S44144 Doe v. Denny's, Inc.

SUPREME COURT CASES

Laws-info.com » Cases » Oregon » 1998 » S44144 Doe v. Denny's, Inc.

State: Oregon

Docket No: CCCV940538

Case Date: 07/24/1998

Filed: July 24, 1998

IN THE SUPREME COURT OF THE STATE OF OREGON

JANE DOE,

Petitioner on Review,

DENNY'S, INC., a California
corporation; and ROBERT HIBBARD
and KEN JACOBS,

Respondents on Review.

(CC CV 940538; CA A89182; SC S44144)

On review from the Court of Appeals.*

Argued and submitted November 3, 1997.

Michael B. Collins, Pendleton, argued the cause and filed the briefs for petitioner on review.

Emil R. Berg, Boise, Idaho, in association with Carl Burnham, Jr., of Yturri, Rose, Burnham, Bentz & Helfrich, LLP, Ontario, argued the cause and filed the briefs for respondents.

Charles Robinowitz, Portland, filed briefs on behalf of amicus curiae Oregon Trial Lawyers Association.

Karen O'Kasey, of Schwabe, Williamson & Wyatt, Portland, filed a brief on behalf of amicus curiae Oregon Association of Defense Counsel.

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

GILLETTE, J.

The decision of the Court of Appeals and the judgment of the circuit court are affirmed.

*Appeal from Umatilla County Circuit Court,

J. F. Olsen, Judge.

146 Or App 59, 931 P2d 816 (1997).

**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.

GILLETTE, J.

This is an action under ORS 659.425(1) (1995), which prohibits discrimination, based on disability, with respect to hiring, firing, and other "terms, conditions and privileges" of employment.(1) Plaintiff, who is HIV-positive, filed this action against her former employers, alleging that defendants(2) had violated ORS 659.425(1) by telling her that a customer had complained about her HIV condition and that business would suffer if she continued in their employ. The trial court entered summary judgment for defendants and the Court of Appeals affirmed. Doe v. Denny's, Inc. 146 Or App 59, 931 P2d 816 (1997).

We allowed plaintiff's petition for review to consider whether an employer might violate the statute by discussing negative customer perceptions of an employee's disability with an employee. We also allowed review of a secondary issue pertaining to the trial court's denial of a motion to compel the production of a document -- a denial that the Court of Appeals also affirmed. We affirm the decision of the Court of Appeals.

As noted, the primary issue presented by this case was decided on a motion for summary judgment. In reviewing a trial court's decision to grant summary judgment, we consider the evidence that was before the trial court, along with all reasonable inferences to be drawn from that evidence, in the light most favorable to the nonmoving party -- here, plaintiff. Wallulis v. Dymowski, 323 Or 337, 340, 918 P2d 755 (1996). We accept plaintiff's version of the events (to the extent that that version is set out in her deposition and other evidentiary materials) as true, as well as other evidence that supports her position.

The relevant events occurred while plaintiff was training as a server at a restaurant owned by defendant Denny's, Inc. Sometime during the training period, plaintiff told her immediate supervisor, defendant Hibbard, that she had been diagnosed as HIV-positive. Hibbard's demeanor toward plaintiff immediately changed. He became less friendly and more aloof. The next day, Hibbard called plaintiff into his office. Hibbard told plaintiff that a "regular customer" had complained about plaintiff. According to Hibbard, the customer had said not only that he knew about plaintiff's HIV condition, but also that he intended to tell others and to boycott the restaurant as long as plaintiff was employed there. Hibbard then told plaintiff that he could not fire her or lay her off, but that her continued employment would harm or destroy the restaurant's business.

Plaintiff offered to resign, but indicated that she wanted to talk to her Adult and Family Services caseworker first. That evening, the caseworker confirmed what Hibbard had said: that plaintiff could not be fired because of her HIV status. The caseworker also told plaintiff that, if she resigned, she would lose her eligibility for certain government benefits. After plaintiff reported that information to Hibbard, Hibbard and plaintiff agreed that plaintiff would resign and that Hibbard would treat that separation from work as a layoff, in order to assist plaintiff in obtaining unemployment benefits. Hibbard also agreed to provide (and did provide) plaintiff with a favorable letter of reference.

