S45209 In re Koliha

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S45209 In re Koliha

State: Oregon

Docket No: OSB96-169

Case Date: 07/21/2000

Filed: July 21, 2000

IN THE SUPREME COURT OF THE STATE OF OREGON

In re Complaint as to the Conduct of
LeANNE L. KOLIHA,

Accused.

(OSB 96-169; SC S45209)

En Banc

On review of the decision of a trial panel of the Disciplinary Board.

Submitted on the record April 14, 2000.

Martha M. Hicks, Assistant Disciplinary Counsel, Lake Oswego, for the Oregon State Bar.

No appearance contra.

PER CURIAM

The accused is suspended from the practice of law for a period of one year, commencing 60 days from the date of the filing of this decision.

PER CURIAM

The Oregon State Bar (Bar) charged the accused by formal complaint with violating ORS 9.160 (engaging in the unlawful practice of law), (1) Code of Professional Responsibility Disciplinary Rule (DR) 1-102(A)(3) (engaging in conduct involving dishonesty, fraud, deceit, or misrepresentation), (2) DR 1-102(A)(4) (engaging in conduct prejudicial to the administration of justice), (3) DR 3-101(B) (engaging in the unlawful practice of law), (4) and DR 1-103(C) (failing to cooperate during disciplinary investigation). (5) The accused was served personally with a copy of the complaint and notice to answer. She failed to file an answer or to make any appearance throughout these proceedings. (6)

A trial panel of the Disciplinary Board entered an order finding the accused in default. Bar Rule of Procedure (BR) 5.8(a). (7) Thereafter, the trial panel deemed the allegations in the formal complaint to be true and held a hearing solely on the issue of sanction. The trial panel suspended the accused from the practice of law for one year.

ORS 9.536(2) requires this court to review the trial panel's decision. See also BR 10.1 (same). We review de novo. ORS 9.536(3); BR 10.6. The accused did not file a brief or make any appearance in this court. We granted the Bar's motion to submit the matter on the record without oral argument. ORAP 11.25(3)(b). For purposes of review, because the accused defaulted, we deem the allegations contained in the Bar's complaint to be true. In re Crist, 327 Or 609, 612, 965 P2d 1023 (1998).

The Bar's formal complaint against the accused alleged, in part:

"3.

"On or about July 6, 1993, the Accused was suspended from the practice of law in the State of Oregon and was, at all relevant times herein, not an active member of the Oregon State Bar.

"4.

"Prior to June, 1995, the Accused undertook to represent Allen Mackey (hereinafter referred to as "Mackey") in a conservatorship/guardianship proceeding pending in Grant County, Oregon. During this representation, the Accused rendered legal advice to Mackey.

"5.

"On or about June 6, 1995, the Accused drafted a Petition to Block Accounts on her pleading paper for Mackey's signature. On or about June 6, 1995, the Accused corresponded with opposing counsel on Mackey's behalf and filed the Petition to Block Accounts with the Oregon Circuit Court in Grant County.

"6.

"On October 17, 1995, the Accused appeared on Mackey's behalf at a telephone hearing in Case No. 94-11324PR, Circuit Court, State of Oregon, County of Grant. In so appearing the Accused held herself out to the court as an active member of the Oregon State Bar and eligible to practice law in this state when she was not.

"* * * * *

"10.

"On June 7, 1996, the Oregon State Bar received a complaint concerning the Accused's conduct. On June 14, 1996 and July 26, 1996, the Disciplinary Counsel's Office forwarded a copy of the complaint to the Accused and requested her response to it. The Accused responded on September 13, 1996.

"11.

"On September 20, 1996, October 4, 1996, and October 18, 1996, the Disciplinary Counsel's Office requested the Accused's response to specific questions with regard to her conduct. The Accused made no response.

"12.

"On June 25, 1997 and July 29, 1997, a member of the Baker/Grant [C]ounty Local Professional Responsibility Committee (LPRC) contacted the Accused by mail and by telephone and requested her response to the complaint. The Accused made no response.

"13.

"While the subject of a disciplinary investigation, the Accused failed to cooperate with the Disciplinary Counsel's Office and with LPRC which are empowered to investigate or act upon the conduct of lawyers."

On the basis of the Bar's formal complaint and the accused's default, we agree with the trial panel that the accused violated ORS 9.160, DR 1-102(A)(3), DR 1-102(A)(4), and (as corrected) DR 3-101(B), by representing a client in an Oregon circuit court proceeding while not an active member of the Oregon State Bar. We also agree with the trial panel that the accused violated DR 1-103(C), by failing to cooperate with the Bar's inquiries regarding her misconduct.

We next determine the appropriate sanction. This court refers to the American Bar Association's Standards for Imposing Lawyer Sanctions (1991) (amended 1992) (ABA Standards) for guidance in determining the appropriate sanction. In re Howser, 329 Or 404, 412, 987 P2d 496 (1999). Under the ABA Standards, the court uses three factors to make an initial determination of the appropriate sanction: (1) the duty violated; (2) the accused's mental state; and (3) the actual or potential injury caused by the accused's misconduct. ABA Standard 3.0. The court then considers any aggravating or mitigating circumstances that are present to determine whether that initial determination should be adjusted. In re Devers, 328 Or 230, 241, 974 P2d 191 (1999); ABA Standard 3.0. Finally, the court also considers the conduct of the accused in light of prior case law. In re Huffman, 328 Or 567, 588, 983 P2d 534 (1999).

