S43896 Davis v. Campbell

SUPREME COURT CASES

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State: Oregon

Docket No: CC94CV0255

Case Date: 10/22/1998

Filed: October 22, 1998

IN THE SUPREME COURT OF THE STATE OF OREGON

HARVEY and WENDY DAVIS,

Respondents on Review,

DUNCAN CAMPBELL,

Petitioner on Review.

(CC 94CV0255; CA A87714; SC S43896)

On review from the Court of Appeals.*

Argued and submitted September 5, 1997.

Lisa A. Maybee, of Arnold, Gallagher, Saydack, Percell & Roberts, P.C., Eugene, argued the cause and filed the petition for petitioner on review.

Michael R. Stebbins, of Stebbins & Coffey, North Bend, argued the cause and filed the response for respondents on review.

Annette E. Talbott, Portland, filed a brief for 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 affirmed. The judgment of the circuit court is reversed, and the case is remanded to the circuit court for further proceedings.

*Appeal from Coos County Circuit Court,

Robert F. Walberg, Judge.

144 Or App 288, 925 P2d 1248 (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 case involves a claim for damages under the Oregon Residential Landlord and Tenant Act (RLTA), ORS 90.100 et seq. (1991). The issue is whether a tenant, who seeks damages for an alleged violation of the RLTA's habitability requirements, must prove that the landlord knew or should have known of the alleged violation. The circuit court concluded that the tenant must prove that the landlord knew or should have known of the violation. The Court of Appeals reversed, holding that the RLTA imposes statutory liability on the landlord, even if the landlord had neither actual nor constructive knowledge of the violation. Davis v. Campbell, 144 Or App 288, 925 P2d 1248 (1996). For the reasons that follow, we affirm the decision of the Court of Appeals.

Plaintiffs rented a house from defendant in 1991. In 1993, heat transmitting through chimney bricks in a fireplace caused a fire that destroyed the house. At the time of the fire, neither plaintiffs nor defendant had experienced any problems with the fireplace and neither party was aware that its condition presented a fire hazard.

Plaintiffs brought this action asserting two claims, one under the RLTA and one for common-law negligence. In support of their RLTA claim, plaintiffs alleged that the "fire was a direct result of the defendant's failure to maintain the residence in a habitable condition in that the residence substantially lacked safety from the hazards of fire." Defendant denied that allegation and, after discovery, moved for summary judgment on both claims. Plaintiffs then stipulated to the dismissal of their negligence claim.

On the RTLA claim, defendant argued that plaintiffs had to "set forth evidence that the Defendant knew, or should have known, that there was a latent defect in the fireplace chimney which created a fire hazard." Because, in defendant's view, plaintiffs had not made such a showing, he argued that their statutory claim failed. Plaintiffs responded that "foreseeability is not a necessary element where the plaintiffs have plead [sic] a [statutory] violation * * * and this violation resulted in an injury to the very people the statute was designed to protect."

The circuit court granted defendant's motion for summary judgment on the RTLA claim. Plaintiffs appealed from the resulting judgment and from a supplemental judgment for costs and attorney fees. The Court of Appeals reversed. 144 Or App at 293.

The parties do not dispute the material facts. Therefore, we must determine whether the undisputed facts entitle defendant to judgment as a matter of law. Lane Transit District v. Lane County, 327 Or 161, 167, 957 P2d 1217 (1998). To answer that question, we must construe several provisions of the 1991 version of the RLTA, the version of the act in effect at the time of the events in question. Our task is to discern the legislature's intent. ORS 174.020; see PGE v. Bureau of Labor and Industries, 317 Or 606, 610-12, 859 P2d 1143 (1993) (explaining metholology). In doing so, "the text of the statutory provision itself is the starting point for interpretation and is the best evidence of the legislature's intent," and we give words of common usage their "plain, natural, and ordinary meaning." Id. at 610-11. At the first level of analysis, the court examines the provision in context, "which includes [among other considerations] other provisions of the same statute and other related statutes." Ibid. Case law interpreting the statute also is considered at our first level of analysis. State v. Toevs, 327 Or 525, 532, ___ P2d ___ (1998). If the legislature's intent is clear based on a textual and contextual inquiry, further analysis is unnecessary. Ibid.

This court has stated that the RLTA, which the legislature enacted in 1973, was intended to clarify and restate the rights and obligations of tenants and landlords. L & M Investment Co. v. Morrison, 286 Or 397, 405, 594 P2d 1238 (1979).(1) One of the RLTA's most important provisions requires landlords to maintain a dwelling in a "habitable condition." Ibid. As relevant here, that provision, ORS 90.320(1)(j) (1991), provided:

"A landlord shall at all times during the tenancy maintain the dwelling unit in a habitable condition. For purposes of this section, a dwelling unit shall be considered unhabitable if it substantially lacks:

"* * * * *

"(j) Safety from the hazards of fire[.]"

