S45530 Einstein v. PSRB

SUPREME COURT CASES

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State: Oregon

Docket No: PSRB961429

Case Date: 03/23/2000

Filed: March 23, 2000

IN THE SUPREME COURT OF THE STATE OF OREGON

HERBERT R. EINSTEIN,

Respondent on Review,

PSYCHIATRIC SECURITY REVIEW BOARD,

Petitioner on Review.

(PSRB 961429; CA A96647; SC S45530)

En Banc

On review from the Court of Appeals.*

Argued and submitted November 4, 1999.

Katherine H. Waldo, Assistant Attorney General, Salem, argued the cause for petitioner on review. With her on the brief were Hardy Myers, Attorney General, and Michael D. Reynolds, Solicitor General.

Harris S. Matarazzo, Portland, argued the cause and filed the brief for respondent on review.

GILLETTE, J.

The decision of the Court of Appeals is reversed. The order of the Psychiatric Security Review Board is affirmed.

Van Hoomissen, J., concurred and filed an opinion.

*On judicial review of an order of the Psychiatric Security Review Board. 153 Or App 522, 958 P2d 843 (1998).

GILLETTE, J.

This is a proceeding for judicial review of an order of the Psychiatric Security Review Board (PSRB). Applicant was committed to the jurisdiction of PSRB for a period not to exceed 20 years after he was found guilty except for insanity of arson in the first degree. In the present proceeding, which was brought several months after his commitment, applicant argued to PSRB that he was entitled to be discharged from PSRB jurisdiction because he no longer was affected by a mental disease or defect. PSRB concluded that applicant still suffered from the mental disease or defect that led to his commitment; it therefore denied his release. Applicant sought judicial review in the Court of Appeals, contending that the PSRB order was not supported by substantial evidence. The Court of Appeals reversed the order and remanded the case for reconsideration, reasoning, inter alia, that it was "equally * * * inferable" from the evidence in the record that applicant no longer suffered from a mental disease. Einstein v. PSRB, 153 Or App 522, 525-26, 958 P2d 843 (1998). We allowed PSRB's petition for review and now reverse the decision of the Court of Appeals.

The arson that led to applicant's commitment to the jurisdiction of PSRB occurred in September 1995. Applicant was fearful that there were persons in his residence who wished to hurt him; he started a fire in the residence.

Following his commitment to PSRB's jurisdiction, applicant immediately was placed on "conditional release" status, which meant that he was living in the community but was subject to PSRB supervision. See ORS 161.332 (defining "conditional release"). Applicant brought the present proceeding in November 1996 and, in January 1997, just eight months after applicant was found guilty except for insanity, a hearing was held to determine whether he should be discharged.

ORS 161.336 governs the circumstances in which PSRB may grant, modify, or terminate conditional release. The statute provides, in part:

"(1) If [PSRB] determines that the person presents a substantial danger to others but can be adequately controlled with supervision and treatment if conditionally released and that necessary supervision and treatment are available, [PSRB] may order the person conditionally released, subject to those supervisory orders of [PSRB] as are in the best interests of justice, the protection of society and the welfare of the person. * * *

"* * * * *

"(3) For purposes of this section, a person affected by a mental disease or defect in a state of remission is considered to have a mental disease or defect requiring supervision when the disease may, with reasonable medical probability, occasionally become active and, when active, render the person a danger to others. The person may be continued on conditional release by [PSRB] as provided in this section.

"* * * * *

"(7)(a) Any person conditionally released under this section may apply to [PSRB] for discharge from or modification of an order of conditional release on the ground that the person is no longer affected by mental disease or defect or, if still so affected, no longer presents a substantial danger to others and no longer requires supervision, medication, care or treatment.

* * * The applicant, at the hearing pursuant to this subsection, must prove by a preponderance of the evidence the applicant's fitness for discharge or modification of the order of conditional release. Applications by the person for discharge or modification of conditional release shall not be filed more often than once every six months."

In this case, applicant seeks discharge under ORS 161.336(7)(a). Thus, unlike the case in periodic review hearings held under ORS 161.341(7)(b), (1) applicant bears the burden of proof to establish, by a preponderance of the evidence, that he is entitled to discharge.

