S46306 Ahern v. OPEU

SUPREME COURT CASES

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State: Oregon

Docket No: CC99-CV-0007,99-CV-0008

Case Date: 10/15/1999

FILED: October 15, 1999

IN THE SUPREME COURT OF THE STATE OF OREGON

MICHAEL AHERN,

Respondent,

OREGON PUBLIC EMPLOYEES
UNION,

Appellant.

_________________________________________________________________

JANET BROWN
d.b.a. Coach Works,

Respondent,

OREGON PUBLIC EMPLOYEES
UNION,

Appellant.

(CC 99-CV-0007, 99-CV-0008; SC S46306, S46307)

(Cases Consolidated for Argument and Opinion)

En Banc

On appeal from an order of an injunction issued by the Jefferson County Circuit Court.

Argued and submitted September 10, 1999.

B. Carlton Grew, of Oregon Public Employees Union, Salem, argued the cause and filed the briefs for appellant.

Gregory P. Lynch, of Hurley, Lynch & Re, P.C., Bend, argued the cause and filed the briefs for respondents.

LEESON, J.

The injunctions ordered by the circuit court are vacated. The cases are remanded to the circuit court for further proceedings.

LEESON, J.

In this case, a trial court issued a preliminary injunction against defendant Oregon Public Employees Union (OPEU), enjoining it from performing acts that the court concluded constituted an unfair labor practice under ORS 243.672(2)(g).(1) OPEU appealed under ORS 662.120, which provides for appeal to the Supreme Court when any court or judge thereof "issues or denies any temporary injunction in a case involving or growing out of a labor dispute." Plaintiff(2) filed a motion to dismiss the appeal, arguing that ORS 662.120 is not applicable to this case because this is a tort action, not a matter involving or growing out of a labor dispute. This court determined that, at least for the purposes of inquiring into our appellate jurisdiction, the order was appealable, because it appeared that this case involved or grew out of a labor dispute. Accordingly, this court denied plaintiff's motion to dismiss. This court also issued an order to show cause why the trial court's order should not be vacated and the case dismissed on the ground that, under ORS 243.650 et seq., the Employment Relations Board (ERB) has exclusive jurisdiction of the matter and the trial court lacks subject matter jurisdiction.

The parties have responded both in writing and through oral argument to this court's show cause order. We now hold that, under ORS 243.676, ERB has exclusive jurisdiction to determine whether OPEU committed an unfair labor practice. Accordingly, the trial court lacked jurisdiction to enter the injunction that it entered in this case. We therefore vacate the injunction and remand the case to the circuit court for further proceedings.

The facts are not in dispute. Plaintiff is an elected Jefferson County Commissioner. In 1995, Jefferson County and OPEU entered into a collective bargaining agreement. Before that agreement expired in June 1998, OPEU and Jefferson County began negotiating for a new collective bargaining agreement. On October 1, 1998, OPEU notified ERB that those negotiations had reached an impasse. See ORS 243.712 (prescribing notification requirement and assignment of mediator when bargaining reaches impasse). After mediation failed to resolve the differences between the county and OPEU, OPEU gave ERB notice of its intent to strike, ORS 243.726(2)(c), and the bargaining unit went on strike against Jefferson County in February 1998.

As part of the strike, OPEU members picketed and distributed leaflets at plaintiff's business. Although the leaflets identified several labor-related complaints, they stated:

"This leaflet is for informational purposes only. We have no labor dispute with Ahern Grocery and Deli. We are not asking people to withhold services from Ahern Grocery and Deli. Continue to conduct business with Ahern Grocery and Deli."

On February 23, 1999, plaintiff filed this action against OPEU in Jefferson County Circuit Court, alleging a tort claim for intentional interference with economic relations.(3) To state a claim for that tort, a plaintiff must allege six elements, one of which is that the interference was "accomplished through improper means or for an improper purpose." McGanty v. Staudenraus, 321 Or 532, 535, 901 P2d 841 (1995). Regarding that element, plaintiff's complaint alleges, in part:

"[OPEU] has intentionally and unlawfully interfered with plaintiff's business and business relations in willful violation of ORS 243.672(2)(g), without a proper business purpose, and with the improper objective of causing harm to plaintiff."

(Emphasis added.) Plaintiff's complaint also seeks a permanent injunction preventing OPEU members from picketing in front of his business, asserting that such picketing violates ORS 243.672(2)(g). Additionally, plaintiff filed a motion for a preliminary injunction against OPEU, asserting a violation of ORS 243.672(2)(g).

OPEU opposed plaintiff's motion for a temporary injunction, arguing that ERB has exclusive jurisdiction to determine whether OPEU was engaging in an unfair labor practice. After a hearing on plaintiff's motion, the trial court concluded that it had jurisdiction and stated:

"there has been a violation of the statute, * * * [ORS] 243.672, in that the effect of the picketing is to induce other persons to cease doing business with the governing body member's business, or cease handling transportation in dealing in goods or services."

Accordingly, the trial court granted plaintiff's motion for a preliminary injunction.

