S46496 In re Parker

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S46496 In re Parker

State: Oregon

Docket No: OSB97-184,98-4,98-36,98-45

Case Date: 08/17/2000

Filed: August 17, 2000

IN THE SUPREME COURT OF THE STATE OF OREGON

In re Complaint as to the Conduct of
WILLIAM M. PARKER,

Accused.

(OSB 97-184, 98-4, 98-36, 98-45; SC S46496)

En Banc

On review of the decision of a trial panel of the Disciplinary Board.

Argued and submitted November 10, 1999.

William M. Parker, Kirkland, Washington, argued the cause and filed the brief in propria persona.

Jane E. Angus, Assistant Disciplinary Counsel, Oregon State Bar, Lake Oswego, argued the cause and filed the brief for the Oregon State Bar.

PER CURIAM

The accused is suspended from the practice of law for a period of four years, commencing 60 days from the date of filing of this decision.

PER CURIAM

In this lawyer disciplinary proceeding, the Oregon State Bar (Bar) filed an amended complaint against William M. Parker (the accused), charging him with violating the Code of Professional Responsibility, Disciplinary Rule (DR) 1-102(A)(3) (prohibiting conduct involving dishonesty, fraud, deceit, or misrepresentation), DR 1-102(A)(4) (prohibiting conduct prejudicial to administration of justice), DR 1-103(C) (four counts) (requiring cooperation with disciplinary investigation), DR 2-110(A) (prohibiting withdrawal unless lawyer takes steps to avoid foreseeable prejudice to client), DR 6-101(B) (four counts) (prohibiting neglect of legal matter), DR 7-101(A)(2) (three counts) (prohibiting failure to carry out contract of employment), and DR 9-101(C)(4) (requiring prompt payment or delivery of client's property or money).

The accused filed no answer and made no other appearance. A trial panel of the Disciplinary Board entered an order of default. Accordingly, we deem the Bar's allegations to be true. See In re Bourcier, 325 Or 429, 431, 939 P2d 604 (1997) (Bourcier II) (so stating under similar circumstances).

Following entry of the order of default, the two-member trial panel held a hearing on the issue of sanction. Bar Rule of Procedure (BR) 5.8(a). At that hearing, a number of witnesses testified, including several of the accused's former clients and a lawyer involved in the investigation of the accused on behalf of a Local Professional Responsibility Committee (LPRC). The trial panel imposed on the accused a five-year suspension from the practice of law. (1) In this court, the accused argues for no more than a two-year suspension. The Bar argues for a five-year suspension. For the reasons that follow, we conclude that a four-year suspension is the appropriate sanction.

At the outset, we note that the accused acknowledges that, with one exception, he committed the charged violations. (2) We therefore limit our recitation of the facts to those that provide a context for our determination of the appropriate sanction.

The accused's misconduct arose out of his neglect of his law practice between February 1997 and May 1998. Due to his involvement in an out-of-state business, the accused was absent from his Portland law office for days and weeks at a time. He repeatedly failed to respond to his clients' messages and failed to take appropriate action on their behalves. For example, the accused failed to prepare for trial and to communicate with his client in a case in which his client was the plaintiff. Ultimately, the accused agreed to dismiss the case with prejudice without consulting his client. In another case, a client had retained the accused to pursue a personal injury claim on behalf of the client's 12-year-old daughter. Because the accused failed actively to pursue her case, that client eventually terminated the accused's employment, after experiencing mental anguish. She then retained a new lawyer and asked for her client file, but the accused did not respond to that request. In a third case, the accused's client settled with the opposing party while the case was pending before the Court of Appeals. The accused, however, failed to execute settlement documents that the opposing lawyer sent to him for signature. Ultimately, the opposing lawyer had to procure an order from the Court of Appeals requiring the accused to execute the documents. The order provided that, if the accused failed to execute the documents, the judgment would be vacated and the appeal dismissed. The accused failed to comply with that order, and the Court of Appeals instructed the circuit court to dismiss the complaint. Finally, the accused failed to respond to several requests from another client that he modify a trust instrument that he had prepared for the client, for which trust the accused served as trustee. Eventually, that client asked that the accused withdraw as trustee. The accused did so, but only after considerable unnecessary correspondence.

By early 1998, the accused's office telephone was disconnected, and, because the accused had failed to pay his office rent, his landlord instituted a successful forcible entry and detainer action. The accused never notified his clients of a forwarding address or new telephone number. In June 1998, the Professional Liability Fund (PLF) took possession of all the accused's files. Four complaints were filed against the accused with the Bar regarding his conduct, and the accused failed to respond to most of the Bar's resulting inquiries. With respect to two of the four complaints, the accused eventually responded. In one of those responses, the accused misrepresented facts to the Bar. When asked for additional information regarding his responses, he again failed to respond. Similarly, the accused failed to respond to many of the inquiries of the LPRC.