Sometime after her resignation, plaintiff initiated the present action against Denny's, Hibbard, and another supervisor, Jacobs. In her complaint, plaintiff asserted two claims against defendants under ORS 659.425(1): First, that defendants' conduct amounted to wrongful discharge and, second, that it was unlawful discrimination with respect to one or more "terms, conditions or privileges of employment." In their answer, defendants admitted that plaintiff had been informed of a customer complaint, but denied plaintiff's claims of wrongful discharge and unlawful discrimination.

Defendants moved for summary judgment. They argued that, because plaintiff had resigned and had not identified any intolerable working conditions suggesting that her resignation was involuntary, her wrongful discharge claim must fail as a matter of law. With respect to plaintiff's discrimination claim, defendants noted the absence of any evidence that defendants had treated plaintiff differently in any "term, condition or privilege" of employment on learning of her condition.

In response to defendants' motion, plaintiff purported to show that she had been constructively discharged -- that Hibbard told her about the complaint and his concerns about public perception of the business in a deliberate and, ultimately, successful effort to humiliate her into resigning. Plaintiff also submitted a cross-motion for summary judgment on the discrimination claim, arguing that she was entitled to judgment as a matter of law.

Ultimately, the trial court granted defendants' motion and denied plaintiff's. The court explained its decision by noting that plaintiff had resigned and that "there were no changes in [plaintiff's] working conditions after she gave the defendants notice of her HIV condition."

As noted, on plaintiff's appeal, the Court of Appeals affirmed. The Court of Appeals' majority agreed with the trial court that plaintiff had not demonstrated any change in her working conditions:

"Actionable discrimination under [ORS 659.425] requires that an employee be treated differently in the work place because of a physical condition in a manner proscribed by the statute. Hibbard's statement, made during a private conversation with plaintiff, that the customer's statements about plaintiff's condition could destroy Denny's business did not change anything concerning the terms or conditions of her employment. Even if the jury could properly infer from Hibbard's statements and demeanor that defendants hoped that plaintiff would resign, that hope was not expressed in any inducement or threat that changed a term, condition or privilege of her employment. In sum, defendants said and did nothing that violated the statute. The terms and conditions of plaintiff's employment were the same before, during and after the conversation. Similarly, plaintiff's theory of constructive discharge also fails because there is no evidence of any intolerable 'conditions' of employment that forced her to resign."

Id. at 66-67. The Court of Appeals also concluded that the trial court did not err in denying plaintiff's motion to compel. Id. at 68.

We turn first to plaintiff's statutory wrongful discharge claim. Under ORS 659.425(1), it is an unlawful employment practice to "discharge [an individual] from employment" because of a real or perceived mental or physical impairment. Leaving aside (for the moment) the issue of defendants' motives, we consider a more elementary issue -- whether in fact plaintiff was discharged. Plaintiff acknowledges that defendants did not discharge her in the usual sense of that word. At least formally, she resigned. She argues, however, that her resignation was prompted by working conditions that were imposed on her because of her HIV condition -- working conditions that would have caused a reasonable person to resign. She contends, in other words, that defendants constructively discharged her for discriminatory reasons, in violation of ORS 659.425(1).

The elements necessary to establish a constructive discharge were set out by this court most recently in McGanty v. Staudenraus, 321 Or 532, 557, 901 P2d 841 (1995):

"[T]o establish a constructive discharge, a plaintiff must allege and prove that (1) the employer intentionally created or intentionally maintained specified working condition(s); (2) those working conditions were so intolerable that a reasonable person in the employee's position would have resigned because of them; (3) the employer desired to cause the employee to leave employment as a result of those working conditions or knew that the employee was certain, or substantially certain, to leave employment as a result of those working conditions; and (4) the employee did leave the employment as a result of those working conditions."

(Footnotes omitted; emphasis in original.)

Plaintiff asserts that Denny's constructively discharged her under that standard. She contends that defendants intentionally created an intolerable working condition by telling her that a customer knew about her condition and intended to tell others, and by implying that her continued employment would harm her own economic well being and damage or destroy the business. She suggests that defendants conveyed an implied threat of public humiliation -- that she would be forced to deal with inevitable negative customer reactions herself, without any support or protection from her employers.

In rejecting plaintiff's constructive discharge theory, the Court of Appeals focused on the apparent absence of any identifiable change in the "conditions" of plaintiff's employment. For the reasons that follow, we agree with that approach.

