S44997 State v. Peekema

SUPREME COURT CASES

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State: Oregon

Docket No: CC96C-21139

Case Date: 03/25/1999

FILED: March 25, 1999

IN THE SUPREME COURT OF THE STATE OF OREGON

STATE OF OREGON,

Plaintiff-Relator,

GEORGE THOMAS PEEKEMA,

Defendant-Adverse Party.

STATE OF OREGON,

Plaintiff-Relator,

STEVENS EQUIPMENT COMPANY,

Defendant-Adverse Party.

(CC 96C-21139; CC 96C-21145; SC S44997)

Original proceeding in mandamus.*

Argued and submitted November 3, 1998.

Kaye E. Sunderland, Assistant Attorney General, Salem, argued the cause and filed the brief for plaintiff-relator. With her on the brief were Hardy Myers, Attorney General, and Michael D. Reynolds, Solicitor General.

Joseph D. Robertson, Garrett, Hemann, Robertson, Paulus, Jennings & Comstock, P.C., Salem, argued the cause and filed the brief for defendants-adverse parties.

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

LEESON, J.

Peremptory writ to issue.

*On petition for a writ of mandamus from an order of Marion County Circuit Court, Don A. Dickey, Judge.

**Kulongoski, J., did not participate in the consideration or decision of this case.

LEESON, J.

A jury convicted defendants-adverse parties (defendants) of the misdemeanor offenses of unlawful disposal of hazardous waste in the second degree and unlawful storage of hazardous waste in the second degree. The issue in this original proceeding in mandamus is whether the trial court erred in granting defendants' post-verdict motion to dismiss those charges. For the reasons that follow, we conclude that the trial court lacked authority to dismiss the charges.

Defendant Peekema is an employee of defendant Stevens Equipment Company. Defendants were charged in separate indictments with two counts of unlawful disposal of hazardous waste in the first degree, ORS 468.926,(1) two counts of unlawful storage of hazardous waste in the first degree, ORS 468.926, and two counts of unlawful water pollution in the first degree, ORS 468.946.(2) All of those crimes are felonies. The cases were consolidated for trial.

The statutes under which defendants were charged were enacted in 1993. There were no uniform jury instructions to guide the parties. At the state's request, the parties submitted most of their proposed jury instructions about a week before trial, and the trial court ruled on those proposed instructions. Nonetheless, after all the evidence but before closing arguments, the state, for the first time, requested that the jury also be instructed on the lesser-included misdemeanor offenses of unlawful disposal of hazardous waste in the second degree and unlawful storage of hazardous waste in the second degree. Defendants objected, arguing that they had pursued an "all or nothing" strategy during trial based on the state's pretrial submission of jury instructions on only felony charges.

The trial court found that defendants had relied to their detriment on the state's jury instructions. However, the trial court agreed to instruct the jury on the lesser-included offenses in order "to give the District Attorney an opportunity to appeal this." The court also stated that, if the jury returned guilty verdicts on the misdemeanor charges, it would "consider fixing this in some appropriate way."

The jury found defendant Stevens Equipment Company guilty of one felony count of unlawful storage of hazardous waste and two misdemeanor counts of unlawful disposal of hazardous waste and found defendant Peekema guilty of two misdemeanor counts of unlawful storage of hazardous waste. After the jury returned the verdicts, the trial court stated:

"The verdicts are received and placed in the Court file. I anticipate before we get the judgments in place that there may be some motions. I'll look for something from the defendant[s] probably within the next what? Five days?"

Defendants later filed motions for a new trial, in arrest of judgment, and to dismiss the misdemeanor charges. The trial court granted the motion to dismiss, and this mandamus proceeding followed.

