S43732 Coulter Property Management, Inc. v. James

SUPREME COURT CASES

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State: Oregon

Docket No: CC9305-02944

Case Date: 12/17/1998

Filed: December 17, 1998

IN THE SUPREME COURT OF THE STATE OF OREGON

COULTER PROPERTY MANAGEMENT, INC.,

Respondent on Review,

SAMUEL JAMES,

Petitioner on Review.

(CC 9305-02944; CA A85455; SC S43732)

On review from the Court of Appeals.*

Argued and submitted September 10, 1997.

Jeffrey C. Jacobs, Portland, argued the cause and filed the briefs for petitioner on review.

Ralph C. Spooner, of Spooner & Much, P.C., Salem, argued the cause for respondent on review. With him on the briefs was Mary Kim Wood.

Annette E. Talbott, Portland, filed briefs on behalf of amicus curiae Oregon Trial Lawyers' Association.

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

VAN HOOMISSEN, J.

The decision of the Court of Appeals is reversed, and the case is remanded to that court to consider petitioner's cross-appeal.

*Appeal from Multnomah County Circuit Court,

Lee Johnson, Judge.

138 Or App 568, 910 P2d 397 (1996).

**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.

VAN HOOMISSEN, J.

This is a landlord-tenant personal injury action. We address two questions on review: First, do the habitability requirements of the 1991 version of the Oregon Residential Landlord and Tenant Act (RLTA), ORS 90.100 et seq. (1991) require that a tenant prove that the landlord knew or should have known of an alleged habitability violation? Both the circuit court and the Court of Appeals concluded that the 1991 RLTA requires proof of actual or constructive knowledge. Coulter Property Management, Inc. v. James, 138 Or App 568, 910 P2d 397 (1996). However, we recently reached the opposite conclusion in Davis v. Campbell, 327 Or 584, 965 P2d 1017 (1998). Accordingly, we reverse that part of the Court of Appeals' decision without further discussion.

The second question is whether the principles set out in section 358 of the Restatement (Second) of Torts (1965), should continue to govern a landlord's common-law liability to a tenant. The circuit court chose not to apply section 358 and, instead, applied a general foreseeability standard. The Court of Appeals reversed, concluding that section 358 is the appropriate source of law. Coulter Property Management, 138 Or App at 573-74. As discussed below, we disagree with that conclusion as well. Accordingly, we reverse the decision of the Court of Appeals and remand the case to that court to consider tenant's cross-appeal.

The following facts are undisputed. Samuel James (tenant) leased a unit in the Mitchell Court Apartments in Portland beginning in July 1992. Coulter Property Management, Inc. (landlord) had been managing those apartments since January 1992. In February 1993, tenant was injured when he and two guests fell from the unit's second-story balcony after the balcony's railing came loose. Neither tenant nor landlord knew that the railing, which had been inspected on various earlier occasions, presented a safety hazard. After the incident, tenant failed to pay rent when due, and landlord brought a forcible entry and detainer action.

In response, tenant filed counterclaims against landlord including a common-law negligence claim and a statutory claim for damages under the RLTA. The thrust of tenant's negligence claim was that landlord had failed to inspect the railing or properly maintain it. In defense, landlord argued that it had no notice of any defect in the railing and that tenant had been engaging in horseplay with his guests on the balcony and was intoxicated when the accident occurred.

Before trial, landlord dismissed its forcible entry and detainer claim. Proceedings before the jury, therefore, involved only tenant's counterclaims. At the close of tenant's case, landlord moved for a directed verdict against the RLTA claim. The circuit court allowed that motion, but permitted tenant to amend his common-law negligence counterclaim to include the alleged RLTA habitability violations as specifications of landlord's negligence. As a result of those and other motions and stipulations concerning tenant's claims, the circuit court submitted to the jury only tenant's negligence claim, augmented by the RLTA-based specifications of negligence.

