S058869 In re Lopez

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S058869 In re Lopez

State: Oregon

Docket No: none

Case Date: 04/07/2011

Filed: April 7, 2011

IN THE SUPREME COURT OF THE STATE OF OREGON

In re: the Reciprocal Discipline of

ANTHONY ROBERT LOPEZ, JR.,

Accused.

(OSB 10-64; SC S058869)

On review of the recommendation of the State Professional Responsibility Board, filed October 15, 2010.

Allison D. Rhodes, Hinshaw & Culbertson, LLP, Portland, filed a memorandum on behalf of the Accused.

Susan Roedl Cournoyer, Assistant Disciplinary Counsel, Tigard, filed a memorandum on behalf of the Oregon State Bar.

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

PER CURIAM

The accused is suspended from the practice of law for a period of nine months, commencing 60 days from the date of this decision.

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

PER CURIAM

This is a reciprocal discipline proceeding pursuant to Oregon State Bar Rule of Procedure (BR) 3.5. The accused is licensed to practice law in both California and Oregon.(1) While practicing law in California, he repeatedly violated that state's rules of professional conduct. The accused entered into a stipulation with the California State Bar and, based on that stipulation, the California Supreme Court suspended his license to practice law for one year. The court, however, stayed the suspension on the condition that the accused serve 90 days of the suspension and successfully complete a one-year probation.(2) Pursuant to BR 3.5(a), the Oregon State Bar notified this court that California had disciplined the accused. The Bar recommended that we impose the same sanction that the California Supreme Court did. For the reasons that follow, we suspend the accused's license to practice law in Oregon for nine months.

In a reciprocal discipline proceeding, the question whether to impose a sanction turns on two issues:

"(1) Was the procedure in the jurisdiction which disciplined the attorney lacking in notice or opportunity to be heard?

"(2) Should the attorney be disciplined by [this] court?"

BR 3.5(c). In this case, the accused concedes that the California disciplinary proceeding provided him with notice and an opportunity to be heard, and he does not dispute that this court should discipline him for his misconduct in California. Rather, he joins in the Bar's recommendation that Oregon's sanction should be coextensive with California's. In light of the accused's concessions, our sole task is to determine the appropriate sanction. We begin by summarizing the conduct that gave rise to this proceeding. We take the facts from the stipulation before the California Supreme Court.

The accused's misconduct spans seven client-related matters and one advertising matter. We summarize each matter:

The first matter. The accused represented a woman and her three minor children in a personal injury action. In the course of that representation, he settled the children's claims without obtaining court approval, as California law requires; he waited for over one year before distributing the proceeds of the settlement; and he deducted his fee and the children's medical expenses without first obtaining court approval, as California law also requires. Finally, the accused charged the woman a fee that exceeded local court guidelines.(3) The accused does not dispute that his conduct violated Oregon Rule of Professional Conduct (RPC) 1.15-1(d) (a lawyer must promptly deliver client funds), RPC 1.5 (a lawyer must not collect an illegal fee), and RPC 8.4(a)(4) (a lawyer must not engage in conduct that is prejudicial to the administration of justice).

The second matter. After settling a personal injury claim, the accused received the settlement proceeds and distributed a portion of those proceeds to his client. The accused included a disbursement sheet, accounting for the portion of settlement funds that he had deducted from the gross amount in order to pay certain fees and expenses. The sheet incorrectly represented that some of the client's medical expenses had been reduced, and it also failed to account for two liens that encumbered the settlement proceeds. The accused waited longer than one year to satisfy the two liens. The accused does not dispute that his conduct violated RPC 1.4(b) (a lawyer must explain a matter sufficiently to permit the client to make informed decisions) and RPC 1.15-1(d) (a lawyer must promptly deliver funds due to a third party).

The third matter. In the course of representing a third client, the accused failed to notify his client of the adverse party's written offers of settlement. Additionally, in that case, although the accused acknowledged the full amount due on a medical lien, he sent the lienholder a check for a quarter of the total amount; the check bore the stamp "[f]ull & [f]inal [s]atisfaction [p]ayment." The accused then delayed for over one year before fully satisfying that lien. The accused does not dispute that his conduct violated RPC 1.4(a) (a lawyer must keep a client reasonably informed about a matter), RPC 1.4(b) (a lawyer must explain a matter sufficiently to permit the client to make informed decisions), and RPC 1.15-1(d) (a lawyer must promptly deliver funds due to a third party).