Before turning to the merits, we address defendants' contention that relator State of Oregon's (the state's) petition for a writ of mandamus was not filed timely. The trial court signed the order of dismissal on December 31, 1997, and the clerk entered the order in the register on January 9, 1998. The state filed its petition for a writ of mandamus on February 9, 1998, which was within 30 days of entry of the order in the register. See ORAP 1.25 (computation of time). The state relies on ORS 138.071(1), which provides:

"Except as provided in subsections (2), (3) and (4) of this section, the notice of appeal shall be served and filed not later than 30 days after the judgment or order appealed from was entered in the register."

Defendants contend that the state's petition was not filed timely because a motion to dismiss is like a motion for a new trial or a motion in arrest of judgment, and, therefore, ORS 138.071(2) is the relevant subsection. It provides:

"If a motion for new trial or motion in arrest of judgment is served and filed the notice of appeal shall be served and filed within 30 days from the earlier of the following dates:

"(a) The date of entry of the order disposing of the motion; or

"(b) The date on which the motion is deemed denied, as provided in ORS 136.535."

Defendants argue that a trial court's signature on an order is equivalent to the entry of that order under ORS 138.071(2)(a), so the state had 30 days from December 31, 1997, to file its petition.

The time period within which a party must file a petition for mandamus relief is governed by laches, not by statute. State ex rel Carlile v. Frost, 326 Or 607, 620-21, 956 P2d 202 (1998); State ex rel Fidanque v. Paulus, 297 Or 711, 717-18, 688 P2d 1303 (1984). Nonetheless, laches generally requires that a mandamus proceeding be filed within the statutory time limitation required for the filing of an appeal. See State ex rel Redden v. Van Hoomissen, 281 Or 647, 649-50, 576 P2d 355, reh'g den 282 Or 415 (1978) (reasons for limiting time to 30 days for filing an appeal relevant in determining whether application for writ of mandamus is timely). In determining whether a petition for a writ of mandamus is barred by laches, the court considers whether any delay prejudiced the adverse party. See Paulus, 297 Or at 717-18 (unless satisfactorily explained, delay in application for writ may provide basis for denial, particularly if prejudice to respondent is shown).

A pretrial order of dismissal is one of the orders that the state may appeal from the circuit court to the Court of Appeals. ORS 138.060(1). In this case, the trial court granted defendants' motion to dismiss made after the jury had returned its verdict. The court denied defendants' motion for a new trial and motion in arrest of judgment. Nonetheless, defendants contend that the motion to dismiss in this case should be treated like a motion for a new trial or a motion in arrest of judgment. We disagree. ORS 138.071(1) provides that notices of appeal except those governed by ORS 138.071(2), (3), and (4) are governed by the 30-day period provided for in ORS 138.071(1). Although the motion to dismiss in this case was made post-verdict rather than pretrial, ORS 138.071(1) is the statute that would prescribe the time limit for an appeal after a pretrial order of dismissal. We see no reason, and defendants provide none, for holding that, because defendants' motion to dismiss was made post-verdict, the state should have treated the motion to dismiss in this case as something other than a motion to dismiss in determining how much time it had to file its petition for a writ of mandamus. Consequently, we need not address defendants' argument that, under ORS 138.071(2), the date on which a trial court signs an order is the date on which the order is entered. Moreover, defendants have not alleged or shown that they suffered prejudice by the amount of time that passed before the state filed its petition for a writ of mandamus. We hold that the state's petition for a writ of mandamus was filed timely.

We turn to the merits. The state argues that the trial court erred in granting defendants' post-verdict motion to dismiss the misdemeanor charges. In State ex rel Penn v. Norblad, 323 Or 464, 469-70, 918 P2d 426 (1996), this court held that the only post-verdict motions authorized by statute in criminal cases are a motion for a new trial and a motion in arrest of judgment. Defendants respond that Norblad is distinguishable, because the state's "last minute demand" that the trial court instruct the jury on the lesser-included misdemeanor offenses -- and the trial court's acquiescence to that demand -- violated defendants' rights to due process of law under the Sixth and Fourteenth Amendments to the United States Constitution, and their right to a fair and impartial trial under Article I, section 11, of the Oregon Constitution.