ORS 90.360 (1991) stated the remedies for a violation of the RLTA's habitability requirements and provided, in part:

"[With exceptions that do not apply here,] the tenant may recover damages and obtain injunctive relief for any noncompliance by the landlord with the rental agreement or ORS 90.320." ORS 90.360(2) (1991).(2)

We must determine whether those two statutes required that landlords be held liable for habitability violations, even if they had no actual or constructive knowledge of the violation.

We begin with a textual analysis of the remedy provision, ORS 90.360(2) (1991). That statute is unambiguous. As the Court of Appeals explained:

"There is no mention of a landlord's knowledge as a condition of recovery under ORS 90.360(2). The statute says that 'the tenant may recover damages * * * for any noncompliance' with the habitability requirements of ORS 90.320 [(1991)]. The statute does not say 'any negligent noncompliance.' Nor does it refer to 'noncompliance after notice from the tenant' or 'noncompliance when the landlord knew or in the exercise of reasonable care should have known' of the nonhabitable condition. It simply says that a tenant may bring an action for damages for 'any noncompliance' with the habitability requirements of the RLTA, regardless of the landlord's knowledge or lack of knowledge of the condition of the premises." Davis, 144 Or App at 293-94 (emphasis in original).

We agree. In construing a statute, we may not "insert what has been omitted, or * * * omit what has been inserted * * *." ORS 174.010; PGE, 317 Or at 611 (same). Defendant's proffered construction would have us do just that.

We similarly discern no textual ambiguity in the habitability requirement, ORS 90.320(1)(j) (1991). As this court noted in Napolski v. Champney, 295 Or 408, 415, 667 P2d 1013 (1983), referring to what later became ORS 90.320 (1991): "[T]he act affirmatively obligates residential landlords to maintain rental properties in 'habitable condition' * * *." (Emphasis added.) Under the plain terms of the statute, a landlord fails to fulfill that affirmative obligation if, at any time during the tenancy, the dwelling unit substantially lacks safety from the hazards of fire. ORS 90.320(1)(j) (1991). The statute did not provide that a dwelling unit shall be considered uninhabitable only if the tenant is able to prove that the landlord either knew or should have known that the unit was unsafe from fire. The fact that a dwelling unit substantially lacks safety from fire -- without regard to a landlord's knowledge, actual or constructive -- is sufficient to establish a statutory violation. To adopt defendant's contrary construction of ORS 90.320(1)(j) (1991) would require us to insert text into the statute.

Accordingly, when read together, the statutes textually provided that, if at any time during a tenancy, the dwelling unit substantially lacks safety from the hazards of fire, i.e., there has been a "noncompliance" by the landlord for purposes of ORS 90.360(2) (1991), then the tenant may "recover damages and obtain injunctive relief." We see nothing in the text of either statute that suggests that the legislature intended to include actual or constructive knowledge as a prerequisite to landlord liability.

Turning to the context of the statutes, other remedy provisions in the RLTA -- which specifically address a landlord's state of mind -- lend support to our textual conclusion that ORS 90.320(1)(j) (1991) and 90.360(2) (1991) did not impose an actual or constructive knowledge requirement. For example, the RLTA (with text that has not varied substantially since its enactment in 1973) prohibits the use of certain provisions in rental agreements:

"If a landlord deliberately uses a rental agreement containing provisions known by the landlord to be prohibited and attempts to enforce such provisions, the tenant may recover in addition to the actual damages of the tenant an amount up to three months' periodic rent." ORS 90.245(2) (emphasis added).

Also, with respect to the provision of essential services, the RLTA has provided that if "the landlord deliberately refuses or is grossly negligent in failing to supply" such services, the tenant is entitled to seek certain, specified remedies. ORS 90.365 (emphasis added).

Further, the RLTA has provided that

"If a landlord * * * willfully diminishes or seriously attempts or seriously attempts or seriously threatens unlawfully to diminish services to the tenant by interrupting or causing the interruption of heat, running water, hot water, electric or other essential service, the tenant may * * * terminate the rental agreement and recover an amount up to two months' periodic rent or twice the actual damages sustained by the tenant, whichever is greater." ORS 90.375.