The fourth matter. In another personal injury case, the accused settled the claims of three clients for less than their medical bills. Before distributing the settlement funds, the accused asked his clients' medical providers to reduce their bills. When they refused, the accused failed to negotiate further with the medical providers. Twenty-one months later, one of the accused's client's received a collection notice from one of the medical providers. The accused continued to delay after his client received the collection notice, waiting 10 more months before filing an interpleader action to resolve the various claims to the settlement proceeds. The accused does not dispute that his conduct violated RPC 1.1 (a lawyer must provide competent representation to a client).

The fifth and sixth matters. The fifth matter involved one client; the sixth, two clients. In both matters, the accused failed to explain adequately to his non-English-speaking clients how settlement funds would be disbursed and the amounts that each client would receive. The accused does not dispute that, with respect to both matters, he violated RPC 1.4(b) (a lawyer must explain a matter sufficiently to permit the client to make informed decisions).

The seventh matter. In the seventh matter, the accused settled a personal injury claim on behalf of a client and the client's three minor children. The accused settled two of the children's claims without obtaining court approval. When he received the settlement funds, the accused first deducted a quarter of the proceeds as a fee, contrary to a California law that requires a court order approving such a payment. The accused does not dispute that his conduct violated RPC 1.5 (a lawyer must not collect an illegal fee) and RPC 8.4(a)(4) (a lawyer must not engage in conduct that is prejudicial to the administration of justice).

The eighth matter. The eighth matter involves an advertisement that the accused aired in Nevada. The advertisement, translated from the Spanish, stated, "If you have had an auto accident, by law you have the right to receive at least $15,000 for your case. Call the offices of [the accused.]" The accused does not dispute that his advertisement created a misleading impression concerning the results that he could obtain and that the advertisement accordingly violated RPC 7.1(a)(2) (a lawyer must not make a communication about the lawyer's services that is intended or is reasonably likely to create a false or misleading expectation about the result that the lawyer can achieve).

Based on that misconduct, the California Supreme Court suspended the accused's license to practice law for one year, but it stayed imposition of that suspension subject to the accused's serving 90 days of actual suspension and successfully completing a year-long probation. In notifying this court of discipline in another jurisdiction, the Bar recommended, and the accused agreed, that we impose the same sanction that California had. Given the accused's record of prior discipline, which we discuss below, and the repeated instances of misconduct that gave rise to this proceeding, we asked the Bar and the accused to explain how the proposed sanction would protect Oregon clients and the public.

Both parties responded to our inquiry. The Bar admitted that its recommended sanction might not be sufficient. It suggested, however, that this court's prior practice in reciprocal discipline proceedings has been to impose the same sanction that the other jurisdiction did. The Bar also suggested that completion of the accused's California probation -- which included taking a legal ethics examination and completing courses in law practice management -- could have a rehabilitative effect that would protect the accused's Oregon clients and the public. For his part, the accused agreed with the Bar's observation that this court follows the sanction imposed in the other jurisdiction and also emphasized the rehabilitative value of his probation.

In reciprocal discipline cases, this court has an independent obligation to determine the sanction merited by a lawyer's violation of this state's professional rules. See In re Page, 326 Or 572, 577, 955 P2d 239 (1998) (this court's "choice of a sanction vindicates the judicial authority of this jurisdiction, not of the one in which the earlier discipline occurred," quoting In re Devers, 317 Or 261, 265, 855 P2d 617 (1993)). As a factual matter, this court frequently has found that the sanction that another jurisdiction has imposed is sufficient to vindicate Oregon's interests. We are, however, free to impose a different sanction, if appropriate, and on occasion have done so. See Page, 326 Or at 574 (Washington formally reprimanded the accused; this court suspended her for 30 days); Devers, 317 Or at 263 (Michigan suspended the accused for four months; this court suspended him for six months).

With the foregoing in mind, we turn to the determination of the appropriate sanction, which includes consideration of both the American Bar Association's Standards for Imposing Lawyer Sanctions (2005) (ABA Standards) and this court's cases. See Page, 326 Or at 577 (so noting). The ABA Standards direct courts to examine four factors in determining the appropriate sanction for a lawyer's professional misconduct: (1) the ethical duty violated, (2) the lawyer's mental state, (3) the actual or potential injury caused by the lawyer's misconduct, and (4) the existence of aggravating or mitigating circumstances. Page, 326 Or at 577; Devers, 317 Or at 267.

The accused violated the duties that he owed to his clients when he mishandled their property, failed to represent them competently, and failed to provide them with complete and accurate information. See ABA Standards 4.1, 4.5, 4.6 (noting duties owed to clients). The accused violated his duty as an officer of the court when he failed to obtain the court approval required by law to settle certain of his clients' claims and to deduct his fee from those settlement proceeds. See ABA Standard 6.2 (noting duty to obey the obligations imposed by a tribunal's rules). Finally, the accused violated his duty to the legal profession when he aired an illegal advertisement. See ABA Standard 7.0.

