S45678 Macy v. Blatchford

SUPREME COURT CASES

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State: Oregon

Docket No: CC9407-04746

Case Date: 08/03/2000

Filed: August 3, 2000

IN THE SUPREME COURT OF THE STATE OF OREGON

DANITA J. MACY
and LAWRENCE B. MACY,

Petitioners on Review,

DOUGLAS M. BLATCHFORD, M.D.,

Respondent on Review,

and

PHILLIP S. ALBERTS, M.D.,

Defendant.

(CC 9407-04746; CA A93045; SC S45678)

En Banc

On review from the Court of Appeals.*

Argued and submitted September 10, 1999.

Kathryn H. Clarke, Portland, argued the cause and filed the brief for petitioners on review.

Lindsey H. Hughes, of Keating Jones Bildstein Hughes & Yelnosky, P.C., Portland, argued the cause and filed the brief for respondent on review.

D. Lawrence Wobbrock, Michael Banks, and Robert K. Udziela, of Pozzi Wilson Atchison LLP, Portland, filed the briefs for amicus curiae Oregon Trial Lawyers Association.

GILLETTE, J.

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

*Appeal from Multnomah County Circuit Court,

Harl H. Haas, Judge.

154 Or App 313, 961 P2d 873 (1998).

GILLETTE, J.

In this medical malpractice action, plaintiffs Danita and Lawrence Macy challenge a trial court ruling that prevented them from introducing evidence at trial that Dr. Blatchford (defendant) had a sexual relationship with Danita Macy (1) at the time when the Macys assert that he negligently treated her for persistent and debilitating pelvic pain. The Court of Appeals affirmed that ruling, specifically holding that the trial court did not err in granting defendant's motion in limine to exclude any evidence that he and Macy had a relationship of that kind. Macy v. Blatchford, 154 Or App 313, 329, 961 P2d 873 (1998). The Macys sought review by this court, and we allowed their petition to consider whether and how evidence of a sexual relationship might be relevant to a claim that a physician's treatment of a patient was negligent. We conclude that such evidence is relevant to one of the Macys' allegations, viz., that defendant was negligent in failing to obtain Macy's informed consent to recommended surgery. We therefore reverse the decision of the Court of Appeals on that ground.

In January 1992, Macy consulted with defendant, a gynecologist, about severe and persistent pelvic pain. Macy had complained to defendant about pelvic pain previously, in 1982 and in 1985. Dr. Alberts examined Macy and performed a laparoscopy in February 1992, in the course of which he removed an endometrioma (an abnormal growth of uterine tissue outside the uterus) from Macy's left ovary. After reviewing Dr. Alberts' report and a videotape made during the laparoscopic surgery, defendant diagnosed endometriosis, a condition marked by growth of uterine tissue outside the uterus.

In May 1992, Macy again complained to defendant about pelvic pain. Defendant recommended additional laparoscopic surgery, including removal of Macy's left ovary and fallopian tube. On June 3, 1992, defendant performed that surgery. Afterwards, Macy continued to suffer pelvic pain. Defendant then discussed with Macy the possibility of removing her right ovary and fallopian tube, along with her uterus. Macy agreed to the additional surgery, which defendant performed on August 20, 1992. Macy's pelvic pain did not subside after the second surgery. In fact, she began to suffer from new pain in her left side and back. Ultimately, Macy consulted a different physician, Dr. Ellis, about the latter pain. Ellis determined that Macy's left ureter -- the tube connecting the kidney to the bladder -- was obstructed, and performed surgery to correct the problem. Ellis believed that defendant inadvertently had stapled Macy's ureter during the June 1992 surgery, thereby causing the obstruction and related pain. (2)

In 1994, the Macys filed the present malpractice action against defendant. In their complaint, they alleged four specifications of negligence -- that defendant had been negligent in: (1) stapling Macy's ureter during the June 1992 surgery; (2) failing to ascertain that Macy's continuing pain after the June 1992 surgery arose from the obstructed ureter; (3) recommending the August 1992 surgery; and (4) failing to obtain Macy's informed consent for the August 1992 surgery. Defendant's answer denied all four specifications of negligence.

Shortly before trial, the Macys moved to amend their complaint to include a fifth specification -- that defendant had been negligent in continuing his physician-patient relationship with Macy after entering into a personal, sexual relationship with her. In submitting their motion, the Macys asserted that defendant would not be prejudiced by the addition of that specification, because he and his attorneys had been aware from the beginning that the Macys intended to make an issue of the alleged personal relationship.

