S43286 In re Meyer (I)

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State: Oregon

Docket No: none

Case Date: 01/22/1999

Filed: January 22, 1999

IN THE SUPREME COURT OF THE STATE OF OREGON

In re:

Complaint as to the Conduct of

JOHN G. MEYER,

Accused.

(OSB 94-196; SC S43286)

On review of the decision of a trial panel of the Disciplinary Board.

Argued and submitted January 16, 1997.

Mary A. Cooper, Assistant Disciplinary Counsel, Oregon State Bar, Lake Oswego, argued the cause and filed a brief on behalf of the Oregon State Bar.

John G. Meyer, Astoria, pro se, argued the cause and filed a brief on behalf of the accused.

Before Carson, Chief Justice, and Gillette, Van Hoomissen, Durham, and Kulongoski, Justices.*

PER CURIAM

The accused is suspended from the practice of law for a period of 90 days, commencing 60 days from the date of this decision.

* Fadeley, J., retired January 31, 1998, and did not participate in this decision; Graber, J., resigned March 31, 1998, and did not participate in this decision.

PER CURIAM

This is a lawyer disciplinary proceeding. The Oregon State Bar (Bar) charged the accused with violating the Code of Professional Responsibility DR 1-102(A)(4) (engaging in conduct prejudicial to the administration of justice) and DR 7-106(C)(6) (engaging in undignified or discourteous conduct degrading to a tribunal). A trial panel found that the accused violated both those rules and imposed a 90-day suspension. The Bar sought review. Bar Rules of Procedure (BR) 10.1. This court has jurisdiction pursuant to ORS 9.536(1), BR 10.1, and BR 10.3. We review de novo. ORS 9.536(3); BR 10.6. The Bar has the burden of proving misconduct by clear and convincing evidence. ORS 9.536(2); BR 5.2.

On review, the accused argues that his conduct violated neither of the charged rules. Alternatively, he argues that a 90-day suspension is excessive and therefore inappropriate. Additionally, the accused argues that DR 1-102(A)(4) is unconstitutionally vague and therefore void, and that no sanction can be imposed for violation of that rule.

For the reasons that follow, we conclude that the accused violated DR 1-102(A)(4) and DR 7-106(C)(6). We further conclude that DR 1-102(A)(4) is not unconstitutionally vague. Finally, we conclude that the 90-day suspension imposed by the trial panel is appropriate.

We make the following findings of fact. The accused

was admitted to the practice of law in Oregon in 1967. On May 9, 1994, he appeared at a Driver and Motor Vehicles Division (DMV) hearing on behalf of a client. At issue was whether the client's driver license should be suspended.

The accused admits that he had several drinks before appearing at the DMV hearing. The other persons present -- DMV Hearings Officer Karlene Mills and State Trooper James Pierce -- testified that the accused smelled of alcohol, acted silly and giggly, made nonsensical remarks, had red, glazed eyes, seemed to have trouble keeping his balance, and threw documents into the air for no apparent reason. Based on the accused's admission and his behavior, we find that the accused appeared on behalf of his client at the DMV hearing while under the influence of intoxicants.

Because of the accused's condition and behavior at the DMV hearing, Hearings Officer Mills became convinced that the accused was in no condition to represent his client. She therefore terminated the hearing and rescheduled it for a later date.

The Bar charged the accused with violations of DR 1-102(A)(4) and DR 7-106(C)(6), based on his conduct at the DMV hearing. The trial panel found that the accused violated both those disciplinary rules.

DR 1-102(A) provides, in part:

"It is professional misconduct for a lawyer to:

"* * * * *

"(4) Engage in conduct that is prejudicial to the administration of justice."

DR 1-102(A)(4) is violated by a single act that is substantially harmful to the administration of justice. In re Haws, 310 Or 741, 748, 801 P2d 818 (1990). Harm to the administration of justice can occur when either the substantive rights of a party to the proceeding or the procedural functioning of a case or hearing is impaired. Id. at 747. Potential harm to the administration of justice is sufficient to trigger application of DR 1-102(A)(4); the Bar need not prove actual harm. In re Rex Q. Smith, 316 Or 55, 59-60, 848 P2d 612 (1993).

