S45440 Rodriguez v. The Holland, Inc.

SUPREME COURT CASES

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State: Oregon

Docket No: CC96-07-05514

Case Date: 04/29/1999

FILED: April 29, 1999

IN THE SUPREME COURT OF THE STATE OF OREGON

SYDNEY RODRIGUEZ, by her guardian ad

litem, GINA RODRIGUEZ,

Petitioner on Review,

THE HOLLAND, INC., a Washington corporation,

doing business as BURGERVILLE USA,

Respondent on Review.

THE HOLLAND, INC., a Washington corporation,

doing business as BURGERVILLE USA,

Third-Party Plaintiff,

KIM FROSAKER, an individual,

Third-Party Defendant.

(CC 96-07-05514; CA A98544; SC S45440)

En Banc

On review from the Court of Appeals.*

Argued and submitted November 2, 1998.

John S. J. Marandas, of Marandas & Perdue, Portland, argued the cause and filed the briefs for petitioner on review.

Michael J. Gentry, of Tooze Duden Creamer Frank & Hutchison, Portland, argued the cause and filed the brief for respondent on review.

LEESON, J.

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

*Appeal from Multnomah County Circuit Court,

Kristena A. LaMar, Judge.

153 Or App 701, 957 P2d 203 (1998).

LEESON, J.

In this negligence action for personal injuries that plaintiff sustained at defendant's playground, the issue is whether plaintiff, who prevailed on her claim, is entitled to an award of attorney fees. The trial court vacated the arbitrator's award of fees, and the Court of Appeals affirmed. Rodriguez v. The Holland, Inc., 153 Or App 701, 957 P2d 203 (1998). We conclude that plaintiff is entitled to attorney fees and reverse.

The facts are undisputed. Plaintiff, a young child, broke her arm when she fell from a piece of play equipment at a playground owned and operated by defendant. Defendant denied liability.(1) Plaintiff, through her guardian ad litem, and defendant's insurer exchanged several offers and counteroffers in an attempt to settle plaintiff's claim. Ultimately, plaintiff informed defendant's insurer that she was willing to reduce her claim to $4,000 and that, if defendant did not pay that amount, plaintiff would make a demand for $4,000 "plus the award of attorney fees as allowed by ORS 20.080."(2) Defendant's insurer made a counteroffer to settle the claim for $2,500 "[i]n the spirit of compromise and considering the ORS 20.080 statute * * *."

Plaintiff subsequently filed a complaint alleging economic damages in the amount of $613, noneconomic damages in the amount of $3,600 -- a total of $4,213 -- and attorney fees under ORS 20.080. Defendant's answer denied liability and denied that plaintiff was entitled to attorney fees under ORS 20.080. The circuit court transferred the case to arbitration. See ORS 36.405 (requiring mandatory arbitration of specified civil claims).

A few weeks before the arbitration hearing, plaintiff moved to amend her complaint under ORCP 23 A. At a hearing on that motion, plaintiff also requested that she be allowed to reduce her demand for damages to $4,000. Plaintiff explained that, as indicated in her earlier demand letter, she had intended to sue for damages of only $4,000. However, in drafting the complaint, she had miscalculated the economic and noneconomic damages. The arbitrator allowed plaintiff to amend her complaint and to reduce her demand for damages to $4,000 but asked her to provide additional legal authority to support an award of attorney fees under ORS 20.080. Plaintiff provided a memorandum of authorities, and defendant responded to that memorandum.

After the arbitration hearing, the arbitrator found for plaintiff on her claim and awarded her $3,965 in damages and $6,000 in attorney fees. He explained that attorney fees were appropriate because

"defendant has not sufficiently shown prejudice arising from plaintiff's correction of her complaint to bring it within the statute for attorney[] fees. It is clear that such fees always were sought. * * *"

Defendant filed exceptions to the award of attorney fees with the circuit court. See ORS 36.425(6) (allowing filing of exceptions to award of attorney fees). That court vacated the arbitrator's award of attorney fees, concluding that Wyatt v. Sweitz, 146 Or App 723, 934 P2d 544, rev dismissed 326 Or 63 (1997), controlled. The Court of Appeals affirmed, citing Wyatt.

We allowed review to determine the meaning of the phrase "amount pleaded" in ORS 20.080. That statute provides, in part:

"(1) In any action for damages for an injury or wrong to the person or property, or both, of another where the amount pleaded is $4,000 or less, and the plaintiff prevails in the action, there shall be taxed and allowed to the plaintiff, at trial and on appeal, a reasonable amount to be fixed by the court as attorney fees for the prosecution of the action, if the court finds that written demand for the payment of such claim was made on the defendant not less than 10 days before the commencement of the action or the filing of a formal complaint * * *." (Emphasis added.)

According to plaintiff, the phrase "amount pleaded" in the statute refers to the operative complaint in an action, which in this case is her amended complaint. Defendant contends that the phrase refers only to the original complaint in an action.

Determining the meaning of the phrase "amount pleaded" in ORS 20.080 is a matter of statutory construction. See PGE v. Bureau of Labor and Industries, 317 Or 606, 610-12, 859 P2d 1143 (1993) (establishing methodology for statutory construction). We look first to the text and context of the statute. Id. at 610. Statutory context includes other provisions of the same statute and other related statutes. State v. Metcalfe, 328 Or 309, 312, ___ P2d ___ (1999); see State v. Carr, 319 Or 408, 412, 877 P2d 1192 (1994).