A disagreement arose as to the proper standard of care that a landlord owes a tenant under the common law. Landlord argued that section 358 of the Restatement provides the appropriate standard. Based on that argument, landlord proffered two instructions, which provided in part:

"Under Oregon law, Coulter Property Management, as the managers of the apartment complex where Mr. James lived, may by liable to Mr. James under this claim of negligence only if all of the following conditions are proven:

"1. First, the condition that Mr. James is complaining of, that is the deck and railing, must involve an unreasonable risk of physical harm to the tenant;

"2. Second, Mr. James, as a tenant, must not know or have reason to know of the condition or the risk involved;

"3. Third, Coulter Property Management, as managers of the apartment complex, must know of or have reason to know of the condition and realize or should realize the risk involved; and

"4. Fourth, the apartment manager must have reason to expect that the tenant will not discover the condition or realize the risk.

"Under a common law claim for negligence, a property manager does not have a duty to inspect the tenant's apartment for dangerous conditions. In order for a property manager to be liable for concealing or failing to disclose an unreasonably dangerous condition, it is not enough that the dangerous condition is one which might be discovered by a reasonable inspection of the premises. * * *"(1)

The circuit court rejected landlord's proposed instructions and instead gave a general instruction on negligence as follows:

"In general, it is the duty of everyone in our society to use reasonable care to avoid injury to themselves and to others. Reasonable care is that care which persons of reasonable prudence exercise in the conduct of their own affairs.

"Negligence is the doing of some act which a reasonably prudent person would not do or the failure to do something which a reasonably prudent person would do under similar or -- under the same or similar circumstances to avoid injury. The care should be in keeping with that required at the time and circumstances of the incident in question, not in the light of hindsight."

The jury found for tenant, awarding him $32,892.60 in economic damages and $333,000.00 in noneconomic damages. Landlord appealed from the judgment entered on the jury's verdict and from a supplemental judgment awarding tenant attorney fees under the RLTA and costs. Tenant cross-appealed from the supplemental judgment, challenging the sufficiency of the trial court's award of attorney fees.

The Court of Appeals reversed and remanded, concluding that the circuit court erred by failing to instruct the jury based on the Restatement:

"In sum, the trial court erred in giving a standard negligence instruction instead of landlord's special instruction * * * which was based on section 358 of the Restatement. The pertinent question in this case is whether landlord had 'reason to know' about the allegedly dangerous condition of the balcony railing, specifically, whether landlord's annual inspections were negligently performed and as a result failed to uncover existing defects. However, because of the manner in which the court instructed the jury, that question was neither asked nor answered." Coulter Property Management, 138 Or App at 574.

The Court of Appeals also concluded that, although the circuit court properly had struck tenant's RLTA claim, because landlord had no notice of the railing's defect, the trial court erred "when it allowed that same claim to go forward under a different label," i.e., negligence per se. Id. at 574-75. As noted, the premise underlying that ruling was incorrect. The Court of Appeals also held that the circuit court erred by refusing landlord's request to poll the jury as to each question on the special verdict form, rather than as to only the broader question whether each juror agreed with the verdict. Id. at 575.(2) Finally, because the Court of Appeals earlier had determined that tenant "had no legal basis for a claim under the RLTA," the court refused to consider tenant's cross-appeal regarding attorney fees. Ibid.

On review, tenant makes three arguments concerning the Restatement's continuing applicability. First, he argues that, by framing the "pertinent question" to be whether landlord should have known about the defect, 138 Or App at 574, the Court of Appeals failed to capture the total import of section 358 and landlord's proposed instructions. Tenant is correct. Applying section 358 and using landlord's instructions would have required tenant to prove, among other things, that landlord knew or should have known of the defective railing and that tenant himself neither knew nor should have known about the defect. The Court of Appeals' analysis, therefore, was incomplete. Agreeing with tenant on this point, however, does not advance meaningfully our effort to answer the question on review, namely, should the court continue to follow the approach of section 358 in landlord-tenant cases?

Tenant next argues that we should disavow the Restatement as a statement of the common law in Oregon, because the standard that the Restatement espouses is inconsistent with the habitability provisions of the RLTA, which the legislature enacted after the court adopted section 358. With respect to the interplay between the RLTA and existing common law, this court stated in Davis:

"Given the lack of contrary legislative intent, a tenant may choose to maintain claims of common-law negligence and statutory liability against a landlord in the same action." 327 Or at 592 (citing Bellikka v. Green, 306 Or 630, 638, 762 P2d 997 (1988)).

