S44998 Bradbury v. Teacher Standards and Practices Comm.

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State: Oregon

Docket No: CC93C-13251

Case Date: 04/08/1999

Filed: April 8, 1999

IN THE SUPREME COURT OF THE STATE OF OREGON

LESLIE R. BRADBURY,

Respondent on Review,

TEACHER STANDARDS AND PRACTICES COMMISSION,

Petitioner on Review,

and

STEVEN R. WELKER,

Defendant.

(CC 93C-13251; CA A90766; SC S44998)

On review from the Court of Appeals.*

Argued and submitted November 3, 1998.

Robert M. Atkinson, Assistant Attorney General, Salem, argued the cause for petitioner on review. With him on the brief were Hardy Myers, Attorney General, Michael D. Reynolds, Solicitor General, and Erika A. Hadlock Assistant Attorney General.

James M. Brown, Salem, filed the brief and argued the cause for respondent on review.

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

RIGGS, J.

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

* Appeal from Marion County Circuit Court,

Albin W. Norblad, Judge.

151 Or App 176, 947 P2d 1145 (1997).

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

RIGGS, J.

In this tort case, plaintiff appeals from a judgment entered after the trial court dismissed his complaint as time-barred. ORCP 21 A(9). The issue is whether the trial court erred in concluding that plaintiff's complaint alleges defamation, which is governed by a one-year statute of limitations. ORS 12.120(2). The Court of Appeals reversed. Bradbury v. Teacher Standards and Practices Comm., 151 Or App 176, 947 P2d 1145 (1997). We affirm the decision of the Court of Appeals.

Because this case is before us on a motion to dismiss, we assume the truth of all well-pleaded facts alleged in the complaint and give plaintiff, as the nonmoving party, the benefit of all favorable inferences that may be drawn from those facts. Downs v. Waremart, Inc., 324 Or 307, 309, 926 P2d 314 (1996).

Plaintiff's complaint contains the following factual allegations. At all times relevant to this case, plaintiff was employed as a public school superintendent. Defendant Teacher Standards and Practices Commission (TSPC) is a state agency that licenses teachers and public school administrators. In 1991, TSPC received a complaint accusing plaintiff of sexual involvement with a school district staff member. Under ORS 342.176, TSPC is required to investigate such complaints.

TSPC assigned defendant Welker to investigate the complaint against plaintiff. Welker began an investigation under the direction and supervision of TSPC. In November 1991, Welker prepared a detailed report of the results of his investigation and presented it to TSPC. Welker reported that he found no factual support for the allegation against plaintiff but nevertheless believed that the allegation was true. He also provided details about a previously unreported allegation that plaintiff had sexually assaulted a staff member in 1977.

Based on Welker's report, TSPC drafted charges against plaintiff and began proceedings to address those charges. Copies of Welker's report were mailed to plaintiff and to TSPC's 17 members. After reviewing the report and receiving witness statements, TSPC dismissed the charges against plaintiff on January 31, 1992.

Because the charges against plaintiff were dismissed, Welker's report remained confidential under ORS 342.176(4).(1) Nevertheless, in June 1992, Welker gave a copy of the report to a third party, who in turn gave copies to members of the school board in plaintiff's district.

More than one year but less than two years later, plaintiff sued TSPC, alleging that TSPC negligently supervised Welker during and after his investigation and that, as a result, Welker made public a report of the investigation that should have been kept confidential, causing plaintiff damage.(2) In addition to the facts summarized above, plaintiff's complaint alleged: "12. ORS 342.176(4) required that all documents and materials used in Welker's investigation and the recommendation of TSPC's Executive Secretary be kept confidential unless and until a final determination is made by TSPC that the accused had violated statutory provisions. At all times material the charge against plaintiff, Welker's investigation and any and all related documents were confidential. "13. Before June 1, 1992, Welker furnished a copy of his investigation report to a third party known to be antagonistic toward plaintiff. "* * * * * "16. Defendant TSPC was negligent in its supervision of Welker in that while it knew, or in the exercise of reasonable care should have known, that Welker was inexperienced as a TSPC investigator, that he had formed opinions negative toward plaintiff and that he was receiving requests from third parties for information regarding his investigation, his report and the action by TSPC, it failed to instruct Welker upon the requirements of confidentiality and to observe Welker's control of his investigative file to prevent disclosure to third parties. "17. As a consequence of TSPC's negligence plaintiff was exposed to the foreseeable and unreasonable risk that false information prepared in a manner and form appearing official, credible and authentic and damaging to plaintiff would be disclosed to third parties. "18. As the direct and proximate cause of TSPC's negligence plaintiff has been subjected to loss of public esteem, respect, goodwill and confidence and has been disgraced and degraded."

Under ORCP 21 A(9), TSPC moved to dismiss plaintiff's complaint as time-barred. TSPC argued that, although presented as a negligence action, plaintiff's claim in fact alleged defamation, and the one-year statute of limitations for defamation therefore applied. The trial court agreed and dismissed the action, relying on this court's opinion in Coe v. Statesman-Journal Co., 277 Or 117, 560 P2d 254 (1977). In Coe, the plaintiff sought recovery of damages for the negligent publication of false information about him. The plaintiff argued that, because the publication was negligent and not intentional, his claim should be governed by the two-year statute of limitations for negligence, not the one-year statute of limitations for defamation. This court disagreed and held that the defamation statute of limitations applied to all actions for defamation, even those based on negligent conduct. In other words, the plaintiff could not secure the benefit of a longer statute of limitations merely by alleging that the defamatory act was performed with a less culpable state of mind -- negligence -- than would be present in the case of intentional defamation. Id. at 120.