We take the following description of the PSRB hearing from the opinion of the Court of Appeals:

"The hearing was held on January 13, 1997. At the hearing, Dr. Lee Squire, [applicant's] treating psychologist and conditional release supervisor, testified about [applicant's] current mental state. She stated that, in her opinion, [applicant] was not suffering from a mental disease or defect at that time. She explained that she had seen [applicant] regularly since his placement under the PSRB's jurisdiction and had observed no evidence of mental disease or defect. In addition, she noted that [applicant] was not taking any medication for a mental disease or defect. The state opposed discharge and relied on [applicant's] past medical records1 in support of its opposition. Ultimately, the PSRB ruled that:

"'2. [Applicant] is affected by a mental disease or defect as demonstrated by the underlying facts shown by the evidence, including the information contained in Exhibits 10, 9, 8, 7, and 3, as well as the judgment

* * * in this case as noted in Exhibit 1. Although [applicant's] case manager, Lee Squire, Ph.D., testified at the hearing that, in her opinion, [applicant] is not suffering from a mental disease or defect, the Board was convinced by a preponderance of the evidence based on the record and [applicant's] psychiatric history that he does suffer from a mental disease or defect.

"'3. Although [applicant's] mental disease or defect is now in a state of remission, it does require supervision, because, with reasonable medical probability, it occasionally will become active and when active it will cause [applicant] to present a substantial danger to others.'"

_____________________

"1 The records consist of Exhibits 1 through 13. One of the exhibits is a report dated February 6, 1996, diagnosing [applicant] as having a cannabis-induced psychotic disorder with delusions, cannabis abuse by history, amphetamine abuse by history and hallucinogen abuse by history. It also diagnosed [applicant] as having a 'personality disorder, with antisocial features.'"

Einstein, 153 Or App at 524-25.

On judicial review, the state relied on the exhibits referred to by PSRB, all of which related to applicant's condition before and at the time when he was found guilty except for insanity, to support the PSRB order. Relying on its own precedent, (2) the Court of Appeals held that such documentation could not serve as substantial evidence for PSRB's findings because it was "stale" and, therefore, was not relevant to applicant's mental condition at the time of the PSRB hearing. It followed, the court reasoned, that "[t]he only evidence in the record that purports to discuss [applicant's] current mental state is the testimony of Dr. Squire[]." Einstein, 153 Or App at 525.

The state had argued to the Court of Appeals that, even under a reading of the record most favorable to applicant, the best that could be said with respect to applicant's psychotic disorder resulting from cannabis abuse was that it was in remission, and a mental disease that is in remission still is a mental disease. The Court of Appeals rejected that argument:

"[T]he state submitted no evidence that, at the time of the hearing, [applicant's] prior mental health disease was in remission. The only evidence submitted established that a year earlier [applicant] had suffered from a medical [sic] disease. It is equally as inferable from that evidence that [applicant] no longer suffers from a mental disease as it is that the disease continues but is in remission. Once petitioner offered evidence at the hearing that established that he currently no longer suffers from the disease, the state had the burden to overcome that evidence and to show that petitioner still suffers from a mental disease that is in remission. See Martin v. PSRB, 312 Or 157, 166, 818 P2d 1264 (1991) (holding that, to continue jurisdiction over [an applicant], it was necessary to show that he had a mental disease or defect, which was in remission at the time of the hearing)."

Id. at 525-26 (emphasis added). Because, in its view, the medical records were not sufficient to demonstrate that applicant currently had a mental disease, the Court of Appeals held that PSRB's finding that applicant's disease was in remission was not supported by substantial evidence. See ORS 183.482(8)(c) (authorizing reviewing court to set aside or remand an agency order if the order "is not supported by substantial evidence in the record"). The court reversed and remanded PSRB's order for reconsideration. Id. at 526. We allowed PSRB's petition for review.

