney was an asshole. And that I was to relate to the DA that if you allowed her to have programs, she would take the deal and plead right away. And also there was a conversation -- she said that she knew where the sword -- who -- the sword was -- she gave it to somebody."

When asked whether he had questioned defendant about "the Purple Parrot incident," Mogle replied that he did not think that he had asked specific questions about that robbery. However, he noted that he might have said, "That was pretty stupid. Why would you be involved in that." Mogle also acknowledged that he told defendant that, "if she knew where the sword was[, s]he probably ought to give it up." In response to Mogle's statement, defendant used Mogle's cell phone to call the person who was keeping the sword. That person turned the sword over to the police.

It is not clear from Mogle's testimony when, during their conversation, he discussed either the robbery or the sword with defendant or what prompted him to mention the charged crimes; specifically, it is not clear whether Mogle asked defendant about the Purple Parrot robbery only after she brought up the possibility of making a deal with the district attorney regarding that crime or whether he asked about the pending charges first. One proposition is clear from everyone's testimony, however. At no point during the meeting did either officer advise defendant of her Miranda rights, remind her that she had a right to have counsel present before discussing the pending charges, or otherwise seek to determine whether defendant knowingly and intentionally chose to waive her right to counsel regarding the pending charges.

After defendant's lawyer learned of the meeting, he moved to suppress both defendant's statements about the charged crime and the physical evidence that the officers had obtained as a result of the meeting. He contended that, in questioning defendant, the officers had violated her right to counsel under both Article I, section 11, of the Oregon Constitution and the Sixth Amendment to the United States Constitution. The trial court denied defendant's motion. It reasoned that, because defendant had "evinced a willingness and desire for a generalized discussion about the investigation," the officers had not violated either her state or federal right to counsel.

After the trial court's ruling, defendant entered into a plea agreement with the state. It appears that defendant agreed to enter a conditional guilty plea to second-degree robbery, see ORS 135.335(3) (authorizing conditional guilty pleas), and that the state agreed to dismiss the conspiracy and first-degree robbery charges.(2) The trial court accepted the parties' plea agreement and entered judgment accordingly. The Court of Appeals affirmed the trial court's judgment, and we allowed defendant's petition for review to consider whether the officers complied with defendant's right to counsel, as guaranteed by the state and federal constitutions. We begin with defendant's state constitutional claim.

The relevant principles are well established. Article I, section 11, of the Oregon Constitution guarantees, among other things, the right of a criminal defendant "[i]n all criminal prosecutions * * * to be heard by himself and counsel." That right "entitle[s a person charged with a crime] to the benefit of an attorney's presence, advice and expertise in any situation where the state may glean involuntary and incriminating evidence or statements for use in the prosecution of its case against defendant," without regard to "whether or not [a] defendant specifically requests an attorney's presence at the interrogation." State v. Sparklin, 296 Or 85, 93, 672 P2d 1182 (1983). "Ordinarily, 'there can be no interrogation of a defendant concerning the events surrounding the crime charged unless the attorney representing the defendant on that charge is notified and afforded a reasonable opportunity to attend.'" Randant, 341 Or at 71 (quoting Sparklin, 296 Or at 93).

That bar is not absolute, however. As Sparklin made clear, the right to counsel under Article I, section 11, is offense-specific; that is, "[t]he [state constitutional] prohibitions placed on the state's contact with a represented defendant do not extend to the investigation of factually unrelated criminal episodes." 296 Or at 95; see State v. Davis, 313 Or 246, 263, 834 P2d 1008 (1992) (reaffirming that principle). Beyond that, Article I, section 11, does not preclude the state from using statements about the charged crime that a defendant unilaterally volunteers. Randant, 341 Or at 71. Finally, if a defendant initiates a conversation about a charged crime with the police and knowingly waives the right to counsel, Article I, section 11, does not bar the state from using any statement that the defendant makes about the charged crime in response to police questions, even though the police did not notify the defendant's counsel in advance of their meeting. See Id. at 71-73.

