S45040 Shubert v. Blue Chips

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State: Oregon

Docket No: WCB94-08858

Case Date: 08/24/2000

Filed: August 24, 2000

IN THE SUPREME COURT OF THE STATE OF OREGON

In the Matter of the Compensation of
Milan F. Shubert, Claimant.

MILAN F. SHUBERT,

Petitioner on Review,

BLUE CHIPS
and SAIF CORPORATION,

Respondents on Review.

(WCB 94-08858; CA A89283; SC S45040)

On review from the Court of Appeals.*

Argued and submitted March 5, 1999.

Meagan A. Flynn, Portland, argued the cause for petitioner on review. With her on the brief were Robert W. Pardington and Pozzi, Wilson, Atchison, LLP, Portland.

Julene M. Quinn, Salem, argued the cause and filed the brief for respondents on review.

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

GILLETTE, J.

The decision of the Court of Appeals is reversed. The order of the Workers' Compensation Board is reversed and the case is remanded to the Workers' Compensation Board with instructions to remand the case to the Director of the Department of Consumer and Business Services for further proceedings.

*Judicial review from the Workers' Compensation Board.

151 Or App 710, 951 P2d 172 (1997).

**Kulongoski, Leeson, and Riggs, JJ., did not participate in the consideration or decision of this case.

GILLETTE, J.

In this workers' compensation case, claimant seeks review of a Court of Appeals decision affirming the denial of his claim for an additional award of permanent partial disability (PPD) for a shoulder condition. The denial was based on a temporary administrative rule that assigned a value of zero to any disability attributable to certain surgical procedures that claimant had undergone. Claimant asserts that the rule is inconsistent with ORS 656.726(4)(f)(C), (1) the statute under which it was adopted. The Court of Appeals held that claimant's argument was not well taken. Shubert v. Blue Chips, 151 Or App 710, 951 P2d 172 (1997). For the reasons that follow, we reverse the decision of the Court of Appeals.

The following facts are supported by substantial evidence in the record. See ORS 183.482(8)(c) (setting out "substantial evidence" standard). Claimant injured his shoulder in a 1987 industrial accident and received workers' compensation benefits, including a PPD award. Several years later, claimant underwent a procedure called a "Bristow" surgery to repair his shoulder. After that surgery, claimant's original PPD award was adjusted upward to 17 percent.

Claimant continued to have problems with his shoulder. Eventually, claimant's treating physician determined that those continuing problems were being caused by a screw that had been inserted in claimant's shoulder during the Bristow surgery. The doctor recommended additional surgery to remove the screw. Claimant followed that recommendation and simultaneously filed an aggravation claim, which was closed by a July 30, 1991, determination order. That order did not award claimant any additional PPD.

Claimant sought reconsideration of the determination order and, in particular, its failure to award additional PPD. Claimant argued that he never had been compensated for the residual impairment attributable to the Bristow and screw removal surgeries, and that the Director of the Department of Consumer and Business Services (the Director and the Department, respectively) should adopt a temporary rule evaluating that residual impairment under ORS 656.726(4)(f)(C). (2) That statute provides:

"When, upon reconsideration of a determination order or notice of closure * * * it is found that the worker's disability is not addressed by the standards adopted pursuant to this paragraph, * * * the director shall stay further proceedings on the reconsideration of the claim and shall adopt temporary rules amending the standards to accommodate the worker's impairment."

Claimant enclosed a medical report by a Dr. Brenneke with his reconsideration request. The report assigned a residual impairment value of 10 percent to the two surgeries, without identifying or describing the nature of the impairment. Claimant also enclosed a letter from his treating physician concurring in Brenneke's report. However, without addressing claimant's request for a temporary rule, the Department affirmed its previous "no PPD" order.

A workers' compensation administrative law judge (ALJ) affirmed the Department's order, holding that a temporary rule was not required. However, on further review, the Workers' Compensation Board (Board) concluded that, under ORS 656.726(4)(f)(C), a temporary rule was required. Based on Brenneke's report, the Board stated in its opinion that "claimant ha[d] suffered permanent impairment as a result of the surgical repair of a compensable subluxing shoulder condition" and that the "surgical procedure and resulting impairment [had not] been addressed by the applicable standards." Accordingly, the Board remanded to the Director for the adoption of a temporary rule to address the residual effects of claimant's shoulder surgery.

On remand, the Director adopted a temporary rule that stated, in part:

"This worker underwent Bristow repair and malleolar screw removal in the left shoulder. * * * Bristow repair of a dislocated shoulder improves the function of the shoulder and reduces the chance of dislocation. Removal of the screw fixation device does not result in recognized loss of shoulder function. In this case, the impairment value for these procedures shall be a value of zero."

Claimant challenged that temporary rule before the Hearings Division, arguing that, under ORS 656.726(4)(f)(C), the Director could not adopt a temporary rule that assigned an impairment value of zero to the effects of his surgeries. To do so, claimant argued, effectively would ignore what claimant believed already had been decided by the Board -- that the surgeries had resulted in impairment that must be "accommodated" under ORS 656.726(4)(f)(C). However, the ALJ and, later, the Board, held that it was for the Director to adopt disability standards under ORS 656.726(4)(f)(C) and that neither the Hearings Division nor the Board could "correct" the Director's actions in that regard. The Board held, moreover, that the temporary rule was not inconsistent with the statute:

"Here, pursuant to our remand order, the Director found that claimant's left shoulder [surgeries were] not addressed by the standards. Our order did not determine whether or not claimant had a rat[e]able impairment as a result of the surgery, but merely determined that the surgical procedure was not addressed by the Director's 'standards' * * *.