See also Jones v. Bierek, 306 Or 42, 46, 755 P2d 698 (1988) (rejecting argument that "the Legislative Assembly intended [the] RLTA to be the exclusive source of a tenant's remedies against a landlord"). Accordingly, simply because the RLTA imposes certain affirmative duties on landlords does not necessarily mean that those duties automatically supplant the common law.

Finally, tenant argues that we should reject section 358, because the legal standard that that section espouses includes elements of traditional contributory negligence and implied assumption of the risk, concepts that the legislature has abolished.(3) In response, landlord contends that section 358

"merely places the burden on the tenant, as the person in the best position to know after the tenancy commences, to become aware of defects in the tenant's unit and to notify the landlord of any defects when they are discovered."

We agree with tenant. We hold that section 358 of the Restatement (Second) of Torts (1965) no longer accurately states the common law of Oregon.

As an initial matter, accepting tenant's argument necessarily requires that we reconsider a prior common-law rule. Although the court has changed common-law rules from time-to-time, see Hammond v. Central Lane Communications Center, 312 Or 17, 26 n 7, 816 P2d 593 (1991) (collecting cases), it "will not lightly overturn precedent, especially when the precedent has been followed for a long time," id. at 26. This court will reconsider a court-created rule or doctrine if "surrounding statutory law or regulations have altered some essential legal element assumed in the earlier case." G.L. v. Kaiser Foundation Hospitals, Inc., 306 Or 54, 59, 757 P2d 1347 (1988) (setting out other circumstances as well). See also Heino v. Harper, 306 Or 347, 373-74, 759 P2d 253 (1988) (following analysis in abolishing doctrine of interspousal immunity); Dahl v. BMW, 304 Or 558, 567-68, 748 P2d 77 (1987) (enactment of comparative fault statutes supported reexamination of prior decision rejecting failure to wear safety belt as defense). As we explain below, such a circumstance is present in this case.

This court has paraphrased section 358 as follows:

"[A] landlord is liable if he fails to disclose to his lessee any condition which involves an unreasonable risk of harm if (a) the lessee has no reason to know of the condition or risk and (b) the lessor has reason to know of the condition and should realize the risk involved and has reason to expect that the lessee will not discover the condition or realize the risk." Richards v. Dahl, 289 Or 747, 749, 618 P2d 418 (1980) (emphasis added).

The court first generally acknowledged section 358 and its counterparts in 1968, shortly after the American Law Institute adopted the Restatement (Second) of Torts. See Macomber v. Cox, 249 Or 61, 69-70, 435 P2d 462 (1968) ("The rules applicable to the lessor-lessee relationship are stated in the Restatement (Second) of Torts, §§ 356-62 (1965)."); id. at 70 n 9 (citing and quoting section 358).

As Macomber indicates, section 358 does not exist in isolation. Instead, it states one of several "exceptions" to what the Bellikka court described as the "rule of immunity" set out in section 356 of the Restatement. 306 Or at 643. Section 356 provides:

"Except as stated in §§ 357-362, a lessor of land is not liable to his lessee or to others on the land for physical harm caused by any dangerous condition, whether natural or artificial, which existed when the lessee took possession."

That rule, which also is known as "caveat lessee," is grounded on the following rationale:

"When land is leased to a tenant, the law of property regards the lease as equivalent to a sale of the land for the term of the lease. The lessee acquires an estate in the land, and becomes for the time being the owner and occupier, subject to all of the liabilities of one in possession, both to those who enter the land and those outside of it." Restatement (Second) of Torts, § 356, comment a (1965).

This court has not adopted the rule stated in section 356 as the law in Oregon. In Jensen v. Meyers, 250 Or 360, 363, 441 P2d 604 (1968), this court rejected section 356, stating: "The property concept standing alone is not a satisfactory explanation for immunizing the lessor from liability." In articulating a different standard, the Jensen court noted that the exceptions to section 356, sections 357-362, recognized that tenants likely will not remedy hazards created by a lessor and that "the lessor is made liable upon the well accepted principle that one is liable for reasonably foreseeable harms." 250 Or at 363. The court concluded:

"But this is not to say that the lessor should be liable in every case where a dangerous condition exists at the time of leasing the premises. As one court has expressed it, '* * * the nature of the defect might be such that the landlord would reasonably expect that the tenant would take steps to remedy the defect or otherwise to safeguard persons entering them at his invitation.'" Id. at 363-64 (ellipsis in original).

