S43713 In re Blaylock

SUPREME COURT CASES

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State: Oregon

Docket No: OSB94-91

Case Date: 04/15/1999

Filed: April 15, 1999

IN THE SUPREME COURT OF THE STATE OF OREGON

In Re:

Complaint as to the Conduct of PAUL BLAYLOCK,

Accused.

(OSB 94-91; SC S43713)

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

Argued and submitted November 3, 1997.

Paul Blaylock, Portland, argued the cause and filed the briefs in propria persona.

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

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

PER CURIAM

Complaint dismissed.

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

PER CURIAM

In this lawyer disciplinary proceeding, the Oregon State Bar (Bar) charged the accused with violating Code of Professional Responsibility Disciplinary Rule (DR) 2-104(A) (permitting lawyer to initiate personal contact with prospective client for purposes of obtaining professional employment only under specified circumstances). A trial panel of the Disciplinary Board found that the accused had violated DR 2-104(A) and determined that he should receive a public reprimand. The accused sought review. ORS 9.536(1); Bar Rules of Procedure (BR) 10.1 and 10.3. Our review is de novo. ORS 9.536(3); BR 10.6. The Bar has the burden of proving misconduct by clear and convincing evidence. BR 5.2. Evidence is clear and convincing when "the truth of the facts asserted is highly probable." In re Claussen, 322 Or 466, 468, 909 P2d 862 (1996).

On de novo review, we conclude that the Bar has failed to prove by clear and convincing evidence that the accused violated DR 2-104(A). Accordingly, we dismiss the Bar's complaint.

The Bar has proved the following facts by clear and convincing evidence. The accused is both a lawyer admitted to practice law in Oregon and a physician licensed to practice medicine in Oregon and Washington. He had been practicing emergency medicine with privileges at various area hospitals since 1975 and had been practicing law with a Portland firm since 1984. The accused's law practice consisted primarily of defending asbestos claims and representing medical and health professionals.

With respect to the dual nature of the accused's professional life, the trial panel made the following findings of fact, which we adopt:

"During the accused's ten years of practice he has accepted approximately 23 cases involving personal injury claims from motor vehicle accidents. Most of those claims were referred to him by personal friends. The balance of cases were referred to him by other members of [his] firm. The accused has never represented any of his medical patients in his dual capacity as a lawyer. The accused has treated thousands of persons injured in automobile accidents, has extensive personal contact with nurses, EMTs, police, ambulance drivers and other doctors who come into contact with accident victims, all of whom are in a position to refer personal injury accident claims to the accused. Despite opportunities to do so, the accused has never solicited cases from those accident victims, has not requested or sought to represent personal injury clients with whom he has been in contact in a hospital setting, and has not received referrals for personal injury cases from persons at any hospital where he practices medicine. When the accused did receive a referral of a personal injury claim that [his firm] was willing to accept on a contingent fee basis, the accused usually referred the matter to another attorney in the firm to work up the case. In an effort to review the profitability of contingent fee work, the firm determined that none of the cases brought into the firm by the accused involved patients at hospitals where the accused also practiced medicine."

We take the following additional facts from the record. On June 23, 1991, Sam Nelson was involved in a three-vehicle automobile accident that killed one of his sisters and injured another. Nelson was seriously injured in the crash and was taken by ambulance to Southwest Washington Medical Center. Within several hours of the collision, Nelson's parents learned of the accident and went to the hospital. Ultimately, they were joined there by other family members and friends, including Nelson's wife.

Testimony before the trial panel concerning the timing and details of the events that occurred at the hospital conflicted in several respects. The trial panel concluded that "[r]esolution of these conflicts on the basis of credibility was unnecessary to a determination of the essential and material facts * * *." We agree. For purposes of our analysis, there is one central, undisputed set of facts: While the Nelson family was at the hospital awaiting news of Nelson's condition, the accused, who at that time was working a shift in the hospital's emergency room, approached the Nelson family, identified himself as a lawyer, gave them his business card, and informed them that they could contact him if they needed legal advice.