As noted, OPEU appealed from that order and this court determined that, for the purposes of resolving the jurisdictional issue, the order was appealable under ORS 662.120. However, because it appeared that this dispute involves public employees subject to ORS 243.650 et seq., this court ordered plaintiff to show cause why the preliminary injunction should not be vacated and the case dismissed on the ground that the trial court lacks jurisdiction over the unfair labor practice alleged in the complaint. We turn to the parties' arguments in response to the show cause order.

Plaintiff argues that the trial court had jurisdiction to enter the injunction because this case is not a labor dispute subject to ERB's jurisdiction. Plaintiff characterizes this case as a tort action between two private parties, namely, plaintiff as a business owner and OPEU. Because the matter is not a labor dispute, plaintiff reasons, "ORS 243.650 et seq., does not prohibit [plaintiff] from seeking damages in civil court for the tortious actions of [OPEU]." Plaintiff also argues that a determination that ERB has exclusive jurisdiction over the tort of intentional interference with economic relations would violate three provisions of the Oregon Constitution, namely, Article I, section 10 (right to remedy), Article I, section 17 (right to jury trial), Article I, section 20 (no privileges to any class of citizens not available on same terms to all citizens); and would violate the Equal Protection Clause of the Fourteenth Amendment to the United States Constitution.

OPEU responds that the trial court entered the temporary injunction based on its finding that OPEU had violated ORS 243.672(2)(g). It argues that, under ORS 243.676, ERB has exclusive jurisdiction to determine whether its conduct constitutes an unfair labor practice and, if there is, to fashion the appropriate remedy. OPEU also argues that plaintiff's constitutional arguments lack merit.

Plaintiff does not dispute that, under ORS 243.676, ERB has jurisdiction over unfair labor practice complaints that occur in the context of labor disputes. Indeed, plaintiff concedes that "ERB has exclusive jurisdiction over labor disputes." (Emphasis added.) As the following discussion reveals, we agree with plaintiff's concession. The question is whether plaintiff nonetheless can avoid ERB's jurisdiction under ORS 243.676 to determine whether an unfair labor practice has been committed by alleging the unfair labor practice under ORS 243.672 as an element of his tort claim. Answering that question requires us to discern the legislature's intent regarding the adjudication of unfair labor practice complaints under ORS 243.676. We do so using the familiar methodology summarized in PGE v. Bureau of Labor and Industries, 317 Or 606, 610-612, 859 P2d 1143 (1993). We look first to the text and context of the statute. If the legislature's intent is clear at that level of analysis, our inquiry is at an end. Id. at 611.

ORS 243.676(1) provides that, whenever a written complaint is filed alleging that any person has engaged in or is engaging in an unfair labor practice as defined by ORS 243.672 or ORS 243.752, ERB must investigate the complaint, conduct a hearing if it determines that a question of law or fact exists, and make factual findings. See Shockey v. City of Portland, 313 Or 414, 419-20, 837 P2d 505 (1992) (explaining statutorily required process). ORS 243.676 also gives ERB authority to impose remedies for an unfair labor practice that include cease and desist orders, ORS 243.676 (2)(b), civil penalties, ORS 243.676(4), and "such affirmative action * * * as necessary to effectuate the purposes of [among other things, PECBA]." ORS 243.676(2)(c).

We turn to statutory context. One of the purposes of PECBA is to

"obligate public employers, public employees and their representatives to enter into collective negotiations with willingness to resolve grievances and disputes relating to employment relations and to enter into written agreements and signed contracts resulting from such negotiations."

ORS 243.656(5). To achieve the goals of PECBA, ORS 243.672(3) provides that "an injured party" -- that is, anyone who has been injured by an unfair labor practice -- may file a complaint with ERB. That statute does not limit ERB's authority over unfair labor practices to complaints brought by employers and employees. ORS 243.650(24) defines an unfair labor practice as "the commission of an act designated an unfair labor practice in ORS 243.672." ORS 243.672(1), in turn, describes acts by a public employer or its designated representative that are unfair labor practices, and ORS 243.672(2) describes acts by a public employee, or a labor organization or its designee, that are unfair labor practices. ERB is the administrative agency vested with responsibility for implementing PECBA.

PECBA is a comprehensive regulatory scheme for resolving public sector labor disputes. Unfair labor practice complaints arise in the context of such labor disputes. Viewed in the context of PECBA's comprehensive regulatory structure, which includes judicial review of final ERB orders, ORS 183.482, we have no doubt that the legislature intended ERB to have exclusive jurisdiction to determine whether an unfair labor practice has been committed. Accordingly, the trial court lacks jurisdiction to make such a determination.

The reasoning in Tracy v. Lane County, 305 Or 378, 752 P2d 300 (1988), supports our conclusion that the trial court lacks jurisdiction to decide plaintiff's unfair labor practice allegation. See Davis v. O'Brien, 320 Or 729, 741, 891 P2d 1307 (1995) (court's prior interpretation of related statute part of context). Tracy required this court to construe ORS 243.752, which, in addition to ORS 243.672(1) and (2), describes conduct that constitutes an unfair labor practice. ORS 243.752 provides, in part:

"A majority decision of the arbitration panel, * * * if supported by competent, material and substantial evidence on the whole record, * * * shall be final and binding upon the parties. Refusal or failure to comply with any provision of a final and binding arbitration award is an unfair labor practice. Any order issued by the Employment Relations Board pursuant to this section may be enforced at the instance of either party or the board in the circuit court for the county in which the dispute arose."