In Bellikka, this court reaffirmed the standard set out in Jensen as "a sound premise for determining liability to 'others on the property' of leased premises." 306 Or at 647. However, the court expressly limited that decision "to a discussion of the proper basis of potential liability for landowners with respect to visitors who are on the property at the invitation of the tenant." Id. at 640.

Unlike section 356, this court has approved section 358 as a statement of Oregon common law. See Lapp v. Rogers, 265 Or 586, 588, 510 P2d 551 (1973) (stating the rule); Richards, 289 Or at 749 (applying the rule and stating that "[w]e have previously stated that the principles announced in the Restatement of Torts (Second) reflect our views of the law governing the liability of a landlord to a tenant").(4) The concurring opinion in Richards noted that the court's decision in Lapp predated the legislature's abolition of the doctrine of implied assumption of risk in 1975, that section 358 arguably "carries with it some of the trappings of implied assumption of risk[,]" and that, if it does, "this court could no longer analyze the liability of landlord to tenant under that section." Richards, 289 Or at 755 (Lent, J., concurring). This case presents the issue posed by the concurrence in Richards.

As landlord's proffered instructions indicate, section 358 provides that, if tenant either knew or should have known that the railing presented a safety hazard, he would be barred from any recovery. See Lapp, 265 Or at 588 ("If the common law rules defining the lessor's duty are applicable, then the demurrer was properly sustained because the complaint alleges as the cause of injury a condition which would be known to plaintiff."). At a minimum, such a regime would revitalize the concept of contributory negligence, because a tenant is precluded from any recovery if the tenant knew or should have known either of the condition or the risk involved, even if the tenant's fault or negligence is less than the landlord's. ORS 18.470 precludes such a result. In other words, ORS 18.470 alters an "essential legal element assumed in the earlier case," Kaiser Foundation Hospitals, 306 Or at 59, i.e., the propriety of a liability scheme that includes contributory negligence as an element.

Two decisions of this court support our conclusion. Nylander v. State of Oregon, 292 Or 254, 637 P2d 1286 (1981), involved a wrongful death action in which a personal representative alleged that the state negligently had failed to post warnings about the icy condition of a bridge. The trial court had instructed the jury that, if it found that the decedent either knew or reasonably should have known of the nature and extent of the danger, then the state had no duty to warn. Id. at 257. This court held the instruction erroneous, reasoning, in part, as follows:

"Although the instruction * * * asked the jury to consider what [the decedent] actually knew when she drove onto the bridge, it could well be understood to state a defense of implied assumption of the risk that was abolished by ORS 18.475. * * * Insofar as the instruction asked the jury to decide what she 'reasonably' should have known when she did so, it could be understood to state a defense of contributory negligence. But any contributory negligence on her part would be relevant only as 'comparative fault' under ORS 18.470, whether or not it is the kind of negligence that before ORS 18.475 was described as implied assumption of the risk." Nylander, 292 Or at 260 (citation omitted).

In Woolston v. Wells, 297 Or 548, 687 P2d 144 (1984), the plaintiff sought damages for injuries he sustained when he fell while ascending stairs to deliver a television to the landlord's tenant. The trial court instructed the jury on the basis of the Restatement (Second) of Torts, §§ 343(b) and 343(A)(l) (1965). Woolston, 297 Or at 551-52. Those sections provide, respectively:

"A possessor of land is subject to liability for physical harm caused to his invitees by a condition on the land if, but only if, he:

"* * * * *

"(b) should expect that they will not discover or realize the danger, or will fail to protect themselves against it * * *."

"A possessor of land is not liable to his invitees for physical harm caused to them by any activity or condition on the land whose danger is known or obvious to them, unless the possessor should anticipate the harm despite such knowledge or obviousness."

