S43847 Thompson v. Coughlin

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State: Oregon

Docket No: CCA8911-06395

Case Date: 02/17/2000

Filed: February 17, 2000

IN THE SUPREME COURT OF THE STATE OF OREGON

BRUCE THOMPSON,

Respondent on Review,

JEAN COUGHLIN,

Petitioner on Review.

(CC A8911-06395; CA A87937; SC S43847)

On review from the Court of Appeals.*

Argued and submitted January 5, 1998.

Stephen S. Walters, of Stoel Rives LLP, Portland, argued the cause on behalf of petitioner on review. With him on the briefs was Keith M. Garza.

Michael L. Williams, of Williams & Troutwine, P.C., Portland, argued the cause on behalf of respondent on review. On the briefs was Jeffrey S. Merrick.

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

KULONGOSKI, J.

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

* Appeal from Multnomah County Circuit Court. 144 Or App 348, 927 P2d 146 (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; Durham, Leeson, and Riggs, JJ., did not participate in the consideration or decision of this case.

KULONGOSKI, J.

This action was brought by one partner of a two-person partnership for breach of their partnership agreement. Plaintiff and defendant, agents for Mutual of New York Insurance Company, formed a partnership in 1984 to sell life insurance. After defendant withdrew from the partnership in 1988, a dispute arose about the sharing of commissions, and plaintiff brought this action in which he sought both an accounting from, and a money judgment against, defendant.

The original partnership agreement provided that the partners would share equally all commissions earned during the life of the partnership. (1) That agreement further provided that, if one partner withdrew, the partners would continue to share equally commissions for insurance sold to designated partnership clients or accounts within the two years following the dissolution of the partnership. (2) In February 1986, the partners negotiated two additional documents addressing the sharing of commissions during the life of the partnership and shortening from three months to thirty days the effective date of termination following notice of withdrawal by either partner. (3) In November 1988, defendant wrote a letter to plaintiff, notifying plaintiff of her withdrawal from the partnership.

In 1988, before the partnership dissolved, and again in 1989, after dissolution, defendant and insurance agents working with her sold two insurance policies to the Macdonald family. The parties disagree about plaintiff's level of involvement in the 1988 sale, but agree that he did not participate in the 1989 transaction. A dispute arose between plaintiff and defendant about sharing the commissions that defendant received on both Macdonald transactions.

In November 1989, plaintiff filed an action in law, entitled "Complaint For Breach Of Contract And Interception Of Commission," alleging that defendant was in breach of the partnership agreement and that plaintiff was entitled to share in the commissions withheld. Defendant's answer raised four affirmative defenses, three of which were equitable defenses: unclean hands, waiver, and estoppel. The case was submitted to nonbinding arbitration. Defendant appealed from the arbitration award and requested a jury trial.

Plaintiff later filed a "First Amended Complaint For An Accounting," alleging in part:

"8. Plaintiff is entitled to such an accounting from defendant, and is entitled to receive from defendant plaintiff's equal share in any such profits. Plaintiff is without knowledge as to * * * how much money is due to him from defendant.

"* * * * *

"10. Defendant is in breach of the partnership agreement already in that:

"* * * * *

"(C) Defendant has failed to pay to plaintiff his fifty percent (50%) of her profits to date, as well as prejudgment interest thereon at the legal rate of nine percent (9%) per annum on the monies owed from the date defendant received them to the date of the judgment in this case; and

"(D) Defendant has also refused, in anticipatory breach of her obligation, to pay one-half of future renewal commissions on the same sales, for the next several years. Therefore, plaintiff is entitled to a sum of money in the form of a judgment against defendant representing the present value of his one-half of those future renewal commissions."

In her answer, defendant again raised the equitable defenses of unclean hands, waiver, and estoppel, and demanded a jury trial. On plaintiff's motion to strike defendant's jury demand, the trial court decided, based on the pleadings, that the action was in equity and that neither party was entitled to a jury trial.

The trial commenced in equity. The trial court held that the 1986 agreements collectively replaced the original 1984 partnership agreement in its entirety and that plaintiff had no right to an accounting or to recover commissions or profits from defendant. Accordingly, the trial court entered judgment for defendant. On plaintiff's appeal, the Court of Appeals reversed and remanded, holding, among other things, that the 1986 agreements supplemented, rather than replaced, the original 1984 partnership agreement. Thompson v. Coughlin, 124 Or App 398, 402, 862 P2d 582 (1993).

On remand, the trial court, again treating the matter as one in equity, refused to render an accounting on the ground that plaintiff had unclean hands and, consequently, was not entitled to equitable relief. Plaintiff appealed, and the Court of Appeals, on de novo review, reversed and remanded with instructions to render an accounting. Thompson v. Coughlin, 144 Or App 348, 357, 927 P2d 146 (1996). We allowed defendant's petition for review. On de novo review, we reverse the decision of the Court of Appeals. (4)

From the record, it appears that, when this action originally was filed, the parties viewed the action as one in law. Plaintiff filed his complaint as an action in law for breach of contract. After defendant answered by asserting three equitable defenses, plaintiff moved to strike on the ground that the action was in law and, therefore, equitable defenses did not apply. Defendant then made a jury demand. The trial court ruled, however, that defendant was not entitled to a jury trial, and the action was litigated as one in equity. On appeal, defendant continued to argue that the trial court erred in denying her jury demand. However, in the first decision by the Court of Appeals in this case, Thompson, 124 Or App at 401-02, the Court of Appeals rejected defendant's argument that she was entitled to a jury trial. Both parties and the trial court then proceeded under that determination as the law of the case. At oral argument in this court, however, the parties reiterated their original positions: Plaintiff argued that the action was one in law, and defendant argued that she was entitled to a jury trial. (5)

We originally allowed review of this case to decide whether the Court of Appeals' "comparative approach" to analysis and application of the equitable defense of unclean hands was correct. As is evident from the foregoing, however, it is unclear from a procedural standpoint whether plaintiff's action is one in law or equity. Consequently, as a threshold issue, we first must determine whether plaintiff's action is legal or equitable in nature. See Community Bank v. Jones, 278 Or 647, 650, 566 P2d 470 (1977) (even though issue was not cross-appealed, "in determining the proper scope of our review, we must, as a preliminary matter, determine whether this lawsuit is one at law or in equity."). We begin by examining the source of plaintiff's action for an accounting.

Plaintiff and defendant agreed in their 1984 partnership agreement to be bound by the Uniform Partnership Act (UPA), codified as ORS chapter 68. (6) The 1986 modifying agreements made no mention of chapter 68. A simultaneous reading of the three instruments, which we do in conformance with the Court of Appeals' holding that the 1986 agreements supplemented, rather than replaced, the 1984 agreement, leaves intact the provisions of the 1984 agreement relating to chapter 68.

ORS 68.650, the section of chapter 68 applicable to post-dissolution actions for an accounting, provides, in part:

"The right to an account of the interest of the partner shall accrue to any partner * * * as against the winding up partners or the surviving partners or the person * * * continuing the business, at the date of dissolution, in the absence of any agreement to the contrary."

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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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