S46243 State v. Soldahl

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State: Oregon

Docket No: CC96-1257

Case Date: 12/21/2000

Filed: December 21, 2000

IN THE SUPREME COURT OF THE STATE OF OREGON

STATE OF OREGON,

Petitioner on Review,

GERALD NORMAN SOLDAHL,

Respondent on Review.

(CC 96-1257; CA A96217; SC S46243)

En Banc

On review from the Court of Appeals.*

Argued and submitted March 7, 2000.

Rolf C. Moan, Assistant Attorney General, Salem, argued the cause and filed the briefs for petitioner on review. With him on the briefs were Hardy Myers, Attorney General, and Michael D. Reynolds, Solicitor General.

Robin A. Jones, Deputy Public Defender, Salem, argued the cause for respondent on review. With her on the brief was David E. Groom, Public Defender.

LEESON, J.

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

*Appeal from Clackamas County Circuit Court, Richard L. Unis, Senior Judge. 157 Or App 578, 972 P2d 898 (1998).

LEESON, J.

In this criminal proceeding, the issue is whether the trial court erred in granting defendant's motion to suppress evidence obtained after a police officer stopped defendant's car. The trial court held that, because the officer who stopped defendant lacked probable cause to believe that defendant was committing a traffic infraction, the evidence must be suppressed. The Court of Appeals affirmed. State v. Soldahl, 157 Or App 578, 972 P2d 898 (1998). We allowed the state's petition for review. For the reasons that follow, we reverse the decision of the Court of Appeals, reverse the order of the trial court, and remand the case to the trial court for further proceedings.

The material facts are not in dispute. On February 22, 1996, Clackamas County Deputy Sheriff Millette was on duty wearing plain clothes while he conducted surveillance of the apartment where defendant and his girlfriend lived. Millette was watching defendant's apartment, because he believed that Harland and Kashuba, who were wanted on felony arrest warrants, were in the apartment hiding from police. Eventually, Millette observed two people drive away from the apartment in a car that was registered to defendant's girlfriend. Millette did not see the two people well enough to identify them when they entered the car, but he believed that they might be Harland and Kashuba. He followed the car in an unmarked police car.

In an attempt to verify whether Harland and Kashuba were in the car, Millette pulled even with the driver-side window. The tint on the window was so dark that Millette could not see who was inside. Millette knew that the tinted driver-side window furnished probable cause to stop the car for a traffic infraction. ORS 815.220; (1) ORS 810.410(3)(b) (1995). (2)

Because Millette was concerned that he might compromise his surveillance if he stopped the car himself, he called the police dispatcher to request that some other officer make the stop. An unidentified state trooper heard Millette's request and volunteered to stop the car, because he was closer to it than any other Clackamas County police officer. Millette did not tell the trooper that the tinted window provided the basis for the stop. Rather, he stated that there were "possible wanted people in the car."

After the trooper stopped defendant's car, Millette stopped his car behind the trooper's car. At that point, Millette realized that the driver was defendant, not Harland. Millette engaged defendant in conversation and persuaded defendant to assist him in coaxing Harland and Kashuba out of defendant's apartment so that Millette could arrest them. During a subsequent conversation with defendant as defendant was returning to his apartment, defendant told Millette that his driver license had been revoked. Thereafter, defendant was indicted for felony driving while revoked. ORS 811.182 (1995).

Before trial, defendant moved to suppress

"all statements made by defendant and all evidence gathered as a result of [the traffic] stop on the grounds * * * that the stop was [made] without reasonable suspicion to believe a crime had been committed and without probable cause to believe an infraction had occurred[.]"

Defendant relied on ORS 131.615 (1995) for his argument that the trooper did not have reasonable suspicion to believe that a crime had been committed, and Article I, sections 9 and 12, of the Oregon Constitution, for his argument that the trooper lacked probable cause to believe that a traffic infraction had occurred. (3) The state opposed defendant's motion. It argued that Millette had probable cause to stop the car because he had observed the unlawful tint in the window of defendant's car. Accordingly, it contended, under the "collective knowledge" doctrine, Millette could ask the trooper to stop the car. Under that doctrine, the state argued, so long as any officer involved in requesting or making a stop for a traffic infraction has probable cause, the stop is valid. Defendant responded that the collective knowledge doctrine required Millette to communicate to the trooper the basis for the stop so that the trooper himself could form subjective probable cause. Because Millette did not tell the trooper that the tinted window provided the basis for the stop, defendant concluded, the trooper did not have probable cause to stop defendant's car.