This court held both instructions invalid. The instruction based on section 343(b) "frustrate[d] the purpose of instituting a system of comparative fault," 297 Or at 556, while the instruction based on section 343(A)(1) "introduce[d] the concept of assumption of risk into the liability calculus," id. at 555. Tenant argues that section 358 "should suffer the same fate" as the Restatement sections at issue in Woolston. We agree.

One final point bears mentioning. We do not mean by our decision to state or imply that evidence of a tenant's actual or constructive knowledge is irrelevant to a landlord-tenant negligence action. Rather, as the court stated in Woolston: "In determining and comparing fault, the jury must necessarily consider the obviousness of danger and the ease or difficulty with which harm to the plaintiff from that danger could be avoided by either party." 297 Or at 558; see also id. at 559-61 (Peterson, C.J., concurring) (emphasizing point). We hold only that a tenant's actual or constructive knowledge of a dangerous condition does not determine, as a matter of law, the nature or extent of a landlord's obligations to the tenant.

For those reasons, landlord was not entitled to have the jury instructed based on the instructions it proffered to the trial court, and the Court of Appeals' conclusion to the contrary constituted error. See Hernandez v. Barbo Machinery Co., 327 Or 99, 106, 957 P2d 147 (1998) (refusal to give requested jury instruction is not error "if the requested instruction is not correct in all respects"). Because landlord did not except separately to the trial court's general foreseeability instruction as improper, we do not assess the propriety of that instruction in this case. Finally, because we conclude that the Court of Appeals erred in its interpretation of the RLTA, it should have considered tenant's cross-appeal concerning attorney fees. We express no view as to the merits of that issue.

The decision of the Court of Appeals is reversed, and the case is remanded to that court to consider petitioner's cross-appeal.

1. Restatement (Second) of Torts § 358 (1965) provides:

"(1) A lessor of land who conceals or fails to disclose to his lessee any condition, whether natural or artificial, which involves unreasonable risk of physical harm to persons on the land, is subject to liability to the lessee and others upon the land with the consent of the lessee or his sublessee for physical harm caused by the condition after the lessee has taken possession, if

"(a) the lessee does not know or have reason to know of the condition or the risk involved, and

"(b) the lessor knows or has reason to know of the condition, and realizes or should realize the risk involved, and has reason to expect that the lessee will not discover the condition or realize the risk.

"(2) If the lessor actively conceals the condition, the liability stated in Subsection (1) continues until the lessee discovers it and has reasonable opportunity to take effective precautions against it. Otherwise the liability continues only until the lessee has had reasonable opportunity to discover the condition and to take such precautions."

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2. On review, the parties debate the propriety of that ruling. In particular, they disagree whether the "we can't tell" rule of Whinston v. Kaiser Foundation Hospital, 309 Or 350, 788 P2d 428 (1990), should apply to this case and, if so, whether the court should continue to adhere to that rule. Given our disposition of the other issues on review, we need not address those questions.

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3. ORS 18.470 provides in part:

"(1) Contributory negligence shall not bar recovery in an action by any person or the legal representative of the person to recover damages for death or injury to person or property if the fault attributable to the claimant was not greater than the combined fault of all persons specified in subsection (2) of this section, but any damages allowed shall be diminished in the proportion to the percentage of fault attributable to the claimant. This section is not intended to create or abolish any defense."

ORS 18.475(2) provides:

"The doctrine of implied assumption of the risk is abolished."

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4. The court repeatedly has stated that "[t]he exact formulations of the Restatements are not necessarily authoritative statements of the law of this state[.]" Anderson v. Fisher Broadcasting Co., 300 Or 452, 460, 712 P2d 803 (1986); see also U.S. National Bank v. Fought, 291 Or 201, 227, 630 P2d 337 (1981) (Linde, J., concurring) ("it is misleading to speak of pleading or proving a cause of action 'under' [a Restatement section], at least until this court has firmly said that the cited section corresponds to the law in Oregon"). Even when the court decides that a particular Restatement principle corresponds to Oregon law, the court does not "enact the exact phrasing of the Restatement rule, complete with comments, illustrations, and caveats." Brewer v. Erwin, 287 Or 435, 455 n 12, 600 P2d 398 (1979). Accordingly, this court's reliance on section 358 in Lapp and Richards must be viewed in that light.

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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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