Concerning the specific circumstances of that contact, we adopt the trial panel's findings of fact:

"On June 24, 1991, the accused received a telephone call from a woman who he believed was a nurse at the ICU * * *. The presumed nurse explained that there was a man in the ICU who was seriously injured in an accident and was concerned about how he was going to feed his children. He was not told of the facts of the motor vehicle accident. She asked the accused if he would mind speaking with the family about their legal situation. The accused did not question the nurse about her sources of information or ask whether the family wanted her to contact an attorney on their behalf. He did not ask the person to have the family first contact him. He simply responded to the request from a person whom he believed was a nurse acting as a good samaritan. This person was not known to the accused. The accused was not familiar with the names of nurses outside the emergency room. Neither the accused nor the Bar were unable [sic] to locate any ICU nurse or other person that actually made this telephone call to the accused.

"However at no time did any member of the Nelson family, including Sam Nelson, [Nelson's surviving sister] or [Nelson's wife] ask a nurse or other person to contact a lawyer on their behalf. At no time during June 23 or June 24, 1991 did they have any facts or information to indicate that a lawyer was being contacted on their behalf. If they needed to immediately contact a lawyer, they already knew [another] attorney * * *. The person who contacted the accused, if indeed a nurse, was acting without the knowledge or consent of any members of the Nelson family."

Before this court, the Bar does not contest the accused's assertion that, in approaching the Nelson family, he was responding to a telephone call from a presumed nurse. The accused explained his purpose in doing so in the following testimony, which we credit:

"You have to understand, I'm still working downstairs [when the accused met with the Nelson family], I'm still on duty, so I only had a moment. I went up there [to the ICU where the Nelson family was waiting] to do -- I went up there to do three things. I went up there to respond to what I thought was an invitation. And I left a busy emergency department and I only had a few moments. I went up there to respond to what I thought was an invitation by a family in need. I gave them my business card and told them that I couldn't talk to them regarding legal advice at the time, but if they wished to call me that this is how they could reach me."

We adopt as well the following additional findings of the trial panel:

"At first the Nelson family thought that the accused was Sam's doctor. They had not yet heard about Sam's condition and the accused was dressed in medical scrubs. When the accused contacted the Nelson family he was wearing emergency room garb consisting of a scrub suit, goggles, jacket and ID badge. Because of the accused's attire some members of the Nelson family mistook the accused as Sam Nelson's surgeon.

"When the accused went to the waiting room outside the ICU, he introduced himself as 'Dr. Blaylock.' He told the family that he was also a lawyer and that he had been asked to come up to speak with them. All persons present in the waiting room agreed that the accused gave the Nelson family his business card from his law practice and informed them that they * * * could contact him if they needed to do so for legal advice. Several members of the Nelson family were affronted that a lawyer had approached them in the waiting room about representing them, but said little to the accused. Others were impressed that a professional was dually qualified as a doctor and a lawyer. The accused's card was handed to and taken by a member of the family." (Footnote omitted.)

Several days later, as a result of the personal contact, a family friend met with the accused at the accused's law office to discuss the accident and Nelson's legal situation. Ultimately, Nelson, his wife, and his sister each decided to retain the accused to represent them concerning the accident. In early 1994, the claims were settled. Nelson, however, was dissatisfied with the amount of the settlement and, on March 21, 1994, complained to the Bar about the accused's conduct at the hospital. The Bar filed a formal complaint that led to the present proceedings.

Before the trial panel, the accused denied that he had violated DR 2-104(A). He also argued that DR 2-104(A) violates Article I, section 8, of the Oregon Constitution and the First Amendment to the United States Constitution.(1) As noted, the trial panel concluded that the accused violated DR 2-104(A) and also rejected the accused's constitutional challenges.(2)

At the time of the accused's alleged misconduct, DR 2-104 provided:

"(A) Subject to the provisions of DR 2-101 [which are inapplicable here], a lawyer may initiate personal contact with a prospective client for the purpose of obtaining professional employment only in the following circumstances:

"(1) If the prospective client is a close friend, relative, former client, or one whom the lawyer reasonably believes to be a client;

"(2) Under the auspices of a public or charitable legal services organization; or

"(3) Under the auspices of a bona fide political, social, civic, fraternal, employee, or trade organization whose purposes include but are not limited to providing or recommending legal services, if the legal services are related to the principal purposes of the organization.

