S45064 Quintero v. Board of Parole

SUPREME COURT CASES

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State: Oregon

Docket No: CAA97382

Case Date: 09/08/1999

Filed: September 8, 1999

IN THE SUPREME COURT OF THE STATE OF OREGON

ANTONIO QUINTERO, SR.,

Petitioner on Review,

BOARD OF PAROLE AND
POST-PRISON SUPERVISION,

Respondent on Review.

(CA A97382; SC S45064)

On review from the Court of Appeals.*

Argued and submitted June 4, 1999.

Andy Simrin, Deputy Public Defender, Salem, argued the cause and filed the brief for petitioner on review. With him on the brief were David E. Groom, Public Defender, and Anne Morrison, Deputy Public Defender.

Philip Schradle, Assistant Attorney General, Salem, argued the cause for respondent on review. Janet A. Metcalf, Assistant Attorney General, and Kelly Knivila, Assistant Attorney General, filed the brief. With them on the brief were Hardy Myers, Attorney General, and Michael D. Reynolds, Solicitor General.

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

GILLETTE, J.

The order of dismissal of the Court of Appeals is affirmed. The petition for judicial review is dismissed.

*On judicial review of an order of the Board of Parole

and Post-Prison Supervision.

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

GILLETTE, J.

Petitioner seeks review of a Court of Appeals' order dismissing his petition for judicial review of an order of the Board of Parole and Post-Prison Supervision (Board). The order, which was issued after petitioner's parole had been revoked for violating a condition of parole, denied petitioner rerelease and set a new release date some 23 years in the future. When petitioner attempted to challenge the order, the Court of Appeals dismissed his petition for lack of jurisdiction, concluding that, because the order was a "decision relating to a [parole] release date," it was immune from judicial review under ORS 144.335(3), set out post. Petitioner sought review by this court, arguing that the Court of Appeals interpreted ORS 144.335(3) too broadly and that the statute does not apply to the order that he challenges. We accepted review to consider the scope of the bar to review contained in ORS 144.335(3). We conclude that the Court of Appeals correctly construed that statute as barring review of any decision relating to a parole release date, including the order at issue here. Accordingly, we affirm the Court of Appeals' dismissal of petitioner's petition for judicial review.

Petitioner was released on parole in April 1996, after serving seven years in prison for crimes that he committed in 1988. As a condition of parole, petitioner was required to refrain from the use of intoxicants. In October 1996, petitioner's parole officer reported to the Board that petitioner had consumed alcohol on at least two occasions since his release. As a result of that report, petitioner's parole was revoked, and he was returned to prison.

Shortly after his return to prison, the Board conducted a hearing to consider whether to rerelease petitioner immediately or to keep him in prison and set a new release date some time in the future. After the hearing, the Board issued an order denying rerelease and setting a new release date approximately 23 years in the future.

Petitioner requested administrative review, arguing, among other things, that the Board's decision was contrary to statute and to various provisions of the United States Constitution. The Board denied that its actions violated any statute or constitutional provision, and noted that the statutes and rules in effect at the time when petitioner committed his crimes expressly authorized the Board to deny rerelease.

Petitioner filed a petition for judicial review of the Board's order in the Court of Appeals. The state moved to dismiss the petition, arguing that the order was immune from judicial review under ORS 144.335(3). That statute provides, in relevant part:

"(1) When a person over whom the [B]oard exercises its jurisdiction is adversely affected or aggrieved by a final order of the [B]oard related to the granting, revoking or discharging of parole, the revoking of post-prison supervision or the imposition of conditions of parole or of post-prison supervision and after exhaustion of administrative review as provided by [B]oard rule, such person is entitled to judicial review of the final order.

"* * * * *

"(3) Notwithstanding subsection (1) of this section, the [B]oard's order is final and is not subject to judicial review when the [B]oard makes any decision relating to a release date or a parole consideration hearing date, including:

"(a) Setting an initial release date under ORS 144.120, except that the setting of an initial release date under ORS 144.120 remains subject to judicial review if the prison contests the crime severity rating, the history risk score or aggravation factors found by the [B]oard under the rules of the [B]oard.

"(b) Setting a date for a parole consideration hearing under ORS 144.228.

"(c) Setting a release date, or declining to set a release date, after a parole consideration hearing, under ORS 144.228.

"(d) Denying, granting or granting in part a prisoner's request under ORS 144.122 for advancement of the initial release date.

"(e) Referring a prisoner for psychological evaluation under ORS 144.223.

"(f) Postponing a prisoner's release date because of serious misconduct during confinement under ORS 144.125(2).

"(g) Postponing a prisoner's release date because of a psychological diagnosis under ORS 144.125(3).

"(h) Postponing a prisoner's release date because of a prisoner's refusal to submit to a psychological evaluation.

"(i) Denying a prisoner's request under ORS 144.228(1) for an early parole consideration hearing."

The Court of Appeals agreed with the state that the order was not reviewable and dismissed the petition. In its order of dismissal, the court cited its own intervening decision in Luckey v. Board of Parole, 150 Or App 480, 946 P2d 361 (1997). In Luckey, the Court of Appeals had held that ORS 144.335(3) unambiguously expresses a legislative intent that any "decision relating to a release date" be immune from review. Id. at 483.

Petitioner argues in this court that, although the order at issue indisputably is a "decision relating to a release date," it nevertheless falls outside the purview of ORS 144.335(3), because it is not one of the nine specific types of orders that paragraphs (3)(a) through (i) of that statute describe expressly. He contends, in other words, that ORS 144.335(3) does not preclude review of all decisions relating to release dates but, instead, only of the nine specific types of decisions relating to release dates specifically enumerated therein.