Defendant opposed the motion to amend, arguing that the amendment was time-barred, that its inclusion would be unfairly prejudicial, and that the Macys had failed to allege any injury related to that amendment. Defendant also filed a motion in limine to exclude any evidence of a sexual relationship between Macy and defendant. Defendant argued that any such evidence was unfairly prejudicial, OEC 403, and that it was irrelevant to the specifications of negligence that the Macys had pleaded, OEC 402. Ultimately, the trial court denied the Macys' motion to amend and granted defendant's motion in limine. (3) A jury thereafter returned a verdict in favor of defendant.

The Court of Appeals affirmed the trial court's rulings concerning the motion to amend and the motion in limine. With regard to the motion in limine, the court opined that the evidence of a sexual relationship between defendant and Macy was not admissible, because it was not relevant to any of the specifications of negligence that the Macys had pleaded. Macy, 154 Or App at 326-29. The Court of Appeals also concluded that, even if erroneous, the denial of the Macys' motion to amend could not amount to reversible error, because the Macys had suffered no actual prejudice from that ruling. The court explained that the theory underlying the amendment -- that Macy would not have undergone the August 1992 surgery if she had been referred to another physician -- was defeated by a special finding by the jury that defendant's surgery recommendation was one that could have been made in compliance with the applicable standard of care. Id. at 331.

In their petition to this court, the Macys challenge only the Court of Appeals' affirmance of the trial court's order granting defendant's motion in limine. They argue that, contrary to the Court of Appeals' reasoning, evidence of a sexual relationship between defendant and Macy was relevant to the third (negligence in recommending the August 1992 surgery) and fourth (negligence in failing to obtain informed consent) specifications of negligence in their complaint. (4) In considering those arguments, we are mindful of the relatively low threshold of relevance that is required under the Oregon Evidence Code. Under OEC 401, evidence is relevant if it has "any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence." (Emphasis added.)

The Macys argue that evidence of a sexual relationship between defendant and Macy is relevant to their third specification, because it supports an inference that, at the time that he recommended additional surgery, defendant lacked the objectivity that is required of physicians in their treatment of patients. The Court of Appeals rejected that theory, reasoning that the standard of care for medical practitioners does not delve into the practitioner's state of mind and requires only that his or her treatment of patients be objectively reasonable:

"The question presented by the third specification was whether defendant's recommendation of the August 1992 surgery was objectively reasonable given the totality of plaintiff's medical circumstances. * * * Factors bearing on defendant's subjective state of mind were irrelevant to that objective inquiry."

Macy, 154 Or App at 326-27 (emphasis in original).

The Macys argue that the foregoing reasoning is "just plain wrong." They contend that, because defendant's conduct must be measured against a standard set by his own profession and because "everyone," including the medical profession as a whole, understands that physicians must be dispassionate and objective when making treatment decisions, maintaining an objective mental state is part of the standard of care that is applicable in this case. Thus, they conclude, any fact suggesting that defendant lacked objectivity in making his treatment recommendations to Macy is relevant and admissible to show that he was negligent.

We are not persuaded. The standard of care that is applicable to the medical profession requires physicians to "use that degree of care, skill and diligence that is used by ordinarily careful physicians * * * in the same or similar circumstances in the community of the physician * * * or a similar community." ORS 677.095(1); see also Creasey v. Hogan, 292 Or 154, 163, 637 P2d 114 (1981) (stating standard). That standard is an objective one; it provides no ground for delving into a physician's subjective state of mind. Physicians may violate their ethical duties if they fail to maintain the requisite clear and objective state of mind -- for example, if they work while intoxicated or while their judgment is clouded by a relationship with a patient. But if, despite their less than optimal mental and emotional condition, their actual treatment of a patient reflects the appropriate degree of care, they cannot be held liable in negligence.

This court has suggested as much in its cases. For example, in Eckleberry v. Kaiser Foundation et al, 226 Or 616, 624, 359 P2d 1090 (1961), the court considered a plaintiff's requested instruction to the effect that a specialist has a duty to "possess[] that degree of learning and skill ordinarily possessed by specialists * * * in the same * * * field." The court concluded:

"The plaintiff's requested instruction was clearly erroneous. Under the requested instruction, the test of whether or not the practitioner was negligent is based upon his knowledge of his professed art. A licensed practitioner of the healing art of medicine is presumed to have the necessary medical knowledge to practice his profession. The law cannot equate the mental ability of various individuals; it seeks only to fix a standard by which a jury may determine whether or not the practitioner has properly performed his duties toward his patient."