We first consider the duties that the accused violated. By practicing law during a period of suspension, the accused violated her duty to the public and as a professional to refrain from the unauthorized practice of law. ABA Standards 5.0 and 7.0. She also violated her duty to the court by failing to disclose that she was suspended from the practice of law. ABA Standard 6.0. Finally, she violated her duty as a professional by failing to respond to inquiries from both the Disciplinary Counsel's Office and the Local Professional Responsibility Committee (LPRC). ABA Standard 7.0.

We turn next to the mental state of the accused. The ABA Standards provide that a lawyer acts with "intent" if he or she has a "conscious objective or purpose to accomplish a particular result." ABA Standards at 17. A lawyer acts with "knowledge" if he or she has a "conscious awareness of the nature or attendant circumstances of the conduct," but does not have a "conscious objective or purpose to accomplish a particular result." Id.

The accused is presumed to know that the law requires a person who practices law in Oregon to be an active member of the Oregon State Bar. Devers, 328 Or at 241. In this matter, the accused's representation of Mackey took place more than two years after she had been suspended from the practice of law in Oregon for failure to pay her Bar dues. We conclude, from those facts, that the accused acted intentionally, i.e., that she acted with a conscious objective or purpose to accomplish a particular result, by holding herself out as eligible to practice law when she was not eligible to do so and by failing to disclose to the court that she was suspended from the practice of law. See id. at 241-42 (lawyer acted intentionally when he engaged in unauthorized practice of law).

For the following reasons, we also conclude that the accused knowingly failed to cooperate with the Bar's investigation. The record indicates that the accused signed a return receipt for a letter from the Bar notifying her of the allegations and requesting a response from her to those allegations. (8) Additionally, the record also shows that the Bar personally served the accused with a copy of the complaint and that the accused returned the notice to answer with a signed Form B resignation form attached. Based on those facts, we conclude that the accused acted "knowingly" when she failed to respond to the Bar's inquiries, that is, with a "conscious awareness of the nature or attendant circumstances of her conduct, but without a conscious objective or purpose to accomplish a particular result." See In re Miles, 324 Or 218, 221-22, 923 P2d 1219 (1996) (finding same mental state in similar circumstances).

As to the injury caused by the accused's misconduct, we note that "injury" includes actual or potential harm to a client, the public, the legal system, or the legal profession. ABA Standards at 6-7. Although the Bar does not allege that the accused's client suffered actual harm as a result of her unlawful practice of law, the Bar correctly asserts that the unauthorized practice of law inherently carries with it the potential to injure the legal system. See In re Whipple, 320 Or 476, 488, 886 P2d 7 (1994) (so stating). We also agree that the accused's failure to cooperate with the Bar's investigation caused actual harm to both the legal profession and the public, because it delayed the investigation and, consequently, the resolution of the complaint against her. See Miles, 324 Or at 222 (so concluding in similar circumstances).

The accused's misconduct implicates several ABA Standards. ABA Standard 5.11 provides, in part:

"Disbarment is generally appropriate when:

"* * * * *

"(b) a lawyer engages in * * * intentional conduct involving dishonesty, fraud, deceit, or misrepresentation that seriously adversely reflects on the lawyer's fitness to practice."

ABA Standard 6.12 provides:

"Suspension is generally appropriate when a lawyer knows that false statements or documents are being submitted to the court or that material information is improperly being withheld, and takes no remedial action, and causes injury or potential injury to a party to the legal proceeding, or causes an adverse or potentially adverse effect on the legal proceeding."

ABA Standard 7.1 provides:

"Disbarment is generally appropriate when a lawyer knowingly engages in conduct that is a violation of a duty owed as a professional with the intent to obtain a benefit for the lawyer or another, and caused serious or potentially serious injury to a client, the public, or the legal system.

ABA Standard 7.2 provides:

"Suspension is generally appropriate when a lawyer knowingly engages in conduct that is a violation of a duty owed as a professional, and causes injury or potential injury to a client, the public, or the legal system."

Based on the foregoing, we make an initial determination that either disbarment or a suspension would be appropriate in this case. We now consider the applicable aggravating and mitigating circumstances that might affect our determination of the appropriate sanction.

We find only one aggravating factor: The accused's misconduct involved multiple offenses. ABA Standard 9.22(d). The sole mitigating factor is that the accused has no prior disciplinary record. ABA Standard 9.32(a).

The remaining consideration is this court's case law. Although we find no cases directly on point, the following are instructive. In Devers, 320 Or at 245, this court disbarred a lawyer, who had a disciplinary record, for continuing to practice law after he had been suspended. Similarly, the court disbarred the lawyer in In re Jones, 312 Or 611, 825 P2d 1365 (1992), who also had a previous disciplinary record, for, among other things, practicing law while suspended and failing to respond to the Bar's inquiries. Unlike the lawyers in Devers and Jones, however, the accused does not have a prior disciplinary record. Her unauthorized practice occurred while she was suspended for failure to pay her Bar dues, not for a previous disciplinary violation. Additionally, because the conduct in Devers and in Jones was more egregious than the accused's conduct here, we do not think that a similar sanction is appropriate in this case.