In this case, there is no dispute that the state had charged defendant with two crimes and that the trial court had appointed counsel to represent defendant on those charges more than two months before she met with Mogle and Johnson. There is also no dispute that Mogle's conversation with defendant was not limited to factually unrelated crimes; at least some of their conversation centered on the robbery of the Purple Parrot in Klamath Falls, which gave rise to the robbery and conspiracy charges that defendant was facing. Finally, the state does not claim that defendant unilaterally volunteered the statements that she later sought to suppress. Rather, as Mogle testified, defendant made statements about the charged crime in response to his remarks to her. The issues accordingly reduce to whether defendant initiated the conversation about the charged crimes and, if she did, whether she knowingly and intentionally waived her right to counsel before making those statements.

On the first issue, the parties disagree as to who brought up the Klamath Falls robbery first -- an issue that is not completely clear from the record that the state developed at the hearing on defendant's motion to suppress. Even if we assume, however, that defendant initiated the discussion of the charged crimes, the state still had to prove that defendant knowingly and intentionally waived her right to counsel. See Randant, 341 Or at 73; State v. Meyrick, 313 Or 125, 132, 831 P2d 666 (1992) (so stating in the context of waiving the right to counsel's assistance at trial).(3)

On that issue, this court held in State v. Foster, 303 Or 518, 530-31, 739 P2d 1032 (1987), and reaffirmed in Randant, that, "when a defendant voluntarily initiates contact with the police after counsel has been appointed, knowledge of the Miranda rights is sufficient to ensure that the defendant's waiver of his or her Article I, section 11, right [to counsel] is a knowing one." Randant, 341 Or at 73.(4) Not only do Miranda warnings advise defendants of the right to counsel, but they also put defendants on notice of the consequences of foregoing counsel's assistance during police questioning -- that any statement that they might make can be used against them. Cf. Patterson v. Illinois, 487 US 285, 293-94, 108 S Ct 2389, 101 L Ed 2d 261 (1988) (explaining why advising defendants of their Miranda rights is sufficient to ensure that the waiver of their Sixth Amendment right to counsel is knowing). Put differently, Miranda warnings put a defendant whose right to counsel has attached on notice not only of "a generalized right to counsel" but also of the "derivative right to the benefit of counsel's efforts to forestall involuntary and incriminating disclosures." See State v. Haynes, 288 Or 59, 71, 602 P2d 272 (1980) (identifying, in a related context, the information necessary for a knowing waiver of the Article I, section 12 right to counsel).

Beyond that, a defendant's decision to speak with an officer after being advised of his or her Miranda rights provides a basis for inferring that the defendant intentionally chose to relinquish those rights. See State v. Davidson, 252 Or 617, 620-21, 451 P2d 481 (1969) (holding that the trial court could infer an intentional relinquishment of a known right from the defendant's decision to speak with an officer after having been warned of his Miranda rights). Accordingly, we have upheld, against state (and federal) constitutional challenges, the admission of a defendant's statements when the defendant initiated the conversation about the charged crimes and the officer had advised the defendant of his Miranda rights before engaging in further conversation with the defendant about those crimes. See Randant, 341 Or at 73-74; Foster, 303 Or at 522, 530-31.

With those principles in mind, we turn to the facts of this case. As noted, there was no evidence at the suppression hearing that anyone had advised defendant of her Miranda rights at any point in this case. It is true, as the state notes, that the record discloses that the trial court had appointed counsel for defendant approximately two months before she met with Detectives Mogle and Johnson and that defendant had expressed a negative impression of her trial counsel during that meeting. And the state argues that the trial court could have inferred from those facts that defendant was aware that she had a right to counsel and that she chose not to exercise that right.

