S43900 State v. Fair

SUPREME COURT CASES

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State: Oregon

Docket No: CC94-10-37301

Case Date: 03/05/1998

FILED: March 5, 1998

IN THE SUPREME COURT OF THE STATE OF OREGON

STATE OF OREGON,

Petitioner on Review,

DAVID WENDELL FAIR, JR.,

Respondent on Review.

(CC 94-10-37301; CA A90430; SC S43900)

On review from the Court of Appeals.*

Argued and submitted September 4, 1997.

Timothy A. Sylwester, Assistant Attorney General, Salem, argued the cause for respondent on review. With him on the briefs were Theodore R. Kulongoski, former Attorney General, Hardy Myers, Attorney General, Virginia L. Linder, former Solicitor General, and Eleanor E. Wallace, Assistant Attorney General.

Jesse Wm. Barton, Deputy Public Defender, Salem, argued the cause for respondent on review. With him on the brief was Sally L. Avera, Public Defender.

Before Carson, Chief Justice, and Gillette,

Van Hoomissen, Graber, and Durham, Justices.**

GRABER, J.

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

*Appeal from Multnomah County Circuit Court,

William J. Keys, Judge (judgment); Robert W. Redding, Judge (demurrer).

145 Or App 96, 929 P2d 1012 (1996).

**Fadeley, J., retired January 31, 1998, and did not participate in this decision; Kulongoski, J., did not participate in the consideration or decision of this case.

GRABER, J.

The issue before us is whether the trial court erred in denying defendant's first demurrer to the indictment that charged him with violating the Oregon Racketeer Influenced and Corrupt Organization Act (ORICO), ORS 166.715 et seq. We hold that the trial court did not err and, accordingly, reverse the contrary decision of the Court of Appeals. State v. Fair, 145 Or App 96, 929 P2d 1012 (1996).

Defendant was convicted of racketeering in violation of ORS 166.720(3), which provides in part:

"It is unlawful for any person * * * associated with[] any enterprise to conduct or participate, directly or indirectly, in such enterprise through a pattern of racketeering activity * * *."

Other sections supply pertinent definitions for the terms used in ORS 166.720(3). At the time of the charged conduct, ORS 166.715 (1993)(1) provided in part:

"(2) 'Enterprise' includes any individual, sole proprietorship, partnership, corporation, business trust or other profit or nonprofit legal entity, and includes any union, association or group of individuals associated in fact although not a legal entity, and both illicit and licit enterprises and governmental and nongovernmental entities.

"* * * * *

"(4) 'Pattern of racketeering activity' means engaging in at least two incidents of racketeering activity that have the same or similar intents, results, accomplices, victims or methods of commission or otherwise are interrelated by distinguishing characteristics, including a nexus to the same enterprise, and are not isolated incidents * * *.

"* * * * *

"(6) 'Racketeering activity' means to commit, to attempt to commit, to conspire to commit, or to solicit, coerce or intimidate another person to commit:

"(a) Any conduct that constitutes a crime, as defined in ORS 161.515, under any of the following provisions of the Oregon Revised Statutes:

"[List omitted.]"

An indictment charged defendant (as well as several other persons) with racketeering. The indictment alleged that, during a stated period of time, defendant knowingly, and while associated with

"an enterprise, to-wit: the Woodland Park Bloods, a street gang not a legal entity but an association in fact, participate[d] directly or indirectly in said enterprise through a pattern of racketeering activity consisting of two or more incidents of racketeering activity described as follows * * *."

The indictment then went on to list the crimes of unlawful delivery of a controlled substance, unlawful possession of a controlled substance, unauthorized use of a vehicle, attempted murder, and attempted first-degree assault. The indictment described with particularity the date, place, and manner of committing each of those five predicate offenses. The delivery and possession allegations involved the same controlled substance, cocaine. The attempted murder and assault allegations involved the same date, the same accomplice, the same victim (a member of a rival gang), and the same weapon (a handgun).

The racketeering count concluded with this paragraph:

"The above constituting at least two incidents of racketeering activity that have the same or similar intents, results, accomplices, victims, or methods of commission or otherwise are interrelated by distinguishing characteristics including a nexus to the same enterprise and are not isolated incidents."

The sufficiency of that paragraph is the focus of this case.

Defendant demurred to the indictment on several grounds, first among them that the indictment "is not definite and certain," ORS 135.630(6), because the quoted allegation of a "pattern" of racketeering activity is too conclusory. Specifically, defendant argued that facts demonstrating particular kinds of similarities, distinguishing characteristics, or nexus among predicate offenses must appear in the indictment.

The trial court disagreed, reasoning that the indictment tracks the statutory definition of "pattern of racketeering activity." Accordingly, the trial court denied defendant's first demurrer.

The Court of Appeals reversed. That court said that the statutory definition of "pattern" allows proof of several kinds of possible relationships that may exist among predicate offenses, that the relationship among the predicate offenses "is not self-evident" here, and that "the indictment's failure to allege the relationship renders it insufficiently specific to allow [defendant] to defend against the charge." Fair, 145 Or App at 102. The court then reversed and remanded with instructions to the trial court to allow the demurrer. Id. at 103. The state petitioned for review, and we allowed the petition.

An indictment must contain, in substance, a "statement of the acts constituting the offense in ordinary and concise language, without repetition, and in such manner as to enable a person of common understanding to know what is intended." ORS 132.550(7). An indictment serves three main functions:

"(1) to inform the defendant of the nature of the crime with sufficient particularity to enable him to make his defense, (2) to identify the offense so as to enable the defendant to avail himself of his conviction or acquittal thereof if he should be prosecuted further for the same cause, and (3) to inform the court of the facts charged so that it may determine whether or not they are sufficient to support a conviction."