The Bar argues that, by appearing at the DMV hearing on behalf of his client while under the influence of intoxicants, the accused committed a single act that was substantially harmful to the administration of justice. We agree. The accused prejudiced the procedural functioning of the DMV hearing process, causing the hearings officer to reschedule the hearing. See In re Wyllie, 326 Or 447, 453-54, 952 P2d 550 (1997) (lawyer's repeated appearances in court while under the influence of alcohol each violated DR 1-102(A)(4)). We find the accused guilty of violating DR 1-102(A)(4).

We reject the accused's contention that DR 1-102(A)(4) is unconstitutionally vague. This court has held that the terms of DR 1-102(A)(4) are sufficiently definite to withstand a claim of constitutional vagueness. Haws, 310 Or at 746; In re Rook, 276 Or 695, 705, 556 P2d 1351 (1976) (interpreting former DR 1-102(A)(5)). The accused does not claim that those authorities are distinguishable, nor does he assert that they were not correctly decided.

DR 7-106(C) provides, in part:

"In appearing in the lawyer's professional capacity before a tribunal, a lawyer shall not:

"* * * * *

"(6) Engage in undignified or discourteous conduct which is degrading to a tribunal."

DR 10-101(H) defines "tribunal" as "all courts and other adjudicatory bodies." The DMV hearing was a tribunal, because the hearings officer had authority to adjudicate the charges against the accused's client. She could dismiss those charges, or she could suspend the client's driving privileges for up to three years. The hearings officer also is required to make findings of fact and conclusions of law and to develop the factual record on which any appeal would be based. See generally ORS 809.440 (setting out DMV hearing and administrative review procedures).

The accused concedes that his conduct was undignified and discourteous. He denies, however, that his conduct was degrading to the tribunal. We disagree. To "degrade" means to "bring to low esteem or disrepute." Webster's Third New Int'l Dictionary, 594 (unabridged ed 1993). The accused's behavior demonstrated a profound disrespect for the tribunal and for the hearings officer, and tended to lower the esteem in which that tribunal is held. See, e.g., Disciplinary Counsel v. Donnell, 79 Ohio St 3d 501, 684 NE2d 36, 37-38 (1997) (lawyer who "constantly argued with and interrupted the judge and showed little or no respect for witnesses" violated analogous Ohio disciplinary rule by engaging in conduct discourteous or degrading to tribunal); Matter of Goude, 296 SC 510, 374 SE2d 496, 496 (1988) (lawyer's insulting remarks during sentencing hearing violated analogous South Carolina disciplinary rule). We find that the accused violated DR 7-106(C)(6).

Sanction

Because we find that the accused violated DR 1-102(A)(4) and DR 7-106(C)(6), it is necessary to impose an appropriate sanction. This court refers to the American Bar Association's Standards for Imposing Lawyer Sanctions (1991) (amended 1992) (ABA Standards) for guidance in determining the appropriate sanction for lawyer misconduct. In re Schaffner, 323 Or 472, 918 P2d 803 (1996). We agree with the statement in the ABA Standards that:

"The purpose of lawyer discipline proceedings is to protect the public and the administration of justice from lawyers who have not discharged, will not discharge, or are unlikely to discharge their professional duties to clients, the public, the legal system, and the legal profession." ABA Standard 1.1.

In In re Carstens, 297 Or 155, 166, 683 P2d 992 (1984), this court stated:

"Proceedings for the discipline of an attorney are not to punish the attorney for the commission of a crime. That matter is left to the criminal courts. The objects of the proceedings here are to uphold the dignity and respect of the profession, protect the courts, preserve the administration of justice and protect clients."