Plaintiff's wrongful discharge claim fails, because she cannot identify any act or statement by her employer that created or maintained an intolerable working condition that she would be forced to endure if she remained on the job. Hibbard's prediction that a customer boycott over her employment would destroy the restaurant's business cannot reasonably be stretched into a nonexistent threat to withhold protection from abusive customers. Hibbard's words do not suggest that inference, and we are not bound to agree with plaintiff's advocacy for an interpretation of Hibbard's statement that his words will not bear. The Court of Appeals correctly affirmed the trial court's dismissal of plaintiff's wrongful discharge claim.

We turn to plaintiff's second claim under ORS 659.425(1) -- that defendants discriminated against plaintiff with respect to a "term, condition or privilege" of employment because of her HIV status. With respect to that claim, plaintiff offers two arguments. The first argument relies on a Bureau of Labor and Industries (BOLI) rule pertaining to employer evaluations of disabled employees' work performance, OAR 839-006-0250:

"The attitude or preference of employers, managers, supervisors, coworkers, clients or the general public toward the person's perceived or actual impairment may not be considered by the employer in evaluating the person's ability to perform the work involved."

(Emphasis added.)

Plaintiff contends that defendants violated that rule by revealing a customer's negative perceptions of plaintiff's job performance to plaintiff when those perceptions were based solely on her disability. Plaintiff further contends that, in doing so, defendant violated ORS 659.425(1), because noncompliance with OAR 839-006-0250 is unlawful discrimination per se:

"Here, the employer, by revealing such perceptions to the employee, was telling Doe that her ability to do her job was impaired because of adverse public perceptions of her disability and the problems resulting from such perceptions. Under OAR 839-006-0250, this type of conduct is discriminatory per se. An employer may not, in any way, communicate to an employee the employer's disapproval of a disabled employee's job performance, based upon adverse public perceptions of the employee. The reasoning behind this approach is undoubtedly grounded in the notion that individuals with disabilities may be especially sensitive about how they are perceived by the public due to their disability."

We need not decide whether plaintiff's interpretation of OAR 839-006-0250 is correct, because her argument under that interpretation is not supported by the facts in this record. Employer was not, by informing plaintiff about adverse customer perceptions of her disability, making its own evaluation of her ability to perform as a waitress. Discriminating lies in altering working conditions due to a protected factor (handicap, religion, sex, race, and the like), not in merely acknowledging orally the hostility of customers toward plaintiff due to her handicap. Plaintiff's argument in this respect fails.

Plaintiff's remaining argument suggests that, to raise a question of fact as to whether defendant had discriminated in a term, condition, or privilege of employment, it was sufficient for her to show that defendants' conduct made her feel unwanted and that that conduct was motivated by the hope that she would resign. In so arguing, she decries the Court of Appeals' "narrow" view of the relevant wording:

"The Court of Appeals majority approached this issue very narrowly. They found that because defendants 'did not fire plaintiff, change her work hours, pay her less money or deprive her of a benefit or privilege that other employees had under their employment relationship' she was not discriminated against. The majority analysis effectively shifts the issue from the employer's conduct to the nature of the harm suffered by the employee, by requiring that the employee must show some tangible loss of a job benefit in order to prove discriminatory treatment.

The problem with this analysis is that it ignores the power relationships that are present in an employer-employee setting. The attitude of the employer toward the employee is a very important condition of employment."

(Emphasis in original.)

We understand plaintiff to be arguing that, contrary to the Court of Appeals' conclusion, discrimination can exist in the alteration of an intangible condition of a job, namely, the employer's subjective attitude toward the employee, providing that the employee is able to show that the alteration is due to an impermissible motive. We need not decide that question, however, because plaintiff's claim would fail, on this record, even under the test that she advocates.

At its essence, proving discrimination requires some showing of a change in a working condition to the worker's detriment. Here, the employer acknowledged that customers likely would boycott the restaurant, and that that would lead to economic hardship for the company and for plaintiff. The employer stated or implied that it disfavored that consequence -- it hardly could have been otherwise. However, the employer did not state or imply that it planned to change any aspect of plaintiff's working conditions in response to the threatened boycott. The fact that plaintiff "felt" unwanted as a result of employer's comments does not create a fact question about whether the employer altered a working condition in saying what was said. Plaintiff offers no further facts to show that her job as a waitress in the restaurant required a close working relationship with the supervisor, so that his behavior in treating her with a cold shoulder might be viewed as discriminatory behavior under the legal test that plaintiff advocates.