The Court of Appeals correctly determined that the appropriate factual inquiry was applicant's mental condition at the time of the hearing. The question therefore is whether there is substantial evidence in the present record from which a reasonable person could find, either directly or by permissible inference, that applicant continues to suffer from a mental disease or defect that is in remission. Judicial review for substantial evidence to support a finding of fact is a statutory undertaking under ORS 183.482(8). "Substantial evidence exists to support a finding of fact when the record, viewed as a whole, would permit a reasonable person to make that finding." ORS 183.482(8)(c).

In the present case, the record includes exhibits establishing that, as recently as eight months before the hearing, applicant had suffered from an episodic psychotic disorder that was triggered by cannabis abuse. The record also contains evidence on which PSRB relied that applicant has a long history of mental illness, punctuated by periods of hospitalization, but that his mental illness goes through periods of remission. The nature of applicant's disease and its recent flare-up that led to the underlying criminal charges could, in our view, lead a reasonable person to find that the absence of symptoms just eight months later was, at best, evidence that the condition was in remission. In other words, the evidence supported the inference that PSRB drew, viz., that applicant's underlying psychotic condition persists. (3) It follows that there was substantial evidence for the finding of fact that PSRB made and that the Court of Appeals' contrary ruling was error.

This court's decision in Martin, 312 Or at 157, on which both the Court of Appeals and applicant relied, is not to the contrary. In that case, this court held that PSRB had misunderstood the specific evidence on which it had relied in finding that a committed person suffered from a mental disease or defect and that, when correctly understood, that evidence did not justify the finding. Id. at 165-68. However, the court was careful to note that there could be other evidence in the record -- evidence that, by definition, had to relate to the person's condition at times up to a year or more preceding the hearing -- that might provide substantial evidence to support the same finding. The court therefore remanded the case to PSRB for reconsideration. Id. at 168. That is, the court in Martin suggested that evidence older than the evidence in the present case could be relied on by PSRB to make decisions respecting the status of a committed person's current mental health. (4)

Under ORS 183.482(8)(c), the sole issue before the Court of Appeals was whether a reasonable person, based on the evidence before PSRB, permissibly could draw the inference that applicant presently suffers from a mental disease or defect. If a reasonable person could do so -- and, here, applicant's long history of episodic manifestations of his psychotic condition, the last coming less than a year earlier, would permit such an inference -- then the Court of Appeals' inquiry should have been at an end. The Court of Appeals appears to have been preoccupied with the fact that only Squire's testimony purported to describe applicant's condition "right now," but, as we have explained, this is not a case in which evidence of applicant's history is so remote that a reasonable person could not, as a matter of law, give that evidence substantial weight.

Applicant also relies on this court's opinion in Drew v. PSRB, 322 Or 491, 909 P2d 1211 (1996), but that case does not aid him. It stands for the proposition that a board such as PSRB may not supplement the record based on its members' expertise, id. at 498-99, but this is not a case in which PSRB did so. PSRB made its findings based on its assessment of the weight that it could give to the evidence that was in the record. As already noted, that assessment was a legally permissible one.

The decision of the Court of Appeals is reversed. The order of the Psychiatric Security Review Board is affirmed.

VAN HOOMISSEN, J., concurring.

In this proceeding for judicial review of an order of the Psychiatric Security Review Board (PSRB), I agree with the analysis and holding of the majority. I write separately to record a few impressions that I have formed after more than a decade of reviewing PSRB orders.

First, it is not unusual for a petitioner on conditional release to request a full discharge from PSRB's jurisdiction within a relatively short time after his or her original commitment to PSRB. The record on review in such cases, however, frequently contains only the sketchiest evidence of the criminal conduct that resulted in the petitioner being found guilty except for insanity. I should think that, if someone were found to be guilty except for insanity a relatively short time before a PSRB hearing, then the likelihood that that person no longer would be affected by mental disease or defect, or, if so affected, no longer would present a substantial danger to others at the time of the hearing would be, at best, doubtful. For that reason, I should think that the state would want to present, and that PSRB would want to consider, the record of the petitioner's trial and evidence of the petitioner's entire psychiatric and criminal history.