"As a result of our order, the Director promulgated a temporary rule * * * which addressed the surgery. Applying the temporary rule, the Director found that claimant was not entitled to an impairment value for the surgical procedure. This action was within the Director's authority pursuant to ORS 656.726([4)](f)(C)."

On claimant's petition for judicial review of the Board's decision, a divided Court of Appeals affirmed. The court's majority agreed with the Board that the Board had no authority to substitute its own views regarding disability standards for those of the Director. Shubert, 151 Or at 714-15. It also agreed that the Board had not found that claimant's surgery had resulted in permanent impairment and that the Director's rule, assigning the surgeries an impairment rating of zero, was not inconsistent with the findings that the Board had made. Id. at 715-16. We allowed claimant's petition for review.

Before this court, claimant argues, as he did below, that a "zero" impairment rating inherently is contrary to the policy expressed in ORS 656.726(4)(f)(C). Taking his cue from the Court of Appeals' dissent, claimant focuses on the direction in ORS 656.726(4)(f)(C) that the existing rules be amended to "accommodate" the impairment at issue. Claimant explains that a zero impairment rule cannot be reconciled with the concept of accommodation, because such a rule essentially denies that any impairment or, at least, any impairment that also is a disability, exists. (3)

Claimant contends that the fact that the Director adopted a rule to address claimant's condition at all establishes that that condition is a disability and, therefore, a ratable impairment. That is so, claimant argues, because the Director is authorized to adopt a temporary rule only when the Director finds that the condition at issue is a disability, i.e., an impairment that merits a disability award -- and, by inference, a positive impairment value -- that is not addressed by existing standards. Therefore, claimant concludes, a zero impairment rule is inherently inconsistent with ORS 656.726(4)(f)(C), because it denies the very fact under which the Director's authority to adopt a temporary rule under ORS 656.726(4)(f)(C) arose in the first place.

We are not persuaded by that logic. ORS 656.726(4)(f)(C) requires the Director to adopt a temporary rule when "it is found that a worker's disability is not addressed by [existing] standards." But "disability" cannot be "found" in the way that an ordinary fact would be found. Rather, disability is a legal conclusion that arises out of the medical fact of impairment in combination with pertinent legal criteria. See Russell v. SAIF, 281 Or 353, 357 n 4, 574 P2d 653 (1978) (law concerns disability that results from impairment, a medical concept); see also ORS 656.726(4)(f)(A) (criteria for evaluation of disability shall be permanent impairment modified by factors of age, education, and adaptability). If the Director concludes that the condition at issue is not an impairment (or, at least, not one that is entitled to a positive impairment rating), then the condition is not a disability and no temporary rule is required by ORS 656.726(4)(f)(C). However, the Director nevertheless might wish to explain his or her thinking in that regard. At least in theory, the Director can do so in two ways. First, the Director simply might announce that no temporary rule is required, because he or she has concluded that the condition at issue is not a disability. Alternatively, the Director could adopt a temporary rule that assigns to the condition an impairment value of zero. Either way, the Director would be announcing a legal conclusion that he or she must make to determine his or her obligations under ORS 656.726(4)(f)(C). Either way, the courts then could review the conclusion for legal error. We see nothing in either the wording or the logic of the statute that would preclude the Director from announcing his or her choice through the temporary rule device.

Claimant also argues that the temporary rule is contrary to ORS 656.726(4)(f)(C), because it purports to assign an impairment value to a surgical procedure qua procedure, rather than to the specific impairment that claimant suffered as a result of that procedure. Claimant notes that, by its express terms, ORS 656.726(4)(f)(C) contemplates case-specific accommodation of the worker's impairment. Claimant further notes that the clear purpose of ORS 656.726(4)(f)(C) is to ensure that claimants with atypical disabilities receive consideration, even if the existing disability standards do not address their particular conditions. Claimant contends that the present rule addresses the screw removal procedure as a categorical matter and, therefore, is responsive neither to the express words of the statute nor to its purpose.

We agree with claimant that, if the Director finds that a worker suffers from an impairment that results in disability and that that disability is not addressed by existing standards, then the Director must promulgate a rule that addresses the worker's particular impairment. The Director cannot escape that duty by, for example, making some categorical pronouncement about the ordinary and expected effects of the event that caused the impairment.

We now apply the foregoing principle to the rule adopted by the Director in the present case. The Director's response to claimant's condition turned on the following two sentences: "Bristow repair of a dislocated shoulder improves the function of the shoulder and reduces the chance of dislocation. Removal of the screw fixation device does not result in recognized loss of shoulder function." The first sentence is a general observation about the intent of performing a Bristow repair; it does not purport to address claimant's particular circumstance at all. When considered with that first sentence, the second sentence also turns out to be an abstract statement: Its use of the present tense (repair "does not result" in recognized loss of shoulder function) demonstrates that the sentence purports to be a generalized statement concerning the expected medical outcome of the procedure. That sentence is not a response either to the specific surgery that claimant underwent or to the sequellae of that surgery.

The Director's failure to address claimant's personal circumstances, as opposed to the generality of circumstances attendant upon the two kinds of surgeries, means that the Director's temporary rule was unresponsive as a matter of law. The Director thus has not yet performed the function contemplated by ORS 656.726(4)(f)(C) with respect to claimant's condition. The contrary conclusions of the Court of Appeals and the Board were in error.

1. At the time that this case began, the statute was numbered ORS 656.726(3)(f)(C). In 1999, the legislature renumbered the statute. Or Laws 1999, ch 876,

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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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