However, even if the court could have drawn those inferences, there is no basis in this record from which the trial court also could have inferred that defendant was aware that the statements she made to the officers could be used against her, that the officers were not necessarily acting in her interest when they asked about the sword, or that her counsel could have provided her with valuable assistance in navigating her way through the interview. There is, in short, no basis in this record from which the trial court could have inferred that defendant was aware of the benefit that she was giving up by speaking with the officers without her counsel present -- information that is also necessary for a knowing waiver of the right to counsel. See Haynes, 288 Or at 71 (requiring evidence that the defendant was aware not only of the right to counsel generally but also of the benefit of counsel's assistance in "forestall[ing] involuntary and incriminating disclosures").(5)

We need not decide in this case whether Miranda warnings are always required when a defendant whose Article I, section 11, right to counsel has attached initiates a discussion with officers about the charged crimes; that is, we need not decide whether a trial court could find, in the absence of Miranda warnings, that a defendant was aware of the right to counsel and the risks of foregoing counsel's assistance and intentionally chose to relinquish those rights. It is sufficient in this case to hold that, because this record does not disclose that defendant was aware of the risks of foregoing counsel's assistance, the state failed to prove that she knowingly waived her right to counsel. It follows that the trial court should have granted defendant's motion to suppress the evidence that resulted from the officers' questions about the robbery.

As noted, defendant entered a conditional guilty plea after the trial court denied her motion to suppress. Because defendant has finally prevailed on that motion, she may withdraw her plea on remand if she chooses to do so. See ORS 135.335(3) (providing that remedy for defendants who enter conditional guilty pleas and finally prevail on appeal); State v. Dinsmore, 342 Or 1, 6-8, 147 P3d 1146 (2006) (discussing the remedy when a defendant enters a conditional guilty plea as part of a larger plea agreement and prevails on appeal on the issue reserved in the plea).

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

1. We take the facts from the hearing on defendant's motion to suppress the evidence that the police obtained as a result of their conversation with her. We state the facts consistently with Mogle's testimony at that hearing, which the trial court "adopt[ed] * * * as findings [of fact] for the purpose of the [m]otion" to suppress.

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2. Defendant's plea petition incorporates by reference the terms of the "plea agreement." We note that the record contains an "offer of negotiation," which both the prosecutor and defense counsel signed. We also note that one of the terms in the offer (the offer does not bind the state if defendant appeals) appears to be at odds with one of the terms set out in the plea petition (a conditional guilty plea). It is unclear on this record whether the signed offer of negotiation is the plea agreement to which the plea petition refers, whether the parties modified the offer of negotiation, which became the plea agreement to which the plea petition refers, or whether the parties entered into a new plea agreement, which superseded the offer of negotiation. Although the exact terms of the parties' plea agreement may matter on remand, see State v. Dinsmore, 342 Or 1, 6-8, 147 P3d 1146 (2006), they do not affect our disposition of the issue that defendant has raised on review.

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3. Because we assume that defendant initiated the discussion of the Klamath Falls robbery, we do not consider whether Johnson's unwanted presence had any effect on the question of initiation.

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4. An officer need not go through the more extensive colloquy required when a defendant seeks to waive the right to counsel's assistance at trial. Randant, 341 Or at 73; cf. Meyrick, 313 Or at 133 (discussing procedures required before a defendant can waive the right to counsel at trial).

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5. The state noted in a memorandum of additional authorities that defendant had been arraigned and that, if she had appeared at arraignment without counsel, ORS 135.040 would have required the trial court to advise her that she had the right to counsel before being arraigned. Even if we assume that the trial court gave defendant that advice at arraignment, we do not see how that advances the state's argument. Defendant's arraignment occurred approximately two months before she met with Detectives Mogle and Johnson. Not only would any advice at arraignment have come long before defendant contacted Mogle, but ORS 135.040 only required the trial court to notify defendant that she had the right to counsel. It did not require the court to advise her of either the benefits of representation or the risks of going without counsel, which is the information missing here.

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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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