State v. Cohen, 289 Or 525, 529, 614 P2d 1156 (1980), cited with approval in State v. Montez, 309 Or 564, 596-97, 789 P2d 1352 (1990), appeal after remand 324 Or 343, 927 P2d 64 (1996), cert den 117 S Ct 1830 (1997). See also Or Const, Art I, § 11 (the accused has a right "to demand the nature and cause of the accusation against him").

Generally, an indictment is sufficient to serve those functions and to withstand a demurrer if it tracks the pertinent wording of the statute defining the crime. See, e.g., Montez, 309 Or at 597 ("An indictment in the language of the statute generally is sufficient."); State v. Nussbaum, 261 Or 87, 91, 491 P2d 1013 (1971) ("It has always been the general rule in Oregon that an indictment in the language of a statute is good on demurrer."); State v. Tracy, 246 Or 349, 354, 425 P2d 171 (1967) ("We have repeatedly held that an indictment in the language of a statute is good on demurrer."). Here, the challenged paragraph in the indictment contains the statutory definition of a pattern of racketeering activity, verbatim except for commas.

Of course, it also is true that "a statement of the particular circumstances of the crime is necessary in order to charge the defendant with having committed specific acts bringing him within the condemnation of the statute." State v. Smith, 182 Or 497, 502, 188 P2d 998 (1948). See also State v. Burke et al., 126 Or 651, 676, 269 P 869, 270 P 756 (1928) ("An indictment for a statutory offense is sufficient if the crime be charged in the words of the statute * * * [so long as] the words of the statute directly and expressly inform the accused of the nature and cause of the accusation against him."). For example, in an indictment for burglary, the state must specify the crime that it alleges that the defendant intended to commit when entering the premises. State v. Sanders, 280 Or 685, 687, 572 P2d 1307 (1977). The precise question here is whether an indictment for racketeering that states the "particular circumstances" of the enterprise and the "particular circumstances" of each of the predicate offenses also must specify the "particular circumstances" of the state's theory or theories of nexus, instead of using the statutory definition of "pattern." We hold that the indictment need not do so.

In Oregon, an indictment may allege means of committing a crime in the alternative. See, e.g., ORS 132.560(1)(a) ("Where the offense may be committed by the use of different means, the charging instrument may allege the means in the alternative."); State v. Boots, 315 Or 572, 582 & n 1, 848 P2d 76 (1993) (Unis, J., dissenting) (the defendant was charged in a single-count indictment with two theories of aggravated murder); State v. Laundy, 103 Or 443, 466-67, 204 P 958, 206 P 290 (1922) ("The general rule is that where a single offense may be committed by several means it may be charged in a single count to have been so committed, if the ways or means are not repugnant * * *. It is a generally recognized rule of criminal pleading that when an offense against a criminal statute may be committed in one or more of several ways specified by the statute, the indictment may in a single count charge the commission of the offense in any or all of the ways specified by the statute * * *.").

Had the indictment spelled out each of the six kinds of alternative relationships separately,(2) in the very words of the statute, defendant could not complain under his present theory that the indictment "is not definite and certain," ORS 135.630(6).(3) The mere fact that the indictment uses instead a summary paragraph, containing all six statutory alternatives, does not render it defective.

At its core, defendant's argument is that the charged crime is complex, making the indictment difficult to defend against. But complex is not the same as uncertain, and difficult is not the same as indefinite. Even if it is complex or difficult to defend against, an indictment may allege multiple theories of committing the same crime in the words of the statute defining the crime. The racketeering indictment in this case was sufficiently definite and certain to fulfill the constitutional and statutory functions that this court has identified.

It follows that the trial court did not err in denying defendant's first demurrer. We therefore reverse the decision of the Court of Appeals and return the case to that court for further proceedings.

Defendant raised other assignments of error that the Court of Appeals did not reach. Ordinarily, we would simply remand the case to that court to consider the remaining issues. We are informed, however, that defendant fled the state after the Court of Appeals issued its opinion, which was favorable to him, but while another criminal case was pending against him. We instruct the Court of Appeals to determine whether defendant remains a fugitive at the time this matter returns to it. If so, the Court of Appeals shall dismiss the appeal. See State v. Smith, 312 Or 561, 822 P2d 1193 (1992) (when a criminal defendant is a fugitive from justice, review is dismissed). If not, the court shall consider defendant's remaining assignments of error.

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

1. Since 1993, the legislature has amended the quoted definitions in some particulars, but none of those amendments is relevant to the disposition of this case.

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2. ORS 166.715(4), defining "pattern of racketeering activity," provides that the predicate offenses must not be isolated and must have (1) the same or similar intents, (2) the same or similar results, (3) the same or similar accomplices, (4) the same or similar victims, (5) the same or similar methods of commission, or (6) another form of interrelationship "by distinguishing characteristics, including a nexus to the same enterprise."

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3. Or, taking a different approach, the indictment might have alleged that the predicate offenses of attempted murder and attempted assault had similar intents (physical harm or death to the victim) and methods of commission (handgun) and the same accomplice and victim; that the two drug offenses, involving possession and delivery of cocaine, had similar intents, results, and methods of commission; that all five predicate offenses had a nexus to the same enterprise, the associates of which committed similar crimes; and so on.

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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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