S44863 In re Bernath

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State: Oregon

Docket No: none

Case Date: 07/24/1998

Filed: July 24, 1998

IN THE SUPREME COURT OF THE STATE OF OREGON

In the Matter of the Application of
DANIEL ALAN BERNATH,

For Admission to the Oregon State Bar.

(SC S44863)

On review of the recommendation of the Oregon State Board of Bar Examiners.

Submitted on the record and briefs April 24, 1998.

Daniel A. Bernath filed petitioner's briefs pro se.

Jeffrey D. Sapiro, Oregon State Bar, Lake Oswego, filed the brief on behalf of the Oregon State Board of Bar Examiners.

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

PER CURIAM

Admission denied.

PER CURIAM

The issue in this case is whether Daniel A. Bernath (applicant) has proved by clear and convincing evidence that he "is a person of good moral character and fit to practice law" in this state. ORS 9.220(2)(a).(1) After de novo review of the record developed before the Board of Bar Examiners (Board), ORS 9.536(3) and 9.539, Rules for Admission of Attorneys (RFA) 9.60(5), and Bar Rule of Procedure (BR) 10.6, we conclude that applicant has not proved that he possesses the requisite good moral character and fitness to practice law in this state. Accordingly, we deny applicant admission to the practice of law in the State of Oregon.

Applicant was admitted to the practice of law in California in 1984 and practiced in that state until 1994, at which time he moved to Oregon. In October 1994, applicant applied for admission to the Oregon State Bar. Applicant took and passed the February 1995 Oregon State Bar examination. However, following a character and fitness review proceeding, a three-member panel of the Board recommended that applicant be denied admission to the practice of law in Oregon. Thereafter, the full Board unanimously made the same recommendation to this court, forwarding that recommendation to the court on December 24, 1997. Applicant timely filed a petition for review of the Board's recommendation. This court has jurisdiction pursuant to ORS 9.539 and BR 10.2.

Applicant must prove by clear and convincing evidence that he has the requisite good moral character to be admitted to the practice of law in Oregon. RFA 9.45(6); In re Rowell, 305 Or 584, 588, 754 P2d 905 (1988). That means that applicant must show that it is "highly probable" that he has good moral character. In re Monaco, 317 Or 366, 370 n 4, 856 P2d 311 (1993). Any significant doubts about applicant's character are resolved in favor of protecting the public by denying him admission. In re Jaffee, 319 Or 172, 177, 874 P2d 1299 (1994); In re Easton, 298 Or 365, 367-68, 692 P2d 592 (1984).

In its recommendation to this court, the Board identified the following findings of the three-member panel that the full Board believed demonstrated applicant's lack of good moral character and fitness to practice law in Oregon:

"(A) He disobeyed a court order to pay child support.

"(B) He was suspended for over a year in the State of California for failure to pay child support.

"(C) He failed to inform the Board that he was suspended from the practice of law in the State of California and he lied to the Board about his suspension in California, stating that he was not suspended when he was in fact suspended.

"(D) He loaned money to a client, Tamara Varner ('Varner'), and collected on the loan from settlement proceeds from Varner's lawsuit without Varner's knowledge or agreement.

"(E) He signed Varner's name to a release without Varner's knowledge and without advising the opposing party or counsel for the opposing party that he was signing the release on behalf of Varner. On that same release he signed as a witness, attesting to the authenticity of Varner's signature.

"(F) He lied by omission to the Board when he told it that he did not notarize the Varner settlement document.

"(G) He endorsed Varner's name to the settlement check without Varner's knowledge and without advising the bank that he was doing so.

"(H) He retained all of the proceeds of the settlement without Varner's knowledge or agreement.

"(I) He failed to respond to a notice from the Committee on Arbitration of the Los Angeles County Bar Association that Varner was disputing his fee and that there would be an arbitration of the dispute. He also failed to appear at the hearing.

"(J) He failed to advise the Board of the fee dispute or the award in favor of Varner and against him in the amount of $10,000.

"(K) He wrote a letter to Varner after entry of the award against him wherein he misrepresented the law and threatened to sue her if she did not agree to settle with him for $500.

"(L) He destroyed all of his files for all of the cases he handled in California.

"(M) A judgment was entered in California against him in the amount of $34,000 for malicious prosecution.

"(N) He lied by omission to the Board when in his application for admission he stated that the judgment for malicious prosecution was reversed, but did not state that it was reversed by stipulation of the parties rather than on the merits.

"(O) He failed to inform the Board about a lawsuit to which he was a party and which settled in applicant's favor for the amount of approximately $41,000.00.

"(P) On May 16, 1997, he issued subpoenas on which he holds himself out to be an attorney practicing in Oregon.

"(Q) Applicant failed to inform the Board about a lawsuit in which applicant was a plaintiff in an attorney fee dispute.

"(R) Applicant failed to inform the Board that a motion for sanctions was made against him for appearing at a deposition while carrying a concealed weapon and that a sanction was assessed against him in the amount of $750."

We need not address each of those specific allegations. As we explain below, we find that applicant failed to disclose to the Board his suspension by the California State Bar, and he made false representations to the Board regarding the Varner settlement agreement. Each of these acts, standing alone, would be a sufficient ground for denying his application to practice law in Oregon. Any further discussion of the remaining allegations against applicant would not benefit bench or bar.

We first discuss applicant's failure to disclose his suspension by the California State Bar. The status of an applicant's bar membership in another jurisdiction is material information required by the Board in making an evaluation of that applicant's character and fitness to practice law in Oregon. That information, along with a certificate of good standing, is required in the original application for admission to practice law. RFA 4.15(3).