ORS 161.346(3) provides in part:

"The board shall consider all evidence available to it which is material, relevant and reliable regarding the issues before the board. Such evidence may include but is not limited to the record of trial, the information supplied by the attorney representing the state or by any other interested party, including the person, and information concerning the person's mental condition and the entire psychiatric and criminal history of the person. All evidence of a type commonly relied upon by reasonably prudent persons in the conduct of their serious affairs shall be admissible at hearings. * * *"

That kind of evidence has been missing in several of the PSRB cases recently reviewed by this court.

Second, ORS 161.336(3) provides:

"For purposes of this section, a person affected by a mental disease or defect in a state of remission is considered to have a mental disease or defect requiring supervision when the disease may, with reasonable medical probability, occasionally become active and, when active, render the person a danger to others. The person may be continued on conditional release by the board as provided in this section."

The fact that a person affected by a mental disease or defect in a state of remission presently is not evidencing conduct rendering him or her a danger to others might be the consequence of that person's current supervision, treatment, and medication. PSRB must be alert to the reality that a petitioner's discharge from PSRB's jurisdiction might result in the abrupt cessation of those ameliorating influences.

Third, it cannot be overemphasized that the burden of proof at an ORS 161.336(7) discharge hearing is on the petitioner. ORS 161.336(7)(a) provides in part:

"Any person conditionally released under this section may apply to the board for discharge from or modification of an order of conditional release on the ground that the person is no longer affected by mental disease or defect or, if still so affected, no longer presents a substantial danger to others and no longer requires supervision, medication, care or treatment. * * * The applicant, at the hearing pursuant to this subsection, must prove by a preponderance of the evidence the applicant's fitness for discharge or modification of the order of conditional release."

In this case, the Court of Appeals held that, once petitioner offered evidence that he no longer suffered from the disease, the state had the burden to overcome that evidence and to show that petitioner still suffered from a mental illness. That is incorrect. The burden of proof does not shift to the state. The state is not required to introduce affirmative evidence of the petitioner's unfitness for discharge or modification of the order of conditional release. PSRB is entitled to find that petitioner's evidence is unpersuasive. If PSRB was not persuaded that petitioner in this case had sustained his burden of proof, then it was entitled to deny his application for discharge on that ground alone, and, in this case, that probably is what it should have done.

I note finally, that, as in all proceedings for judicial review of administrative decisions, this court's task is facilitated by a cogent explanation of the reasons for PSRB's decision. (5)

1. Persons who, unlike applicant, are found not to be eligible for conditional release are committed to the custody of the Mental Health and Developmental Disability Services Division for custody, care, and treatment. ORS 161.341(1). Such persons are entitled to a hearing at least every two years to determine whether the person continues to be one who should be conditionally released or discharged. ORS 161.341(7)(b). Persons who, like applicant, are granted conditional release are entitled to a hearing every five years to determine if they should be discharged from PSRB's jurisdiction. ORS 161.352(3). In both kinds of proceedings, which are called "periodic review" hearings, the state bears the burden of proving by a preponderance of the evidence that the committed person still requires commitment or continued supervision on conditional release.

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2. The precedent was Garcia v. PSRB, 117 Or App 172, 173, 843 P2d 465 (1992), in which the Court of Appeals held that medical reports that had been prepared nine months to a year before a PSRB hearing "did not purport to discuss petitioner's mental condition at the time of the hearing." This court was not asked to review the Garcia decision.

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3. If the condition persists, there is no separate issue as to whether applicant would be a danger to others.

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4. Applicant's arguments are based in large part on Squire's testimony, but PSRB was not required to accept that testimony without considering the rest of the record. See Martin, 312 Or at 167 ("PSRB does not count the witnesses; it weighs the evidence"). And, in light of the other evidence in the record, PSRB permissibly could have rejected Squire's testimony.

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5. ORS 183.470(2) provides:

"A final order shall be accompanied by findings of fact and conclusions of law. The findings of fact shall consist of a concise statement of the underlying facts supporting the findings as to each contested issue of fact and as to each ultimate fact required to support the agency's order."

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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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