S45431 State v. Tucker

SUPREME COURT CASES

Laws-info.com » Cases » Oregon » 2000 » S45431 State v. Tucker

State: Oregon

Docket No: none

Case Date: 03/09/2000

Filed: March 9, 2000

IN THE SUPREME COURT OF THE STATE OF OREGON

STATE OF OREGON,

Respondent on Review,

JASON RAY TUCKER,

Petitioner on Review.

(CF95-0539; CA A90706; SC S45431)

On appeal from the Court of Appeals.*

Argued and submitted January 8, 1999.

Peter Gartlan, Deputy Public Defender, Salem, argued the cause for petitioner on review. With him on the brief was David E. Groom, Public Defender.

Timothy A. Sylwester, Assistant Attorney General, Salem, argued the cause for respondent on review. Hardy Myers, Attorney General, filed the brief for respondent on review. With him on the brief were Michael D. Reynolds, Solicitor General, and Judith Brant, Assistant Attorney General.

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

RIGGS, J.

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

*Appeal from Umatilla County Circuit Court.

151 Or App 775, 951 P2d 190 (1997), on recons 154 Or App 187, 959 P2d 632 (1998).

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

RIGGS, J.

In this criminal case, defendant seeks review of his conviction for being a felon in possession of a firearm. ORS 166.270(1). He contends that the trial court erred in denying his motion to suppress evidence seized in a warrantless search of an automobile in which he was a passenger. The Court of Appeals affirmed. State v. Tucker, 151 Or App 775, 951 P2d 190 (1997). On reconsideration, the Court of Appeals adhered to its earlier opinion. State v. Tucker, 154 Or App 187, 959 P2d 632 (1998).

In this court, defendant argues that the trial court erred both on constitutional and statutory grounds. We resolve the case on the statutory ground, ORS 133.693(4). We hold that, under that statute, the state had the burden of proving the validity of the warrantless search. Because the state failed to meet that burden, we reverse and remand.

We take the following facts from the trial court's findings and the record. Defendant was the sole passenger in an automobile involved in a single-automobile accident. The automobile rolled over, and the force of the accident scattered some of the contents of the automobile across the roadway. Defendant and the driver were taken to the hospital. The state trooper who investigated the accident and the tow truck driver who was to tow the automobile from the scene gathered up the scattered items and put them back in the automobile. The tow truck driver then towed the automobile to the tow truck driver's house.

The trooper had reason to believe that defendant had identified himself falsely during the accident investigation. Without first requesting or obtaining a search warrant, the trooper chose to call the tow truck driver at home and to ask him to look through the papers and mail inside the automobile to help determine defendant's identity. Although the tow truck driver was unable to find defendant's name among the items in the automobile, the tow truck driver did find a gun in a camera case after opening the case to look for identifying items. The trooper eventually discovered defendant's identity and the fact that defendant was a convicted felon. Ultimately, defendant was charged with, among other things, being a felon in possession of a firearm. ORS 166.270(1).

Before trial, defendant moved to suppress evidence of the gun, contending that the search by the tow truck driver at the behest of the trooper violated Article I, section 9, of the Oregon Constitution, and the Fourth Amendment to the United States Constitution. (1) Responding to defendant's motion, the state first argued that the search by the tow truck driver did not constitute state action. The state next argued that defendant had the burden of asserting a protected interest in the gun or the camera case, and that he had failed to meet that burden. The state argued that that was so because, under Article I, section 9, a court will suppress evidence obtained through an illegal search or seizure only if the actions of the police invade a constitutionally protected interest of a defendant. Finally, the state also argued that a passenger in an automobile has no protected privacy or property interest in the automobile or its contents. Defendant responded that he was not required to establish first that he had a protected interest in the gun, the camera case, or the automobile. In defendant's view, the state bore the burden under ORS 133.693(4), quoted below, of proving that the warrantless search and seizure were valid. The trial court denied defendant's motion to suppress and thereafter found defendant guilty of being a felon in possession of a firearm.

Defendant appealed to the Court of Appeals. In affirming the conviction, that court reasoned that, because defendant had not shown a protected interest in the automobile or its contents, the search did not violate his constitutional rights. Tucker, 151 Or App at 777, 779. We allowed defendant's petition for review. For the reasons that follow, we conclude that, in the context of a warrantless search, a defendant is not required to assert a protected property or privacy interest on which the state intruded. Rather, consistent with ORS 133.693(4), the burden is on the state to prove that the warrantless search did not violate a protected interest of the defendant.

As noted, we need consider only defendant's statutory argument. See Leo v. Keisling, 327 Or 556, 562, 964 P2d 1023 (1998) (noting that this court resolves cases on subconstitutional grounds if those grounds exist). ORS 133.693(4) provides:

"Where the motion to suppress challenges evidence seized as the result of a warrantless search, the burden of proving by a preponderance of the evidence the validity of the search is on the prosecution."OEC 307 provides:

"(1) The burden of producing evidence as to a particular issue is on the party against whom a finding on the issue would be required in the absence of further evidence.