Applicant was an active member of the California State Bar when he filed his application to practice law in Oregon. At some point after making his application, applicant voluntarily transferred to inactive status in California. On July 31, 1995, after that voluntary transfer to inactive status, applicant was suspended by the California State Bar for failing to pay child support. Applicant failed to disclose his suspension to the Board; the Board discovered it during its investigation of applicant's character and fitness. Applicant repeatedly denied that his California Bar status had changed until the Board produced documents demonstrating that the California State Bar had suspended him for failure to obey a court order to pay child support.

It is essential that every applicant to practice law in Oregon fully disclose to the Board all information relevant to the applicant's character and fitness. Failure to disclose relevant information fully and candidly is a ground for the Board to recommend denial of admission. RFA 6.05(3). It also forms a basis for this court to deny admission. In re Parker, 314 Or 143, 154-55, 838 P2d 54 (1992). Applicant was on notice of his obligation to disclose relevant information to the Board, both through the Rules for Admission of Attorneys and through the application itself, on which applicant acknowledged, by signature and under oath, his duty to disclose. Applicant's disclosure fell short of the degree of disclosure that he acknowledged to be required of him. Because it raises significant doubts about his good moral character, applicant's failure to disclose his suspension by the California State Bar constitutes a sufficient ground for denial of his application to practice law in Oregon. In re Monaco, 317 Or at 369-71; In re Parker, 314 Or at 154-55.

We turn to applicant's representation of Tamara Varner. Applicant represented Varner in a variety of legal matters while he was an active member of the California State Bar. The last matter in which he represented her was a personal injury auto accident case in which Varner was the plaintiff.

The attorney-client relationship between applicant and Varner was governed by a written fee agreement. Applicant destroyed the Varner fee agreement before he moved to Oregon. During the Board's character and fitness investigation, applicant produced a blank, computer-generated agreement that he claimed was identical to the agreement that Varner signed. That blank agreement included a power of attorney provision. Varner disputes applicant's assertion that the agreement that she signed contained a power of attorney provision. Varner further asserts that, if the agreement that she signed did include a power of attorney provision, applicant explained neither the meaning nor the effect of that provision to her.

The defendant's insurance carrier in Varner's auto accident case agreed to a settlement in the amount of $10,000. A release agreement was part of that settlement. The terms of that release agreement required Varner to acknowledge that she had "completely read" and "fully understood" it. By its terms, the release agreement also expressly stated that the release was essential and material to the settlement and that the settlement would not have been entered into by the defendant's insurance carrier without the release. Claiming that he acted on the authority of the power of attorney provision that he asserts was in the Varner fee agreement, applicant acknowledged that he signed Varner's name on the release agreement. Applicant also endorsed Varner's name on the settlement check. Applicant made no disclosure or indication, either on the release documents or orally, that he was signing the release on Varner's behalf. In addition, applicant signed his own name on the release attesting that he witnessed Varner sign that document.(2)

By signing the release agreement and the settlement check, applicant falsely represented to the defendant, the defendant's counsel, the defendant's insurance carrier, and the bank that negotiated the settlement check that Varner personally approved the settlement, endorsed the check, and released the defendant from all claims. Applicant's willingness to make such false representations demonstrates a lack of good moral character. See, e.g., In re Magar, 312 Or 139, 141, 817 P2d 289 (1991) (lawyer's unauthorized endorsement of client's name on draft made out to client constituted behavior involving dishonesty, deceit, or misrepresentation); see also In re Boothe, 303 Or 643, 651-52, 740 P2d 785 (1987) (lawyer's endorsement of client's name, without authorization, on a check on which lawyer and client were joint payees, constituted conduct involving dishonesty, deceit, or misrepresentation); In re Sassor, 299 Or 570, 576, 704 P2d 506 (1985) (lawyer's endorsement, without authorization, of payee's signature on a state property tax refund check and deposit of those funds in lawyer's trust account constituted conduct involving dishonesty, deceit, or misrepresentation). Applicant's testimony before the Board provided no convincing explanations for his misrepresentations in the course of the Varner litigation, and does nothing to resolve our significant doubts regarding applicant's moral character. Those doubts constitute sufficient grounds for denial of his application to practice law in Oregon. In re Monaco, 317 Or at 369-71; In re Parker, 314 Or at 154-55. See also In re Cheek, 246 Or 433, 425 P2d 763 (1967) (applicant who signed name of company president to two checks and lied about damages to a company automobile denied admission).

In a bar admission proceeding, this court's primary responsibility is to the public. Our charge is to assure that those who are admitted to the bar possess the ethical responsibility and the maturity of character necessary to enable them to withstand the many pressures and temptations that will confront them in the practice of law. The record contains overwhelming evidence that applicant does not possess that requisite good moral character and fitness to be a practicing attorney in Oregon. Applicant's brief to this court does little to resolve the doubts raised by the Board about his character. We conclude that applicant has failed to prove by clear and convincing evidence that he is a person of good moral character and fit to practice law in Oregon.

Admission denied.

1. ORS 9.220 provides in part:

"An applicant for admission as attorney must apply to the Supreme Court and show that the applicant:

"* * * * *

"(2)(a) Is a person of good moral character and fit to practice law."

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2. The record also reveals that applicant repeatedly attempted to mislead the Board regarding the Varner settlement release agreement. He failed to produce the release agreement, despite repeated inquiries about it by the Board and his knowledge that the Board deemed the agreement to be critical to the evaluation of his character and fitness. At one point, he denied that there was a release agreement. He later suggested that he already had provided the release agreement to the Board when, in fact, he had not done so. He stated unequivocally that he had not notarized the release, without disclosing that he had attested to witnessing Varner's signature on the release, an act functionally equivalent to notarization.

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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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