Finally, with respect to a landlord storing a tenant's abandoned personal property, the RLTA originally provided as follows:

"The landlord shall not be responsible for any loss to the tenant resulting from storage unless the loss was caused by the landlord's deliberate or negligent act. In the event of deliberate and malicious violation the landlord shall be liable for twice the actual damages sustained by the tenant." ORS 91.840(4) (1973) (emphasis added).(3)

We believe that the foregoing examples demonstrate that

"when the legislature wanted to incorporate elements of common-law negligence as conditions of a tenant's remedies, it did so. It did not do so in ORS 90.360 [(1991)], which provides that a tenant may recover damages for a landlord's violation of habitability standards without reference to the landlord's knowledge of the condition of the premises." Davis, 144 Or App at 294.

Against that textual and contextual analysis, defendant contends that the result we reach today is inconsistent with section 358 of the Restatement (Second) of Torts (1965), which he asserts "was not overruled by the enactment of the RLTA" and "has been adopted in Richards v. Dahl, 289 Or 747, 618 P2d 418 (1980)."(4) Oregon generally has looked to the Restatement when considering common-law landlord and tenant claims. See, e.g., Richards, 289 Or at 749 ("We 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."). But see Park v. Hoffard, 315 Or 624, 629, 847 P2d 852 (1993) (stating that the Restatement will continue to apply except when its rules "are based on outmoded understandings of legal relationships"). Defendant's assertion, however, does not advance his claim. Unlike Richards, this appeal does not involve a negligence action. Plaintiffs dismissed their negligence claim in circuit court. Rather, we are concerned here only with statutory liability.

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. See Bellikka v. Green, 306 Or 630, 638, 762 P2d 997 (1988) ("The RLTA does not supersede the common law in all aspects of personal injury liability."). Accordingly, the fact that section 358 might apply to a common-law negligence claim brought by a tenant says nothing about whether the legislature intended that legal standard to apply to a statutory claim under the RLTA. See Gattman v. Favro, 306 Or 11, 15, 757 P2d 402 (1988) ("if a statutory tort is created, foreseeability may be immaterial or has been determined by the legislature"). The text and context of ORS 90.320(1)(j) (1991) and 90.360(2) (1991) demonstrate that the legislature did not intend that a landlord's liability under the RLTA's habitability provisions be conditioned on the landlord having actual or constructive knowledge of the condition of a dwelling unit. Simply because a different standard might apply in an action for common-law negligence arising from the same event does nothing to alter that conclusion.

Based on an examination of the text and context of the statutes at issue, we conclude that the legislature's intent is clear. A tenant is not required to prove that a landlord had either actual or constructive knowledge of an uninhabitable condition under ORS 90.320(1)(j) (1991) to prevail on a statutory claim for damages under ORS 90.360(2) (1991). The trial court erred in drawing a contrary conclusion and in allowing defendant's motion for summary judgment. The Court of Appeals correctly reversed the judgment of the trial court.

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

1. For a discussion of the history of the RLTA's enactment, including its judicial and legislative precursors, see John H. Van Landingham, IV, Comment, The Evolution of the Oregon Residential Landlord and Tenant Act, 56 Or L Rev 655 (1977). See also Mark W. Cordes, Comment, Landlord-Tenant Reform in Oregon: The Impact of L & M Investment Co. v. Morrison and Brewer v. Erwin, 16 Willamette L Rev 835 (1980) (discussing the RLTA and its early interpretations); Napolski v. Champney, 295 Or 408, 414-15, 667 P2d 1013 (1983) (providing a history of landlord and tenant law).

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2. The legislature amended ORS 90.360 in 1997, after the Court of Appeals issued its decision in this case. ORS 90.360(2) now provides:

"Except as provided in this chapter, the tenant may recover damages and obtain injunctive relief for any noncompliance by the landlord with the rental agreement or ORS 90.320. The tenant shall not be entitled to recover damages for a landlord noncompliance with ORS 90.320 if the landlord neither knew nor reasonably should have known of the condition that constituted the noncompliance and:

"(a) The tenant knew or reasonably should have known of the condition and failed to give actual notice to the landlord in a reasonable time prior to the occurrence of the personal injury, damage to personal property, diminution in rental value or other tenant loss resulting from the noncompliance; or

"(b) The condition was caused after the tenancy began by the deliberate or negligent act or omission of someone other than the landlord or a person acting on behalf of the landlord."

This decision involves only the 1991 version of ORS 90.360(2), not its 1997 formulation.

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3. For the subsection's present formulation, see ORS 90.425(13) (1997) and its surrounding statutory counterparts.

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4. 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 his reason to expect that the lessee will not discover the condition or realize the risk.

"(2) If the lessee 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 vendee has had reasonable opportunity to discover the condition and to take such precautions."

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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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