In colloquy with counsel on defendant's motion to suppress, the trial court explained that, in its view, Millette did not have reasonable suspicion to believe that Harland and Kashuba were in the car. (4) The trial court then identified ORS 810.410(3)(b) and this court's decision in State v. Matthews, 320 Or 398, 884 P2d 1224 (1994), as providing the proper framework for analyzing whether the trooper had probable cause to stop the car. According to the trial court, this court's holding in Matthews -- that a stop for a traffic infraction under ORS 810.410(3)(b) requires probable cause -- means that the officer who makes the stop must have subjective probable cause to believe that an infraction has occurred. The trial court reasoned that the trooper who made the stop did not have probable cause to believe that a traffic infraction had occurred, because Millette had not told the trooper about the traffic infraction. The trial court therefore granted defendant's motion to suppress.

The Court of Appeals affirmed. Soldahl, 157 Or App at 584. That court reasoned that an essential element of the collective knowledge doctrine is that an officer who makes a stop for a traffic infraction must himself or herself "'subjectively believe' that the requesting officer had sufficient grounds for the arrest or stop." Id. (citing State v. Koester, 117 Or App 139, 144, 843 P2d 968 (1992)) (emphasis in original). The Court of Appeals faulted the state for not offering evidence of the trooper's subjective belief at the hearing on defendant's motion to suppress, and Millette for not telling the trooper that the tinted window provided the basis for the stop. The Court of Appeals held that, because there was no evidence that the trooper subjectively believed that he had probable cause to stop defendant's car for the traffic infraction, the stop was invalid. Id. We allowed the state's petition for review to determine whether, under the collective knowledge doctrine, the trooper had authority to stop defendant's car.

ORS 810.410(3)(b) (1995) provides that a police officer may stop and detain a person for a traffic infraction. As noted, this court has held that, under Article I, section 9, an officer must have probable cause to believe that a traffic infraction has occurred. Matthews, 320 Or at 402-03. In State v. Owens, 302 Or 196, 204, 729 P2d 524 (1986), this court held that probable cause has both a subjective and an objective component:

"An officer must subjectively believe that a crime has been committed and thus that a person or thing is subject to seizure, and this belief must be objectively reasonable in the circumstances."

Whether an officer had subjective probable cause may be inferred from the officer's conduct if no evidence provides a contrary explanation for that conduct. State v. Belt, 325 Or 6, 11-12, 932 P2d 1177 (1997).

In this case, defendant concedes that Millette had both subjective and objective probable cause to stop defendant's car for the traffic infraction of driving with tinted windows. The issue is whether Millette had to communicate his knowledge to the trooper so that the trooper also could form a subjective belief that there was probable cause to stop defendant's car for the traffic infraction. As noted, the Court of Appeals held that the collective knowledge doctrine required Millette to do so. Soldahl, 157 Or App at 584. In our view, the Court of Appeals misunderstood the collective knowledge doctrine, which also is known as the fellow-officer rule. We turn to an explanation of that doctrine, which was discussed most recently in State v. Pratt, 309 Or 205, 785 P2d 350 (1990).

In Pratt, the defendant operated a long-haul trucking company, North Star Trucking. One of North Star's employees was murdered, triggering a police investigation. While the officers were at North Star's office, the defendant called. The officers told the defendant about the murder, and the defendant told them that he was on his way to Phoenix and would be returning in a few days. The defendant also described his truck. Subsequently, Oregon officers sent a request by teletype to Arizona police officers asking them to arrest the defendant and to seize his truck. An Arizona officer did so. Id. at 215.

The defendant moved to suppress all evidence, arguing that "'[t]here was simply inadequate evidence that [the arresting officer in Arizona] had a reasonable belief [that] the Oregon officers had information sufficient to establish probable cause.'" Id. at 216. This court affirmed the trial court's denial of defendant's motion. Id. at 217. It explained that the Arizona officers reasonably had relied on the teletype message:

"A peace officer who does not himself have probable cause to arrest a felony suspect nonetheless may arrest the suspect if he reasonably believes that the officer or officers who have requested the arrest do have probable cause to make that arrest and if probable cause to arrest does, in fact, exist."

Id. at 216 (emphasis in original omitted; emphasis added). The court held that police officers reasonably may rely on messages from fellow officers. Id. at 217.