In Norblad, the jury convicted the defendant in the underlying criminal case of multiple criminal charges. The defendant made two post-verdict motions. The first was for a new trial, and the second was to dismiss the case on the ground that he was denied due process of law and did not receive a fair trial. The trial court concluded that it improperly had denied the defendant's pretrial motion to suppress evidence and that the defendant had not received a fair trial, because he had not received materials that the city attorney's office had developed. The trial court granted the defendant's motion to dismiss, relying on ORS 135.755, which provides:

"The court may, either of its own motion or upon the application of the district attorney, and in furtherance of justice, order the proceedings to be dismissed. The reasons for the dismissal shall be set forth in the order, which shall be entered in the register."

This court issued a peremptory writ of mandamus directing the trial court to vacate the judgment of dismissal and to enter judgment on the convictions. The court held that the only post-verdict motions authorized by statute in criminal cases are a motion for a new trial and a motion in arrest of judgment. 323 Or at 469-70; see also State v. Metcalfe, 328 Or 309, 314, ___ P2d ___ (1999) (post-verdict motion for judgment of acquittal not authorized by statute); State ex rel Redden v. Davis, 288 Or 283, 291, 604 P2d 879 (1980) (court not authorized to grant judgment of acquittal after jury has returned verdict even when trial court finds insufficient evidence to support verdict).

As noted above, defendants contend that Norblad does not control here because of the trial court's "improper" instructions on the lesser-included offenses. We disagree. The defendant in Norblad argued that he was entitled to have the charges dismissed post-verdict because he "did not receive a fair trial and was not afforded due process." 323 Or at 466. Defendants make the same argument here. The trial court in Norblad dismissed the charges post-verdict in part because the court believed that it had erred in denying the defendant's pretrial motion to suppress. Similarly, the trial court in this case granted defendants' motion to dismiss because it believed that the lesser-included-offense jury instructions rendered the jury's verdicts invalid.

Whether the trial court erred in giving the lesser-included-offense jury instructions is a matter that defendants may assign as error on appeal. See State v. Farrar, 309 Or 132, 167-68, 786 P2d 161 (1990) (addressing the defendant's claim that the trial court erred as a matter of law in refusing to give the defendant's requested instructions on a lesser-included offense). Defendants must pursue their ordinary appellate remedies for an asserted error regarding jury instructions. Defendants' attempt to attack the validity of the jury's verdict in this proceeding is unavailing in light of the availability of appellate review of the alleged error in jury instructions.

We conclude that defendants' attempt to distinguish Norblad is unavailing. The trial court lacked authority to grant defendants' motion to dismiss the misdemeanor charges after the jury had returned guilty verdicts on those charges.

A peremptory writ of mandamus shall issue, directing the circuit court to vacate the order granting defendants' motion to dismiss the misdemeanor charges, to enter judgments on the jury verdicts, and to sentence defendants accordingly.

Peremptory writ to issue.

1. ORS 468.926 provides, in part:

"(1) A person commits the crime of unlawful disposal, storage or treatment of hazardous waste in the first degree if the person, in violation of ORS 466.095 or 466.100 or any rule, standard, license, permit or order adopted or issued under ORS 466.020, 466.095 or 466.100, knowingly disposes of, stores or treats hazardous waste and:

"(a) As a result, recklessly causes substantial harm to human health or the environment; or

"(b) Knowingly disregards the law in committing the violation."

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2. ORS 468.946 provides, in part:

"(1) A person commits the crime of unlawful water pollution in the first degree if the person, in violation of ORS chapter 468B or any rule, standard, license, permit or order adopted or issued under ORS chapter 468B, knowingly discharges, places or causes to be placed any waste into the waters of the state or in a location where the waste is likely to escape or be carried into the waters of the state and:

"(a) As a result, recklessly causes substantial harm to human health or the environment; or

"(b) Knowingly disregards the law in committing the violation."

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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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