Because petitioner raises a question of statutory construction, we proceed under the analytical framework set out in PGE v. Bureau of Labor and Industries, 317 Or 606, 859 P2d 1143 (1993). We begin by examining the text and context of ORS 144.335(3). If the meaning of the statute is clear at that level, our inquiry ends there. Id. at 610-11.

By its express terms, the statute precludes review of "any decision relating to a release date." Read out of context, those words would negate any contention that the legislature had something less than the entire class of decisions of that kind in mind. Petitioner does not deny that that wording appears to comprehend all release date decisions. He relies, instead, on the words that follow that phrase. In his view, the statutory list of orders that begins with the word "including" plausibly may be read as undercutting the wording that precedes it, i.e., it may be read to mean that only the specifically enumerated orders are unreviewable.

Petitioner acknowledges that the most immediately available explanation of the latter portion of the statute is that it provides examples of the variety of orders that are included in the preceding phrase, but argues that that explanation is problematic, because the preceding wording is self-explanatory and because the enumerated orders do not in any way explain or expand upon that wording. Ultimately, petitioner argues, reading the enumerated orders as mere examples adds nothing to the statute: It relegates a whole section of the statute to a state of mere surplusage, a result that is inappropriate, given this court's stated goal of giving effect to every provision of a statute. See, e.g., State v. K. P., 324 Or 1, 8, 921 P2d 380 (1996) (whenever possible, court will construe statute in manner that gives effect to every provision).

Petitioner argues further that, if the list of orders that follows the word "including" is construed to be a specific enumeration of the types of orders for which judicial review is precluded, the foregoing problem is avoided. Such a reading is possible, petitioner contends, because, in some instances, the term "including" can be used as a term of limitation. In fact, petitioner argues, one can infer that the legislature intended the word as a term of limitation in ORS 144.335 from the fact that the statute does not include any wording that would counter such an inference (such as "including, but not limited to"), as the statute ordinarily would be expected to do, if it were enumerating examples of a broader term.

As noted, petitioner acknowledges that there is a plausible, possibly more likely, explanation of that latter part of the statute, viz., that the list merely sets out examples of the variety of orders that are included in the phrase that precedes it. But petitioner suggests that, because his competing theory also is at least plausible, an ambiguity exists at this first level of analysis that must be resolved by proceeding to the second level of analysis -- legislative history. See Martin v. City of Albany, 320 Or 175, 182, 880 P2d 926 (1994) (where most likely reading of text is not only plausible reading, court proceeds to second level of analysis); Weidner v. OSP, 319 Or 295, 301, 877 P2d 62 (1994) (even where one reading of statute is more likely at first level of analysis, court will proceed to second level if another reading is possible).

We do not agree that petitioner's proposed interpretation is plausible. Reading the latter part of ORS 144.335(3) as an exclusive list of orders that are made unreviewable by the statute is directly contrary to the wording that precedes it, viz., the statement that "any decision relating to a release date" is not subject to judicial review. When a reasonable and natural reading of that part of the statute is available that is wholly consonant with the use of the word "any," we cannot hold that a reading that ignores that term is "plausible."

Petitioner suggests that we must accept his interpretation as plausible, because it is the lesser of two evils. In that regard, he contends that it is better to read a single word out of the statute than to relegate fully 80 percent of it to the status of mere surplusage. We find that argument unpersuasive both on a theoretical level and as it applies to this particular statute. As to theory, our response is simple: We do not make decisions about the meaning of a statute by comparing the numbers of words that are affected by the competing interpretations. Furthermore, even if petitioner's argument had some value as a general proposition, it has no relevance to the statute at issue. Reading the latter part of ORS 144.335(3) as a list of illustrative examples does not turn that list into "mere surplusage." Even if the concept of a "decision relating to a release date" is relatively clear, and further description of the kinds of orders included in the concept is not necessary, the legislature reasonably could believe that an illustrative list would be helpful and include it on that basis.

Finally, petitioner contends that the plausibility of his argument is illustrated by the fact that the state took an allegedly inconsistent position about the availability of review under ORS 144.335(3) in Quintero v. Hill (CV98-0824), a related habeas corpus case. Petitioner has moved this court to take judicial notice of various facts and submissions in that case, in the apparent belief that an understanding of the state's arguments in that proceeding might be helpful to this court in its resolution of the present controversy. We disagree. It is for this court, not the Board's legal representatives, to determine what the legislature intended when it enacted ORS 144.335(3). See Lincoln Loan Co. v. City of Portland, 317 Or 192, 199, 855 P2d 151 (1993) (determination of meaning of statute is one of law for the court). In view of that fundamental rule, the fact that the state has taken a certain position elsewhere about the meaning of the statute that is not consonant with the state's position here is not pertinent and, even if it were pertinent, not persuasive.

We conclude that the meaning of ORS 144.335(3) is clear from text and context, and that petitioner's arguments provide no occasion for delving into legislative history or other levels of analysis. See PGE, 317 Or at 611 (when legislature's intent is clear from text and context, further inquiry is unnecessary). On its face, the statute provides that "any decision relating to a release date" is not subject to judicial review.

Petitioner petitioned for judicial review of a decision that, by his own concession, relates to a release date. Because such decisions are not subject to review under ORS 144.335(3), the Court of Appeals correctly dismissed the petition.(1)

The order of dismissal of the Court of Appeals is affirmed. The petition for judicial review is dismissed.

1. Petitioner also argued, on the merits, that the Board's order violates Oregon law. Because we conclude that the order is exempt from review, we do not consider those arguments.

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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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