Id. at 624-25 (emphasis added).

Similarly, in Rogers v. Meridian Park Hospital, 307 Or 612, 772 P2d 929 (1989), the court considered the correctness of the then-standard error-of-judgment instruction. That instruction provided, inter alia, that, when there are differences of opinion among members of the medical profession as to the proper course of treatment, a physician must exercise "reasonable judgment." Id. at 615. The court concluded that the instruction in question was confusing and that its use was reversible error. It explained that the instruction "makes it appear that reasonable judgment is the crucial issue. It is not. In fact, reasonable judgment is irrelevant if the treatment option selected provides reasonable care. A doctor may not know that there is more than one treatment option, or the doctor may adhere only to one option, unreasonably rejecting all others. In both of these instances the doctor, by ignoring or rejecting all other treatment options, may not be exercising reasonable judgment. Nevertheless, the doctor is not liable for negligence if the treatment furnished is consistent with reasonable care."

Id. at 619 (emphasis in original).

In the present case, the jury had to determine in addressing the Macys' third specification of negligence whether defendant's recommendation for the August 1992 surgery was objectively reasonable, i.e., whether that recommendation departed from the treatment that other gynecologists in the community exercising ordinary care would have offered. Defendant's subjective frame of mind in making that recommendation was not relevant to that issue. Thus, at least insofar as the Macys sought to offer evidence of a sexual relationship to prove something about defendant's state of mind in the context of that specification, the trial court properly excluded it from the jury's consideration. In that respect, the trial court and Court of Appeals did not err. (5)

The Macys next argue that the excluded evidence was relevant to their fourth specification, which alleged negligence:

"[i]n failing to obtain Plaintiff Danita Macy's informed consent to surgical removal of her uterus and right ovary, in that Defendant * * * did not advise her that there were medical and conservative surgical treatment options available as alternatives to sterilization and menopause, and he did not ask if she wanted detailed information about each of these alternatives."

The Macys contend that the duty of physicians to obtain informed consent includes a duty to explain that there may be alternative methods of treatment and that the duty presupposes that the patient is in a condition to understand the information that is being conveyed. In view of that presupposition, the Macys argue, evidence that shows that a physician was aware that a patient was not capable of understanding a physician's explanation is relevant to whether the physician's actions met the applicable standard of care. In the Macys' view, evidence of a sexual relationship between defendant and Macy thus is relevant, because it would support a conclusion that Macy lacked the state of mind that the standard of care implies, i.e., such evidence would tend to prove that Macy would trust defendant's treatment choice implicitly and would be incapable of listening objectively to any information about alternatives that defendant might have presented.

The Court of Appeals did not address that argument. It concluded on a different ground that the evidence at issue was irrelevant, focusing on what it perceived as an inadequacy in the Macys' pleading:

"[P]laintiff's state of mind -- her subjective willingness to seek additional information -- is irrelevant to her informed consent claim, as that claim is pleaded. As noted, plaintiffs' informed consent specification focuses solely on defendant's conduct, particularly whether defendant told plaintiff that 'there were medical and conservative surgical treatment options available * * *.' Thus, even assuming that evidence pertaining to the alleged relationship might bear on plaintiff's state of mind, her state of mind was irrelevant to the informed consent specification."

Macy, 154 Or App at 329 (emphasis added).

We do not agree with that interpretation of the Macys' informed consent specification. The Macys pleaded that defendant failed to "obtain Plaintiff Danita Macy's informed consent" -- words that relate to Macy's state of mind when she consented to the second surgery. The issues were whether Macy "consented" and whether her consent was "informed." A physician's failure to "advise" of treatment alternatives may arise solely out of a physician's silence, but it also may arise in circumstances when the physician mouths the words to a patient who, for whatever reason, at that time lacks the capacity to listen to or to understand the significance of what is being said. In short, we are not persuaded by the Court of Appeals' conclusion that the Macys' pleadings are a barrier to considering their theory. We turn to the theory itself.

The standard of care with respect to informed consent in medical malpractice cases is codified at ORS 677.097. See Zacher v. Petty, 312 Or 590, 593, 826 P2d 619 (1992) (so stating). ORS 677.097 provides, in part:

"(1) In order to obtain the informed consent of a patient, a physician * * * shall explain the following:

"(a) In general terms the procedure or treatment to be undertaken;

"(b) That there may be alternative procedures or methods of treatment, if any; and,

"(c) That there are risks, if any, to the procedure or treatment.