(Emphasis added.) In Tracy, the plaintiffs were county employees who filed a claim in circuit court under the wage claim statute for retroactive pay under an interest arbitration award. Id. at 380. The question on review was whether the circuit court should have withheld its judgment in the case until ERB had the opportunity to exercise its statutory responsibility with respect to the arbitration award. Id. This court held that the trial court lacked jurisdiction to determine whether an arbitration award is final and binding. Id. at 382. The court reasoned that, under ORS 243.752(1), the decision whether an arbitration award is final and binding is entrusted to ERB and that, because the statute "does not accommodate inconsistent rulings," the trial court lacked jurisdiction. Id.

The reasoning in Tracy applies with equal force here. PECBA does not accommodate inconsistent rulings about what acts may constitute an unfair labor practice. Indeed, in PECBA, the legislature has specified the particular disputes over which circuit courts have jurisdiction. See ORS 243.726(3)(a), (c) (providing for equitable relief in circuit court in certain strike situations). With respect to adjudication of whether an unfair labor practice has been committed, the statute makes no provision for circuit court jurisdiction.(4)

In this case, plaintiff's complaint alleges that the improper means by which OPEU intentionally interfered with his economic relations was by engaging in picketing activities in violation ORS 243.672(2)(g). Despite its tort label, the gravamen of plaintiff's complaint is that OPEU has committed an unfair labor practice. In determining whether it has authority to decide a matter, a court must consider the nature of the matter, not the label that a party has placed on it. See Shockey, 313 Or at 418-19 (prescribing methodology for determining whether statutory scheme abrogates common-law remedy). For the reasons explained above, whether OPEU violated ORS 243.672(2)(g) is a matter for ERB to decide. Permitting the trial court to determine, in the course of a tort proceeding, whether an unfair labor practice has occurred would create the danger of inconsistent rulings that this court warned against in Tracy. We hold that the trial court lacks jurisdiction to adjudicate, in the proceeding before it, whether OPEU has committed an unfair labor practice under ORS 243.672(2)(g).

We turn to plaintiff's constitutional claims. As noted, plaintiff argues that "a finding by this court that * * * ERB has exclusive jurisdiction over [plaintiff's] common law tort claim * * * would create significant constitutional difficulties." As we have explained, the gravamen of plaintiff's complaint is that OPEU has committed an unfair labor practice. If plaintiff is asserting that his common law right to seek a remedy for tortious interference with economic relations includes the right to litigate the unfair labor practice allegation in circuit court, he is wrong. Plaintiff's claims of deprivation of various constitutional rights because he cannot plead and prove the unfair labor practice in circuit court thus are not well taken.

The injunctions ordered by the circuit court are vacated. The cases are remanded to the circuit court for further proceedings.

1. ORS 243.672 is part of the Public Employee Collective Bargaining Act (PECBA), ORS 243.650 et seq., and provides, in part:

"(2) Subject to the limitations set forth in this subsection, it is an unfair labor practice for a public employee or for a labor organization or its designated representative to do any of the following:

"* * * * *

"(g) For a labor organization or its agents to picket or cause, induce, or encourage to be picketed, or threaten to engage in such activity, at the residence or business premises of any individual who is a member of the governing body of a public employer, with respect to a dispute over a collective bargaining agreement or negotiations over employment relations, if an objective or effect of such picketing is to induce another person to cease doing business with the governing body member's business or to cease handling, transporting or dealing in goods or services produced at the governing body's business."

(Emphasis added.)

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2. There are two plaintiffs in these proceedings. Both are Jefferson County Commissioners, and both sought and received temporary restraining orders and injunctions against defendant OPEU. The facts in the two cases differ in ways that are not legally significant. For convenience, this opinion refers to plaintiff in the singular and, where relevant, describes the facts only in plaintiff Ahern's case.

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3. On February 17, 1999, Jefferson County filed an unfair labor practice complaint with ERB, alleging that OPEU members violated ORS 243.672(2)(g) by picketing at plaintiff's business premises.

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4. Our holding that ERB has exclusive jurisdiction to determine whether an unfair labor practice has been committed is not inconsistent with Tracy. In that case, the court explained that, "[p]arties may have statutory or common law remedies outside the scope of what ERB may order in an unfair labor practice." Tracy, 305 Or at 382. Under ORS 243.752(1), the refusal or failure to comply with a final and binding arbitration award is an unfair labor practice, and an arbitration award issued by ERB may be enforced in circuit court. In the context of that statute, and the enforcement remedies available to parties, the court referred to ERB's jurisdiction as "primary, even if not exclusive." Id. Under ORS 243.672, the determination whether an unfair labor practice has occurred rests exclusively with ERB.

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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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