The ABA Standards establish an analytical framework for determining the appropriate sanction in lawyer disciplinary cases, using three factors: (1) the duty violated; (2) the accused lawyer's mental state; and (3) the actual or potential injury caused by the accused lawyer's misconduct. ABA Standard 3.0. This court examines each of those factors and makes an initial determination of the appropriate sanction. See ABA Standards at 5-6 (explaining analytical framework and its application). If mitigating or aggravating circumstances are present, the court considers those as a fourth factor and determines whether the sanction should be adjusted (i.e., increased or decreased). Id. at 6; ABA Standard 3.0. In determining the correct sanction, the court also examines the conduct of the accused in light of the court's prior case law. In re Garvey, 325 Or 34, 44, 932 P2d 549 (1997).

The accused violated his duty to avoid conduct that reflects adversely on the lawyer's fitness to practice law. ABA Standard 5.14. The accused also violated his duty to the legal system to avoid conduct which creates interference or potential interference with a legal proceeding. ABA Standard 6.22. We conclude that the accused acted "knowingly," defined as a conscious awareness of the nature or attendant circumstances of the conduct, but without a conscious objective or purpose to accomplish a particular result. ABA Standards at 7. In this case, the accused's behavior caused actual injury: the DMV hearings officer was forced to reschedule the hearing, and the state's witness was required to make himself available a second time.

ABA Standards 5.14 and 6.22, respectively, provide:

"Admonition is generally appropriate when a lawyer engages in * * * conduct that reflects adversely on the lawyer's fitness to practice law."

"Suspension is generally appropriate when a lawyer knows that he or she is violating a court order or rule, and causes injury or potential injury to a client or a party, or causes interference or potential interference with a legal proceeding."

Drawing together the factors of duty violated, the accused's mental state, and the actual injury caused, we conclude, initially, that suspension is an appropriate sanction in this case. We now turn to examination of aggravating and mitigating circumstances.

Several aggravating factors are present here. First, the accused has committed a prior disciplinary offense. ABA Standard 9.22(a). The "prior offenses" aggravating factor "refers to offenses that have been adjudicated prior to imposition of the sanction in the current case." In re Jones, 326 Or 195, 200, 951 P2d 149 (1997). When applying that factor to a particular case, the following considerations, at a minimum, play an important role in the court's analysis: (1) the relative seriousness of the prior offense and resulting sanction; (2) the similarity of the prior offense to the offense in the case at bar; (3) the number of prior offenses; (4) the relative recency of the prior offense; and (5) the timing of the current offense in relation to the prior offense and resulting sanction, specifically, whether the accused lawyer had been sanctioned for the prior offense before engaging in the offense in the case at bar. Id. These considerations can heighten or diminish the significance of the earlier misconduct. Id.

In 1990, the accused was publicly reprimanded for neglecting a legal matter and improperly withdrawing from representation of a client. That public reprimand was imposed before the accused engaged in the misconduct at issue here. That 1990 reprimand demonstrates that the accused had "both warning and knowledge of the disciplinary process." In re Hereford, 306 Or 69, 75, 756 P2d 30 (1988) (internal quotation marks omitted).

This case presents additional aggravating factors. The accused refused to acknowledge the wrongful nature of his conduct, ABA Standard 9.22(g), and the accused has substantial experience in the practice of law, ABA Standard 9.22(i).

The accused presents no mitigating factors, and we find none. We now turn to consideration of this court's prior case law.

There are two cases that are closely analogous to this one. The most recent is In re Wyllie. In that case, the accused lawyer appeared in court while intoxicated on several occasions. On two of those occasions, the accused's intoxicated state resulted in delay of the proceedings. 326 Or at 453. For that conduct, and for violating DR 1-103(F) (failure to cooperate with remedial program), the accused was suspended for one year. Id. at 456. In In re Dan Dibble, 257 Or 120, 121-23, 478 P2d 384 (1970), the accused lawyer appeared in court while intoxicated on several occasions. The court found that that misconduct tended to bring the legal profession and the administration of justice into disrepute, and suspended the accused for one year. Id. at 124, 126. We note that the accused in this case did not make multiple appearances before a tribunal while under the influence of intoxicants. This case is therefore distinguishable from both Wyllie and Dibble.

Taking all the relevant factors into consideration, we conclude that a 90-day suspension is appropriate.

The accused is suspended from the practice of law for a period of 90 days, commencing 60 days from the date of this decision.

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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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