"(2) After giving the explanation specified in subsection (1) of this section, the physician * * * shall ask the patient if the patient wants a more detailed explanation. If the patient requests further explanation, the physician * * * shall disclose in substantial detail the procedure, the viable alternatives and the material risks unless to do so would be materially detrimental to the patient."

Because the legislature defined informed consent by statute, we must attempt to determine its intent with regard to the relevance of the patient's state of mind. To do so, we employ the analysis set out in PGE v. Bureau of Labor and Industry, 317 Or 606, 859 P2d 1143 (1993). Under PGE, we first consider the text and context of ORS 677.097, and proceed to other considerations only if text and context are inconclusive. Id. at 610-11.

In our view, it is significant that the statute requires a physician to "explain" the treatment, alternatives, and risks to his or her patient. "Explain" means "to make plain or understandable: clear of complexities or obscurity: * * * provide an understanding of [something]." Webster's Third New Int'l Dictionary, 801 (unabridged ed 1993). Explanation implies more than a mere correct statement of the facts. An explanation clarifies an issue or makes it understandable to the recipient and, almost by definition, takes into account the mental state and capabilities of the recipient. For example, a physician can mouth words to an infant, or to a comatose person, or to a person who does not speak his or her language but, unless and until such patients are capable of understanding the physician's point, the physician cannot be said to have "explained" anything to any such person.

We also find it significant that the "explanation" requirement occurs in the context of describing what must be done to obtain a patient's informed consent. An "explanation" is "something that explains or that results from the act or process of explaining." Id. In that context, it is clear that the whole point of explaining the required information is to ensure that patients have the information that they need to decide whether to agree to the recommended treatment. The concept presupposes that the patient is capable not only of understanding the risks of and alternatives to a proposed treatment, but of using that information in a rational decision-making process.

It follows that evidence that a patient did not, for whatever reason, have the capacity to understand and use what a physician told her would be relevant to show that the physician failed to obtain the patient's informed consent. That inquiry is not limited to evidence that purports to demonstrate an absolute inability to process a physician's words. In the context of the present case, for example, a reasonable juror might believe that a sexual relationship between defendant and Macy would undermine Macy's ability to listen objectively to and utilize information provided by the physician, in making an independent and informed decision about her health care. (6)

For the foregoing reasons, we conclude that evidence of a sexual relationship between a physician and patient may be relevant to show that the physician failed to obtain the patient's informed consent for treatment, and that the evidence that the Macys offered here was relevant in that respect. (7) The trial court therefore erred when it concluded that any evidence respecting a sexual relationship between defendant and Macy was irrelevant to the Macys' fourth specification of negligence.

Defendant contends that, even if the evidence at issue was relevant to the Macys' fourth specification of negligence, it was so unfairly prejudicial that the trial court cannot be faulted for excluding it. See OEC 403 (relevant evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice). In that regard, defendant argues that admitting the evidence would have complicated the case unduly by inviting the jury to decide the case on a highly inflammatory and nonmedical ground. Defendant suggests, moreover, that the trial court in this case in fact did rule that the evidence was inadmissible under OEC 403 and that such a determination should not be reversed unless it amounts to an abuse of discretion.

Turning to the latter argument first, we do not agree with defendant's characterization of the trial court's rulings. Although the trial court expressly labeled the evidence as "highly inflammatory" and "prejudicial," it never decided that the evidence was unfairly prejudicial or that it ought to be excluded under OEC 403.

On the merits, defendant's argument respecting OEC 403 is not well taken. The evidence in question is central to the Macys' theory under their fourth specification of negligence. Its admission may be harmful, even devastating, to defendant's position, but relevant evidence often has that effect. On remand, the Macys are entitled to have the evidence considered by the trier of fact.

We hold that the trial court erred in granting defendant's motion to exclude for all purposes any evidence suggesting the existence of a sexual relationship between defendant and Macy. Although such evidence is not relevant to the Macys' other specifications of negligence, it is relevant to the fourth specification pertaining to informed consent and, particularly, to the question whether, under the circumstances, Macy was in a condition to understand and to utilize medical information that the informed consent statute, ORS 677.097, presumes. The Macys are entitled to a new trial under their fourth specification of negligence. (8)

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

1. Hereafter, we refer to plaintiff Danita Macy as "Macy" and to plaintiffs collectively as "the Macys."

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2. Macy continued to suffer from pelvic pain after Ellis corrected the obstructed ureter. She consulted a new gynecologist, Dr. Redwine, about her continuing pelvic pain. Like defendant, Redwine suspected endometriosis. With Macy's consent, Redwine performed a final surgery to remove endometrial tissue. As of February 1996, Macy's pelvic pain substantially had resolved.