ORS 20.080 does not define the phrase "amount pleaded," and the plain words of the statute do not indicate whether the phrase refers to the original complaint or to the operative complaint in an action. However, the Oregon Rules of Civil Procedure provide statutory context for construing ORS 20.080, because they "govern procedure and practice in all circuit courts * * * for all civil actions * * * except where a different procedure is specified by statute or rule." ORCP 1 A (emphasis added); see also ORS 1.735 (delegating authority to Council on Court Procedures to promulgate ORCP). ORS 20.080 does not specify a pleading procedure different from the Oregon Rules of Civil Procedure.

ORCP 23 A provides that, with leave of the court, a party may amend a pleading after a responsive pleading is served and that "leave shall be freely given when justice so requires." An amended pleading must be complete without reference to the original pleading or any preceding amended pleading. ORCP 23 D. After an original pleading has been amended, it no longer has status as a pleading in the action. The amended pleading supersedes the previous pleading and becomes the operative pleading. See Klemgard et al v. Wade Seed Co., 217 Or 409, 414, 342 P2d 757 (1959) (stating, under a predecessor statute, that

"* * * a pleading loses its status as such when it is superseded by an amended one * * *"); Mignot v. Parkhill, 237 Or 450, 453, 391 P2d 755 (1964) (same).

Because ORS 20.080 does not specify a pleading procedure different from the ORCP, we conclude that the phrase "amount pleaded" in ORS 20.080 refers to the demand for damages in the operative pleading in the action. In this case, the operative pleading is the amended complaint that the arbitrator allowed under ORCP 23 A. That complaint seeks damages in the amount of $4,000. Under ORS 20.080, plaintiff is entitled to a reasonable amount of attorney fees if she made a written demand for payment of her claim not fewer than 10 days before she filed her initial complaint. Defendant does not dispute that plaintiff made a written demand for $4,000 at least 10 days before filing her complaint.

According to defendant, allowing anything but the original complaint to determine the "amount pleaded" in an action to which ORS 20.080 applies would frustrate the policy underlying that statute. That policy is to encourage settlement of small claims, to prevent insurance companies and tortfeasors from refusing to pay just claims, and to discourage plaintiffs from inflating their claims. See, e.g., Johnson v. White, 249 Or 461, 462-64, 439 P2d 8 (1968) (stating policy underlying ORS 20.080). Even if we agreed with defendant's argument it has no force here, because our only task is to discern the meaning of the phrase "amount pleaded" in ORS 20.080. This court's statutory construction methodology, not policy considerations, guide that inquiry. What is more, reduced to its essentials, defendant's policy argument is an attack on the arbitrator's decision to allow plaintiff to amend her complaint, a decision to which it has not objected heretofore.(3)

We turn to an examination of Wyatt, the case on which defendant and the courts below relied for their conclusions that plaintiff is not entitled to an award of attorney fees in this case. In Wyatt, the plaintiff pleaded two claims for relief, the first for "timber trespass" and the second for "trespass to land." The aggregate amount of the two claims was more than $4,000. The trial court granted the defendant's motion for partial judgment on the pleadings. The plaintiff then filed a second amended complaint, seeking a maximum recovery of $3,960. After a trial in which the jury awarded the plaintiff actual damages of $10 and punitive damages of $500, the plaintiff petitioned for attorney fees under ORS 20.080. The Court of Appeals reversed the trial court's award of attorney fees, reasoning that the plaintiff's original complaint made a "total demand" of more than $4,000. The Court of Appeals held that the plaintiff "'took himself out of' ORS 20.080 by making a total demand of more than $4,000 in his original complaint." Wyatt, 146 Or App at 734. In arriving at that conclusion, the Court of Appeals relied on this court's decision in Johnson. That reliance was misplaced.

In Johnson, the plaintiff sued for personal injury in one claim, seeking $5,699.20, and for property damage in another claim, seeking $379.00.(4) The jury found for the plaintiff only on the second claim. The plaintiff sought attorney fees under ORS 20.080 which, at that time, required that the amount pleaded be $1,000 or less. This court held that the plaintiff was not entitled to attorney fees, because the "amount pleaded" requirement of ORS 20.080 applies to the total demand of a complaint, regardless of the number of claims. Johnson, 249 Or at 464. Johnson did not pose the interpretive question raised by Wyatt or by this case, namely, whether the phrase "amount pleaded" refers only to the original pleading in an action. As explained above, we hold that the phrase "amount pleaded" in ORS 20.080 refers to the operative pleading in an action, which can be an amended complaint in which the demand for damages was amended with leave of the court under ORCP 23 A.

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

1. In a third-party action, defendant alleged that third-party defendant Kim Frosaker, plaintiff's babysitter at the time of the accident, was liable for plaintiff's injuries. Neither that third-party action nor the third-party defendant is affected by plaintiff's appeal.

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2. The text of ORS 20.080, which provides for an award of attorney fees to a plaintiff who pleads and prevails on a claim for $4,000 or less, is quoted later in this opinion.

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3. Defendant maintained at the Court of Appeals that "this appeal presents no question of the appropriateness of the [arbitrator's] allowance of the motion to amend."

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4. In Johnson, each claim was pleaded as a separate "cause of action," a term that has been abandoned under the Oregon Rules of Civil Procedure in favor of "claim for relief." For purposes of our analysis, "cause of action" and "claim for relief" are synonymous. See Peterson v. Temple, 323 Or 322, 327 n3, 918 P2d 413 (1996) (so stating).

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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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