The Bar suggests, and the trial panel concluded, that a one-year suspension is appropriate here. The Bar directs our attention to In re Jones, 308 Or 306, 779 P2d 1016 (1989), in which the court suspended the accused lawyer for six months for violating DR 1-102(A)(1) (knowingly assisting another to violate disciplinary rules), DR 1-102(A)(4) (conduct prejudicial to administration of justice) and DR 3-101(A) (aiding nonlawyer in unlawful practice of law). The Bar acknowledges that the misconduct in Jones differs from the misconduct in this case but argues that Jones is instructive because it demonstrates that a six-month suspension is an appropriate sanction for the accused's unlawful practice of law. However, because the accused engaged in additional misconduct -- failure to cooperate with the Bar's disciplinary investigation -- the Bar recommends a one-year suspension. See, e.g., Miles, 324 Or at 224 (120-day suspension appropriate when lawyer failed to respond to inquiries posed by Bar and LPRC in disciplinary investigation).

Drawing together the factors of the duty violated, the mental state of the accused, the injury caused, and the aggravating and mitigating factors, in addition to our consideration of this court's prior case law, we conclude that a one-year suspension is the appropriate sanction for the accused's misconduct -- engaging in the unauthorized practice of law while suspended for failure to pay her Bar dues, engaging in conduct involving dishonesty and misrepresentation, engaging in conduct prejudicial to the administration of justice, and failure to cooperate with the Bar's investigation of that misconduct. (9)

The accused is suspended from the practice of law for a period of one year, commencing 60 days from the date of the filing of this decision.

1. ORS 9.160 provides:

"Except for the right reserved to litigants by ORS 9.320 to prosecute or defend a cause in person, no person shall practice law or represent that person as qualified to practice law unless that person is an active member of the Oregon State Bar."

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2. DR 1-102(A)(3) provides, in part:

"It is professional misconduct for a lawyer to:

"* * * * *

"Engage in conduct involving dishonesty, fraud, deceit or misrepresentation[.]"

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3. DR 1-102(A)(4) provides, in part:

"It is professional misconduct for a lawyer to:

"* * * * *

"Engage in conduct that is prejudicial to the administration of justice[.]"

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4. DR 3-101(B) provides:

"A lawyer shall not practice law in a jurisdiction where to do so would be in violation of regulations of the profession in that jurisdiction."

The Bar pleaded, and the trial court found, that the accused violated DR 3-101(A), which prohibits aiding a nonlawyer in the unlawful practice of law. The reference to that Disciplinary Rule appears to have been a typographical error. There are no facts alleged in the complaint that would support a violation of DR 3-101(A). Moreover, in its memorandum to the trial panel concerning sanctions, the Bar distinguished the misconduct of the accused -- practicing law while suspended -- from the misconduct in In re Jones, 308 Or 306, 779 P2d 1016 (1989) (lawyer allowed nonlawyer to practice law using his name). In light of the foregoing, we conclude that the Bar intended to plead that the accused violated DR 3-101(B). We proceed accordingly.

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5. DR 1-103(C) provides:

"A lawyer who is the subject of a disciplinary investigation shall respond fully and truthfully to inquiries from and comply with reasonable requests of a tribunal or other authority empowered to investigate or act upon the conduct of lawyers, subject only to the exercise of any applicable right or privilege."

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6. Instead of filing an answer to the formal complaint, the accused returned the notice to answer and executed the sample Form B resignation attached to it. The Bar submitted the accused's resignation to this court for consideration. Bar Rule of Procedure (BR) 9.2. We declined to accept the accused's resignation, because it did not comply with BR 12.7.

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7. BR 5.8(a) provides, in part:

"If an accused lawyer fails to resign or file an answer to a formal complaint within the time allowed by these rules, or if an accused lawyer fails to appear at a hearing set pursuant to BR 2.4(h), the trial panel may enter an order in the record finding the accused in default under this rule. The trial panel may thereafter deem the allegations in the formal complaint to be true. The trial panel shall thereafter proceed to render its written opinion based on the formal complaint, or at the discretion of the trial panel, after considering evidence or legal authority limited to the issue of sanction. * * *"

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8. The record also suggests that the accused responded to the complaint in a letter dated September 13, 1996. The Bar did not include the accused's letter as part of the record in this proceeding. In a subsequent letter, the Bar acknowledged the accused's response and requested additional information. The accused, however, did not respond to that, or any other, additional inquiry by the Bar or the LPRC.

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9. If the accused desires to be reinstated as an active member of the Bar, then she must submit a formal application. See BR 8.1(a)(iv) and (viii) (formal application required for reinstatement of member of Bar who has been suspended for misconduct for period of more than six months and/or for member of Bar who has been suspended for failure to pay membership fees and has remained in that status more than five 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
2

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[.]"
3

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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