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3. The Macys made an offer of proof that included: (1) testimony by a medical expert about the various ways that a sexual relationship between a patient and physician might affect the physician's ability to comply with the standard of care applicable to physicians; and (2) Macy's testimony that she and defendant had been intimate physically and that that relationship might have affected her ability to make decisions about her own health care.

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4. The Macys do not assert that they are entitled to a new trial respecting their first and second specifications of negligence.

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5. The Macys also suggest that evidence of a sexual relationship might be relevant to the third specification to resolve any factual dispute about Macy's "medical circumstances" at the time of treatment. In particular, the Macys argue, that the evidence at issue might raise questions in the minds of the jurors about the accuracy of defendant's evaluation of Macy's medical history and symptoms. However, because the Macys never made that argument to the trial court, we decline to consider it.

The Macys assert that they did raise this "credibility argument" with regard to both the third and fourth specifications, because it is inherent in one of the central arguments that they made to the trial court -- that the evidence at issue showed that defendant lacked the objectivity that was required of him as a physician when he recommended the August 1992 surgery. However, after having examined the Macys' memorandum in opposition to the motion in limine and the transcript of the proceedings during which the motion was discussed, we are persuaded that the relevance of the evidence to the credibility of defendant's story was not raised in the trial court, either expressly or as a necessary corollary to the "objectivity" argument that the Macys did articulate.

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6. In fact, the Macys' offer of proof included Macy's testimony that her relationship with defendant might have interfered with her ability to make decisions about her health care.

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7. Our holding that the evidence was relevant on this issue makes it unnecessary for this court to resolve whether the evidence also was relevant for other purposes, such as cross examination, and we therefore do not address that question.

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8. The foregoing concludes our discussion of the sole question that the Macys raised in their petition to this court. In their brief on the merits, the Macys raise a different question, one pertaining to the trial court's denial of their motion to amend their complaint. Although this court has discretion to consider that question, which was before the Court of Appeals, we decline to exercise that discretion in this case. ORAP 9.20(2). See State v. Castrejon, 317 Or 202, 211-12, 856 P2d 616 (1993) (explaining scope of court's discretion under rule).

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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.
1

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When Judge Collins learned that the transcript had been released -following news reports that cited the transcript -- he called a meeting with Markham and the accused and told them to release no other transcripts. The testimony from the accused, Markham, and Judge Collins differs regarding that meeting. The accused described the meeting as relaxed and said that Judge Collins had stated that the release of the transcript was permissible. Markham testified that Judge Collins was "very concerned" about the release of the transcript and that Judge Collins said that the accused's disclosure violated the law. Judge Collins testified that the accused did not get his consent to release the transcript, but that he was not sure if the accused needed to do so under the circumstances of the case, particularly given the presence of the press at the hearing. In Judge Collins's description, the meeting was not contentious; although he requested that the parties refrain from releasing any additional transcripts, he did not "feel like [he] needed to be firm" and so did not issue an order barring further releases. In April 2008, several months after the juvenile case was resolved, Tim Loewen, director of the Yamhill County Juvenile Department, reported the accused's action of releasing the transcript to the Bar. After investigating the matter, the Bar charged the accused with violating RPC 8.4(a)(4)2 by releasing to the press "information
2

RPC 8.4(a) provides, in relevant part: "It is professional misconduct for a lawyer to: "* * * * * "(4) engage in conduct that is prejudicial to the administration of

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appearing in the record" of a juvenile case without court consent, in violation of ORS 419A.255(1) and (3).3 The Bar alleged that the accused had "usurped" Judge Collins's authority to control the proceeding by not seeking the court's consent before releasing the transcript, and thereby had caused prejudice to the administration of justice. In the proceeding before the trial panel, the accused argued that his release of the transcript did not violate ORS 419A.255 for each of three independent reasons: (1) the transcript that he had prepared was not a part of the record of the case and so was not subject to ORS 419A.255; (2) Judge Collins had consented to the release of the information contained in the transcript when he allowed the press to attend and report on

justice[.]"
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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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