In this regard, plaintiff's most serious argument is that her supervisor called her into his office to speak about the topics of the customer boycott, potential economic losses for them both and, for the worker, loss of her reputation in the community and probable harassment from customers, all with the hope that plaintiff would choose to resign.

Some points about the conversation are pivotal. The supervisor announced no alterations of plaintiff's working conditions. Acknowledging the discriminatory attitudes of customers, and the harm that may flow from those attitudes, does not convey any plan of the employer's own to itself engage in discriminatory actions. The supervisor conveyed no offensive terms or rude statements about plaintiff, her infection status or the difficulties that the customers' attitudes had created. The meeting occurred one-on-one, not in front of a group. Employer announced no ultimatums or deadlines for a decision by plaintiff to quit, and made no threats to expel her if she was indecisive about staying or leaving. The meeting transpired briefly, and the supervisor used a conversational tone of voice without undue stress or profanity.

Plaintiff may have "felt" humiliated by the employer's actions, but we cannot say, on this record, that employer inflicted humiliation on her. In short, the employer's conduct made no change in plaintiff's working conditions. Because it did not, plaintiff's claim fails. The trial court properly awarded summary judgment to defendant.(3)

Plaintiff raises one additional issue, pertaining to the denial of a motion made during the discovery phase to compel production of a document. At the deposition of defendant Jacobs, he testified that he had prepared a report for his employer shortly after plaintiff filed her action and that he had "reviewed" the report before, and in preparation for, his deposition. When plaintiff requested that the report be produced, defendants refused. Plaintiff then moved to compel production, citing OEC 612, the evidence rule pertaining to writings used to refresh memory.(4) Defendants resisted the motion, arguing that the report had not been used to refresh Jacobs' memory and that it was immune from discovery as work product, ORCP 36 B(3).(5) Ultimately, the trial court denied the motion to compel, finding that the report was work product (and therefore protected from discovery under ORCP 36 B(3)) and that it was not discoverable under OEC 612, "because said document did not actually refresh the recollection of defendant Ken Jacobs." The Court of Appeals affirmed.

Plaintiff contends that the trial court erred in concluding that the work-product doctrine precluded production of the document. She argues that any work-product protection that the report might otherwise have enjoyed was waived under OEC 612 when Jacobs reviewed it before giving his deposition.

Whatever the merits of plaintiff's position in theory, we decline to consider them in this case, because the trial court's alternative ruling is dispositive. If, as the trial court found, the document did not, in fact, refresh Jacob's memory -- and the record contains evidence that supports that finding -- then failure to produce it for use in his cross examination cannot have been reversible error. The Court of Appeals therefore did not err in this respect.

The decision of the Court of Appeals and the judgment of the circuit court are affirmed.

1. ORS 659.425(1) (1995) provided:

"For the purpose of ORS 659.400 to 659.460, it is an unlawful employment practice for any employer to refuse to hire, employ or promote, to bar or discharge from employment or to discriminate in compensation or in terms, conditions or privileges of employment because:

"(a) An individual has a physical or mental impairment which, with reasonable accommodation by the employer, does not prevent the performance of the work involved;

"(b) An individual has a record of a physical or mental impairment; or

"(c) An individual is regarded as having a physical or mental impairment."

The 1997 legislature amended ORS 659.425 in ways that do not affect the present discussion.

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2. Defendants are Denny's, Inc., the restaurant chain that employed plaintiff, and Jacobs and Hibbard, two of her supervisors.

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3. Our conclusion that summary judgment for defendants was proper also disposes of plaintiff's claim that the trial court erred in denying her cross-motion for summary judgment.

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OEC 612 provides, in part:

"If a witness uses a writing to refresh memory for the purpose of testifying, either while testifying or before testifying if the court in its discretion determines it is necessary in the interests of justice, an adverse party is entitled to have the writing produced at the hearing, to inspect it, to cross-examine the witness thereon, and to introduce into evidence those portions which relate to the testimony of the witness."

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ORCP 36 B(3) provides, in part:

"Subject to the provisions of rule 44, a party may obtain discovery of documents and tangible things otherwise discoverable under subsection B(1) of this rule and prepared in anticipation of litigation or for trial by or for another party or by or for that other party's representative (including an attorney, consultant, surety, indemnitor, insurer, or agent) only upon a showing that the party seeking discovery has substantial need of the materials in the preparation of such party's case and is unable without undue hardship to obtain the substantial equivalent of the materials by other means."

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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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