"(B) For the purpose of DR 2-104, 'personal contact' means in-person or telephone contact with an individual or entity. Direct mail advertising is not considered 'personal contact' under this rule, but is otherwise subject to the requirements of DR 2-101."(3)

None of the circumstances set out in paragraphs (1) through (3) above is present in this case. Accordingly, our task is to determine whether the accused violated the prohibition in DR 2-104 by "initiating" personal contact with a prospective client for the purpose of obtaining professional employment.(4)

DR 2-104 does not provide a specific definition of the key term, "initiate," in that rule. The dictionary definition of that term is:

"to begin or get going: make a beginning of: perform or facilitate the first actions, steps, or stages of * * * to bring about the initial formation of: ORIGINATE * * *." Webster's Third New Int'l Dictionary, 1164 (unabridged ed 1993).

The definition of the term "initiate" and the nature of the prohibition embodied in DR 2-104 indicate that a lawyer must act intentionally to violate that rule. To act with an intentional state of mind, an accused must act "with the conscious objective or purpose to accomplish a particular result." See In re Allen, 326 Or 107, 122, 949 P2d 710 (1997) (applying that definition of the state of mind of "intent"). See also American Bar Association's Standards for Imposing lawyer Sanctions (1991) (amended 1992) (same). In the context of DR 2-104(A), the Bar must prove by clear and convincing evidence that the accused acted with the conscious objective or purpose to "initiate" personal contact with a prospective client in order to obtain professional employment.

As noted, the Bar does not contest the accused's assertion that he was responding to a nurse's telephone call, which we have described above. The Bar also does not contest the trial panel's finding that the accused acted with a subjective good faith belief that he was responding to a family invitation conveyed through the nurse. The Bar argues, however, that the intervention here of an intermediary -- the nurse -- between the accused and the prospective client imposed on the accused, at a minimum, the duty to direct a series of clarifying questions to the nurse to ensure that the Nelson family actually desired contact with the accused. We acknowledge that asking questions to clarify the prospective client's state of mind in these circumstances reflects prudent practice. However, we can find no support for compelling that prudent practice as an ethical requirement under DR 2-104(A).

The appropriate focus in this case is the intentional state of mind that the Bar must prove to prevail when charging a violation of DR 2-104. In that regard, we conclude that the Bar's case falls short. As we have found above, the accused responded to what he believed in good faith was a family invitation, conveyed through someone that he believed was a nurse, for contact with him. It follows from that finding that the Bar has not proved by clear and convincing evidence that the accused intended to originate the client contact himself. Accordingly, we hold that the accused did not violate DR 2-104.

Complaint dismissed.

1. Article I, section 8, of the Oregon Constitution provides:

"No law shall be passed restraining the free expression of opinion, or restricting the right to speak, write, or print freely on any subject whatever; but every person shall be responsible for the abuse of this right."

The First Amendment to the United States Constitution provides in part:

"Congress shall make no law * * * abridging the freedom of speech * * *."

Return to previous location.

2. Because we conclude that the accused did not violate DR 2-104(A), we need not address the accused's constitutional arguments.

Return to previous location.

3. The court adopted amendments to DR 2-104(B) in 1998. Supreme Court Order No. 98-104 (November 5, 1998). Those amendments are inapplicable here.

Return to previous location.

4. This court has not construed DR 2-104(A) to date. In In re Baer, 298 Or 29, 35, 688 P2d 1324 (1984), the court summarily held that the Bar had not proved by clear and convincing evidence that the accused lawyer had violated an earlier version of DR 2-104(A).

Return to previous location.

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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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