In this case, the Court of Appeals reversed the trial court's dismissal. First, the court concluded that "plaintiff's claim against TSPC is a claim based on release of confidential information and not defamation." Id. at 181. Second, the court concluded that, even if the underlying wrong of which plaintiff complained was the release of defamatory statements by the investigator, the complaint still should not be dismissed, because, unlike in Coe, this was not a case in which a claimant was "disguising the nature of his claim to avoid defamation's one-year statute of limitation. Rather, his action is best understood as an action for negligent supervision * * *." Bradbury, 151 Or App at 183.

As a preliminary matter, we emphasize that this case is on review from the trial court's grant of TSPC's motion to dismiss. Accordingly, our review is limited to the pleadings. Our sole task on review is to determine whether the pleadings, construed liberally, ORCP 12 A, fairly may be read to allege a tort, other than defamation, to which a statute of limitations longer than one year applies. If so, the complaint is sufficient to survive TSPC's motion to dismiss.

TSPC argues that this case is governed by ORS 12.120(2), and suggests that our task simply is to construe the language of that statute, which establishes the statute of limitations for defamation claims. ORS 12.120(2) provides: "An action for libel or slander shall be commenced within one year."

TSPC is incorrect. The appropriate inquiry is to determine whether plaintiff's complaint only may be read as alleging defamation, or whether the complaint reasonably may be read as also alleging a tort or breach of duty other than defamation. To answer that question, we look only to plaintiff's complaint.

As noted, plaintiff's complaint alleges both negligent supervision and a violation of a statutory duty of confidentiality, whether or not it also may be read as alleging defamation. TSPC nevertheless argues that we must look to the underlying wrong of which plaintiff complains. According to TSPC, that wrong is defamation. If we do not look beyond plaintiff's characterization of his action, TSPC argues, future plaintiffs will be able to avoid the defamation statute of limitations simply by suing supervisors for negligently allowing their subordinates to commit defamation. According to TSPC, that result would gut the one-year limitation in ORS 12.120(2) and contradict this court's holding in Coe.

That argument aids TSPC in this case only if we agree that plaintiff's complaint can only be read as alleging that Welker's underlying tortious act was defamation. We do not. A liberal reading supports plaintiff's contention that the complaint alleges that Welker's wrongful act was a tortious breach of the statutory duty to accord certain persons confidentiality under ORS 342.176(4). As noted, ORS 342.176(4) provides that documents, materials, and reports used in TSPC disciplinary investigations must be kept confidential unless and until TSPC has determined that the person subject to the investigation has committed a violation. Plaintiff's complaint alleges in paragraph 12 that Welker's report and other documents were required to be kept confidential by ORS 342.176(4); in paragraphs 13 and 14, the complaint alleges Welker gave a copy of his confidential report to a third party who, in turn, gave it to others; in paragraph 16, the complaint alleges that TSPC "failed to instruct Welker upon the requirements of confidentiality and to observe Welker's control of his investigative file to prevent disclosure to third parties"; and in paragraphs 18 and 19, the complaint alleges that plaintiff was damaged thereby. Taken together, those portions of the complaint allege both negligent supervision and violation of ORS 342.176(4). Because the legislature has not specifically provided a statute of limitations for claims alleging a tortious breach of ORS 342.176(4), such claims are governed by the two-year statute of limitations contained in ORS 12.110(1).(3)

TSPC argues, however, that, because plaintiff alleged that the substance of the charges in Welker's report was false as well as confidential, his claim must be viewed as one for defamation. Specifically, TSPC directs us to paragraph 17 of plaintiff's complaint, which states in part that "[a]s a consequence of TSPC's negligence plaintiff was exposed to the foreseeable and unreasonable risk that false information * * * damaging to plaintiff would be disclosed to third parties." (Emphasis added.) The fact that plaintiff insists that the confidential statements were false, TSPC argues, means that his complaint alleges damage to reputation from publication of false information. Under Coe, TSPC concludes, such complaints must be raised in a defamation claim or not at all.

We disagree. It is the nature of the conduct complained of -- the predominant characteristic of the action -- that identifies the tort. Lindemeier v. Walker, 272 Or 682, 684, 538 P2d 1266 (1975). The predominant characteristic of the conduct of which plaintiff complains is the release of confidential information from a TSPC disciplinary investigation in violation of ORS 342.176(4). That statute does not differentiate between true and false information from TSPC investigations; all documents and materials used in such investigations are to be kept confidential. The duty of confidentiality imposed by the statute can be violated by the release of true information, false information, or a combination of the two.

Coe is not to the contrary. There, the plaintiff identified no breach of legal duty other than the duty not to publish defamatory statements. He argued that a different statute of limitations should apply to negligent defamation than applies to intentional defamation. Coe, 277 Or at 119. Here, by contrast, plaintiff has alleged a breach of a distinct legal duty, the duty of confidentiality contained in ORS 342.176(4).

In sum, liberally construed, plaintiff's complaint alleges a tort other than defamation. The two-year statute of limitations in ORS 12.110(4) applies to that claim. Accordingly, the complaint was sufficient to survive TSPC's motion to dismiss. Because we resolve the case on that basis, we need not address the additional reasons for reversal presented in the Court of Appeals' decision.

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

1. ORS 342.176(4) provides:

"The documents and materials used in the investigation and the report of the executive director are confidential and not subject to public inspection unless [TSPC] makes a final determination that the person charged has violated ORS 342.143 or ORS 342.175."

Return to previous location.

2. Plaintiff also sued Welker, seeking recovery for false light invasion of privacy. Welker confessed judgment and is not a party to this appeal.

Return to previous location.

3. ORS 12.110(1) provides, in part: "An action for * * * any injury to the person or rights of another, not arising on contract, and not especially enumerated in this chapter, shall be commenced within two years * * *."

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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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