In the stipulation before the California Supreme Court, the accused admitted that each instance of his misconduct, except for one, was a "willful" violation of California law.(4) Under California law, "to establish a willful breach of the Rules of Professional Conduct, '[I]t must be demonstrated that the person charged acted or omitted to act purposely, that is, that he knew what he was doing or not doing and that he intended either to commit the act or to abstain from committing it.'" King v. State Bar of Cal., 801 P2d 419, 423 (1990) (alteration in original; quoting Zitny v. State Bar of Cal., 415 P2d 521, 524 (1966)). Under California law, a lawyer need not know that his or her conduct violates a specific ethical standard for it to be "willful." King, 801 P2d at 423. It is sufficient if the lawyer is aware of what he or she is doing and intends to do it. Id. As we read the California cases, the accused's stipulation that his conduct was "willful" means that, at a minimum, he acted knowingly under the ABA Standards. See ABA Standards at 13 (defining the mental state of "[k]nowledge" as the "conscious awareness of the nature or attendant circumstances of the conduct but without the conscious objective or purpose to accomplish a particular result"). Given the accused's stipulation, we find that the accused acted knowingly with respect to all but one of the charged instances of misconduct.

For the most part, the stipulation does not identify any concrete economic harm that the accused's clients suffered as a result of the accused's misconduct. Rather, the accused's failure to communicate adequately with his clients and his failure to pursue diligently the prosecution and resolution of their cases exposed his clients to potential economic injury. We note, however, that the accused's clients suffered actual injury in the first matter when they paid the accused an excessive fee, even though the accused ultimately mitigated that injury by refunding the excess. Compare In re Wyllie, 331 Or 606, 622, 19 P3d 338 (2001) (clients suffered an actual injury when their lawyer collected an excessive fee from them), with In re Knappenberger, 344 Or 559, 573-74, 186 P3d 272 (2008) (clients suffered potential injury when their lawyer charged but did not collect an excessive fee). Finally, this court has held that a lawyer's failure to communicate adequately with a client can be an ascertainable injury "measured in terms of time, anxiety, and aggravation" to the client. In re Koch, 345 Or 444, 456, 198 P3d 910 (2008).

Considering the nature of the accused's ethical violations, his mental state, and the injuries to which he exposed his clients, we conclude tentatively that a suspension is the proper sanction in this case for all but two of the instances of misconduct. See ABA Standard 4.12 (suspension is generally appropriate when a lawyer knowingly deals improperly with client property and causes injury or potential injury to a client); ABA Standard 6.22 (suspension is generally appropriate when a lawyer knowingly violates a court rule and causes potential injury); ABA Standard 7.2 (suspension is generally appropriate where a lawyer knowingly engages in conduct that violates a duty owed as a professional). The ABA Standards suggest that a reprimand generally would be appropriate for two instances of the accused's misconduct, if those instances of misconduct stood alone. See ABA Standards 4.5, 4.6.(5)

We also consider aggravating and mitigating factors to which the parties have stipulated or that the record otherwise supports. See Page, 326 Or at 579-80 (acknowledging stipulated factors and finding additional ones). Here, the parties stipulated that the accused's prior discipline was an aggravating factor. See ABA Standard 9.22(a) (prior misconduct is an aggravating factor). On that issue, the California Supreme Court previously had sanctioned the accused after he failed to maintain client funds in his trust account and failed to account properly for his client's funds. For that disciplinary violation, the accused received a one-year suspension, which was stayed in its entirety subject to the accused's successful completion of one year of probation.(6)

In addition, because the accused engaged in similar misconduct over the span of the seven client-related matters involved here, we also find the aggravating factors of multiple offenses, ABA Standard 9.22(d), and a pattern of misconduct, ABA Standard 9.22(c). Because the accused has been a member of the California Bar for over 20 years, his substantial experience in the practice of law is also an aggravating factor. See ABA Standard 9.22(i); In re Eakin, 334 Or 238, 258, 48 P3d 147 (2002) (finding substantial experience where the accused had been practicing for more than 20 years). Finally, we note that the accused's advertisement was aimed at non-English speaking clients -- a group that might be more dependent on their lawyer to protect their interests and thus more vulnerable to the sort of misconduct in which the accused has engaged. See ABA Standard 9.2(h) (identifying the vulnerability of the clients as an aggravating factor).