The collective knowledge doctrine focuses on the shared knowledge of the police as a unit rather than merely on the knowledge of the officer who acts. The doctrine therefore permits a police officer to act if the officer reasonably relies on instructions from an officer who has probable cause. As this court explained in State v. Groda, 285 Or 321, 324, 591 P2d 1354 (1979):

"[T]he searching officer personally must have information which constitutes probable cause, or the searching officer must be directed to make the search by an officer who personally has that knowledge."

(Emphasis added.) Pratt did not modify the collective knowledge doctrine, as explained in Groda, to require officers who act at the direction of fellow officers to form independent subjective probable cause. However, Pratt did identify the rationale for the collective knowledge doctrine:

"Officers must be able to rely on such messages from fellow officers elsewhere in order to counteract the high degree of mobility criminals enjoy in this society. To hold otherwise would either prevent emergency requests for assistance, or would require that such requests contain long evidentiary summaries which each individual officer then would have to evaluate for probable cause, perhaps while driving down a highway following a suspect."

309 Or at 217 (footnote omitted).

Pratt involved application of the collective knowledge doctrine to an arrest. Groda applied the doctrine to a search. If an officer reasonably may rely on a fellow officer's direction to arrest or to search, then it follows that an officer reasonably may rely on a fellow officer's direction to stop a vehicle for a traffic infraction.

The collective knowledge doctrine in no way undermines the probable cause requirement. The doctrine merely views law enforcement agencies as a unit. As a unit, officers may direct one another to carry out lawful police activities. However, the state retains the obligation at trial to establish that police action was initiated by an officer who had both objective and subjective probable cause.

We turn to the facts in this case. Millette testified that he subjectively believed that he had probable cause to stop defendant's car. His objective basis for that belief was his observation of the tinted window in defendant's car. As noted, defendant concedes that Millette had probable cause to stop his car. (5) Rather than making the stop himself, however, Millette requested that another officer make it for him. Consistent with this court's holdings in Pratt and Groda, we hold that, under the collective knowledge doctrine, the trooper who responded to Millette's request lawfully stopped defendant's car, because he reasonably acted at the request of an officer who had probable cause to believe that a traffic infraction had occurred. The trial court erred in granting defendant's motion to suppress.

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

1. ORS 815.220 provides, in part:

"(1) A person commits the offense of obstruction of vehicle windows if the person drives or moves on any highway or owns and causes or knowingly permits to be driven or moved on any highway any vehicle with windows obstructed in a manner prohibited under this section.

"(2) The windows of a vehicle are obstructed in a manner prohibited by this section if any material that prohibits or impairs the ability to see into or out of the vehicle is upon any vehicle window described in this subsection. * * * This subsection only applies to the following windows of the vehicle:

"* * * * *

"(c) The side windows on either side forward of or adjacent to the operator's seat."

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2. ORS 810.410 (1995) provides, in part:

"(3) A police officer:

"* * * * *

"(b) May stop and detain a person for a traffic infraction for the purposes of investigation reasonably related to the traffic infraction, identification and issuance of citation."

In State v. Matthews, 320 Or 398, 401, 884 P2d 1224 (1994), this court explained that ORS 810.410(3)(b)

"states the purpose for which an officer may detain a person, i.e., for investigation, identification, and citation concerning a traffic infraction. However, the statute is silent on the question of the level of information about the traffic infraction that the officer must possess in order to effect a lawful stop."

(Emphasis in original.) The court held that an officer must have probable cause under Article I, section 9, of the Oregon Constitution, to believe that a traffic infraction has occurred before executing a traffic stop under ORS 810.410(3)(b). Id. at 402-03. Thus, although ORS 810.410(3)(b) does not contain a probable cause requirement, this court has held that the Oregon Constitution requires an officer to have probable cause before making a stop for a traffic infraction.

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3. ORS 131.615 (1995) provides, in part:

"(1) A peace officer who reasonably suspects that a person has committed a crime may stop the person and, after informing the person that the peace officer is a peace officer, make a reasonable inquiry."

Article I, section 9, provides:

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

Article I, section 12, provides:

"No person shall be put in jeopardy twice for the same offence (sic), nor be compelled in any criminal prosecution to testify against himself."

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4. The Court of Appeals agreed, Soldahl, 157 Or App at 583, and that issue is not before this court.

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5. Defendant asserts that Millette nonetheless might have lacked authority to stop defendant's car because he was not in uniform. ORS 810.400 provides that any police officer attempting to enforce Oregon's traffic laws "shall be in uniform or shall conspicuously display an official identification card showing the officer's lawful authority." However, as the trial court noted, the relevant inquiry is whether the trooper lawfully could stop the car, not whether ORS 810.400 prevented Millette from making the stop.

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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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