"(2) The burden of producing evidence as to a particular issue is initially on the party with the burden of persuasion as to that issue."In this case, the "particular issue" is the validity of the warrantless search. ORS 133.693(4) places the burden of proof at to that issue on the state. Under OEC 307(2), the state had the burden of producing evidence showing that the search was valid. If the state failed to produce such evidence, and no other evidence independently met the state's burden, then OEC 307(1) requires the court to find against the state."

In this court, the state makes two arguments. First, the state argues that the tow truck driver's search of the automobile was the act of a private individual and therefore did not implicate either ORS 133.693(4) or Article I, section 9, of the Oregon Constitution. It is true that Article I, section 9, prohibits only state action that infringes on a citizen's constitutional rights. See State v. Tanner, 304 Or 312, 321, 745 P2d 757 (1987) ("A section 9 privacy interest is an interest against the state; it is not an interest against private parties."). We assume that ORS 133.693(4), in referring to a "warrantless search," extends no further.

Here, the trooper asked the tow truck driver to look in the automobile to see if any paper or mail revealed defendant's name. The ensuing search thus was not simply the independent volitional act of a private citizen. This court has not addressed previously when Article I, section 9, applies to a search by a private citizen. The answer is not difficult, however. We now hold that, if a state officer requests a private person to search a particular place or thing, and if that private person acts because of and within the scope of the state officer's request, then Article I, section 9, will govern the search.

Under that standard, insofar as the evidence produced at the suppression hearing shows, the tow truck driver responded to the trooper's request by searching the interior of the automobile. The tow truck driver acted within the scope of the trooper's request when he looked into the camera case, because such a container reasonably could have held an identification card, papers, or mail. Therefore, we hold that Article I, section 9, applies to the tow truck driver's search of the automobile. (2) It follows that the terms of ORS 133.693(4) apply to this case.

Second, the state argues that it met any burden that it had under ORS 133.693(4) by proving that the state did not invade any constitutionally protected interest of defendant. That is so, the state posits, because defendant failed to assert a protected interest in the gun or the camera case. The state's argument misstates its statutory burden and misconstrues this court's case law. In State v. Morton, 326 Or 466, 953 P2d 374 (1998), the police had arrested the defendant pursuant to an illegal warrant. While the police were placing the defendant under arrest, a plastic container fell from her jacket. The police opened the container, discovered methamphetamine, and arrested the defendant for unlawful possession of a controlled substance. ORS 475.992(4)(b). Notwithstanding the defendant's express denial at the scene of her arrest that she either owned or had any knowledge of the container, this court held that the defendant had a protected interest in the container, because uncontradicted evidence showed that the defendant had been in personal possession of the container only moments before it came into the possession of the police. Id. at 469. Morton demonstrates that a defendant's denial of a protected interest is not necessarily dispositive of whether the state has met its burden of proving the validity of a warrantless search.

As in Morton, here the state failed to prove that defendant lacked a protected interest in the camera case or gun. ORS 133.693(4). Defendant never had the burden of asserting an interest in the item that formed the basis of the criminal charge and that was derived from the warrantless search.

In sum, because the state failed to meet its burden of proving that the warrantless search was valid, defendant was entitled to a ruling that the search was illegal and that the gun discovered as a result of the search must be suppressed. The contrary ruling of the circuit court was error. Defendant's conviction must be reversed.

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

1. Article I, section 9, of the Oregon Constitution, provides:

"No law shall violate the right of the people to be secure in their persons, houses, papers, and effects, against unreasonable search, or seizure; and no warrant shall issue but upon probable cause, supported by oath, or affirmation, and particularly describing the place to be searched, and the person or thing to be seized."

The Fourth Amendment to the United States Constitution provides, in part:

"The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated[.]"

Return to previous location.

2. The state argues that a statement by the trial court that the tow truck driver exceeded the scope of the trooper's request when the tow truck driver searched the camera case is a finding of fact and, as such, we are bound by the statement. See State v. Herrin, 323 Or 188, 193, 915 P2d 953 (1996) (holding that only findings of historical fact supported by the record are binding on an appellate court). Whether viewed as a conclusion of law or as a finding of fact, the record does not support the court's statement. We, therefore, are not bound by it.

Return to previous location.

Preview:1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 30 31 32 33 34 35 36

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

1

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22

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

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17

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.
1

3

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17

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

4

1 2 3 4 5 6 7 8 9

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 * * * ."

5

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22

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

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22

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

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22

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

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18

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).

4

9

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22

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

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22

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

1 2 3 4 5 6

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.

12

Download S058778 In re Lawrence.pdf