The parties did not stipulate to any mitigating factors. However, the imposition of sanctions in another jurisdiction for the same misconduct is a mitigating factor that is always present in a reciprocal discipline proceeding. See ABA Standard 9.32(k) (identifying "imposition of other penalties or sanctions" as a mitigating factor); Page, 326 Or at 579-80. Considering those factors, we note that not only has the accused engaged in repeated instances of multiple types of misconduct but also that his prior disciplinary sanction, which consisted of a one-year probation, does not appear to have deterred the accused's commission of other violations. Given the prior disciplinary sanction, we are not persuaded that either the 90-day actual suspension or the one-year probation that the California Supreme Court recently imposed will have as great a rehabilitative effect as the accused argues. Considering the aggravating and mitigating factors, we conclude tentatively that a longer period of actual suspension than the California Supreme Court imposed is appropriate.

In determining the appropriate sanction, we also consider this court's decisions in comparable cases. Taken individually, most instances of the accused's misconduct would merit a 30- to 60-day suspension. See In re Snyder, 348 Or 307, 323-24, 232 P3d 952 (2010) (suspending the accused for 30 days where he failed, in a single-client matter, to communicate adequately and pay client funds promptly); In re Knappenberger, 337 Or 15, 32-33, 90 P3d 614 (2004) (suspending the accused for a total of 90 days and noting that the lawyer's neglect of a single client's legal matter merited a 60-day suspension where the aggravating factors outweighed the mitigating factors); Eakin, 334 Or at 259 (suspending the accused for 60 days where she mishandled one client's property).

Longer periods of suspension are appropriate where the number of violations and the number of clients potentially harmed increase. In Devers, this court imposed a six-month suspension for multiple instances of misconduct spanning three client-related matters. 317 Or at 267-68. The lawyer in Devers had a more extensive history of prior disciplinary action, although the prior misconduct had merited less onerous sanctions. See id. at 263-64 (noting that Devers' disciplinary history consisted of two prior reprimands and one prior admonishment). Additionally, the misconduct in Devers resulted in economic harm to some of the clients. See id. at 266 (lawyer had collected a clearly excessive fee). By contrast, the accused has had only one prior disciplinary violation, and the accused refunded the excessive fee that he collected and thus mitigated the harm that he caused by collecting the fee. The accused, however, violated the Rules of Professional Conduct in handling seven client matters, as opposed to three in Devers, and in engaging in misleading advertising.

Not only has the accused's misconduct spanned seven client matters, but, in handling some of those matters, the accused committed multiple ethical violations. For example, in one matter, the accused failed to communicate settlement offers to his client, and, once the case settled, delayed for a year in disbursing the settlement proceeds. In another matter, the accused settled the case and deducted his fee without court approval, as California law requires, and he charged an excessive fee that he later had to refund. The other five matters were variations on the two matters noted.

Considering the multiple instances of misconduct in which the accused has engaged over a span of seven clients, his prior disciplinary sanction, and the fact that the accused acted knowingly when he committed almost all the instances of misconduct, we suspend the accused from the practice of law in Oregon for a period of nine months. Unlike California, we do not stay any part of that period of suspension.

The accused is suspended from the practice of law for a period of nine months, commencing 60 days from the date of this decision.

1. It appears from the record that, at least at some point, the accused also has been licensed to practice law in Arizona and Nevada.

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2. The parties inform us that the accused has successfully completed his one-year probation.

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3. The accused eventually refunded the fee to the extent that it exceeded the guidelines.

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4. The accused did not stipulate that he willfully violated California law in handling the second matter discussed above -- viz., when he incorrectly represented on a disbursement sheet that some of his client's medical expenses had been reduced and, on that same disbursement sheet, failed to account for two liens that encumbered his client's settlement proceeds.

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5. Under ABA Standard 4.5, the propriety of a suspension or reprimand turns on whether the lawyer knowingly or negligently engaged in an area of practice in which he or she was not competent. In this case, the accused's incompetence did not extend to an area of practice; rather, he knowingly failed to file an interpleader action in a timely manner -- something that he does not dispute a competent attorney would have done. In a similar vein, ABA Standard 4.6 suggests suspending a lawyer's license where the lawyer "knowingly deceives" a client, but suggests that a reprimand is appropriate where the lawyer "negligently fails to provide a client with accurate or complete information * * *." Here, the accused knowingly failed to communicate adequately with some of his clients, but nothing suggests that he purposefully sought to deceive them. Although neither standard provides a perfect match to the accused's conduct, they suggest that a reprimand would be appropriate if those were the accused's only violations.

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6. The accused's prior misconduct occurred in Arizona. California imposed reciprocal discipline for that misconduct. The record does not reveal what discipline the Arizona disciplinary authority had imposed.

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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
2

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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