In determining the appropriate sanction for ethical misconduct, this court looks both to the American Bar Association's Standards for Imposing Lawyer Sanctions (1991) (amended 1992) (ABA Standards) and to this court's case law. In re Martin, 328 Or 177, 191, 970 P2d 638 (1998). This court first considers three factors: the ethical duty violated, the lawyer's mental state, and the potential or actual injury caused by the misconduct. ABA Standard 3.0; In re Howser, 329 Or 404, 412, 987 P2d 496 (1999). We then examine any aggravating or mitigating factors. ABA Standard 3.0; In re Devers, 328 Or 230, 241, 974 P2d 191 (1999). Finally, we consider Oregon case law. Devers, 328 Or at 241.

The accused violated several ethical duties. First, he violated his duty of diligence to his clients when he repeatedly neglected legal matters that his clients had entrusted to him. ABA Standard 4.4. That duty requires that a lawyer "act with reasonable diligence and promptness in representing a client." Id. Second, the accused violated his duty to the public to maintain his personal integrity when he misrepresented facts to the Bar in his responses to the Bar's inquiries. ABA Standard 5.1. That duty prohibits a lawyer from engaging in conduct involving dishonesty, fraud, deceit, or misrepresentation. Finally, the accused violated his duty to the profession when he failed to withdraw promptly and properly from representation. ABA Standard 7.0.

As to the accused's mental state, the Bar argues that the accused acted either intentionally or knowingly. The accused argues that he acted negligently. "Intent" is "the conscious objective or purpose to accomplish a particular result." ABA Standards at 7. "Knowledge" is "the conscious awareness of the nature or attendant circumstances of the conduct but without the conscious objective or purpose to accomplish a particular result." Id. "Negligence" is

"the failure of a lawyer to heed a substantial risk that circumstances exist or that a result will follow, which failure is a deviation from the standard of care that a reasonable lawyer would exercise in the situation."

Id.

We conclude that the accused acted knowingly. The record shows that the accused's secretary in his Portland office sent him all his mail and telephone messages daily. She repeatedly reminded him of his obligations. The accused easily could have informed his clients that he was unable to represent them and that they should retain other counsel. Additionally, the accused failed to respond to inquiries from the Bar, notwithstanding numerous requests for information sent to the accused's office and, on discovery of his out-of-state address, to that address. Those facts and the reasonable inferences drawn from them lead us to conclude that the accused was fully aware of his obligations to his clients and to the Bar, and that he knowingly failed to take appropriate action. See Bourcier II, 325 Or at 434 (finding that accused lawyer acted knowingly when lawyer failed to respond to client's telephone messages and to Bar's letters).

We turn to the injury that the accused's misconduct caused. First, by agreeing to dismiss with prejudice a case without consulting his client, the accused caused that client actual harm, because the client was precluded from pursuing his claim against the other party. Second, the accused caused actual injury to the client whose personal injury case the accused failed to pursue actively. Medical treatment for that client's daughter and the resolution of the claim were delayed. Third, the accused caused actual injury to the legal system when he failed to respond to orders of the Court of Appeals. Because the accused failed to execute timely the settlement documents, the court unnecessarily expended significant time and resources. Finally, the accused caused actual injury to the legal profession and the public when he failed to respond to the requests for information from the Bar and the LPRC. See In re Schaffner, 325 Or 421, 427, 939 P2d 39 (1997) (Schaffner II) (so stating under similar circumstances). The accused's failure to respond hampered the disciplinary process by delaying resolution of the complaints against the accused.

In light of the duties violated and the mental state of the accused, we determine that the accused's misconduct implicates several ABA Standards. ABA Standard 4.41(c) provides:

"Disbarment is generally appropriate when:

"* * * * *

"(c) a lawyer engages in a pattern of neglect with respect to client matters and causes serious or potentially serious injury to a client."

ABA Standard 4.42 provides:

"Suspension is generally appropriate when:

"(a) a lawyer knowingly fails to perform services for a client and causes injury or potential injury to a client, or

"(b) a lawyer engages in a pattern of neglect and causes injury or potential injury to a client."

Thus, the ABA Standards suggest in the abstract that disbarment could be appropriate under the facts of this proceeding. But this proceeding is not considered in the abstract; we also consider this court's case law in determining the proper sanction. Before looking to our case law, however, we turn to the fourth factor, viz., aggravating and mitigating circumstances.

The record reveals several aggravating factors, including a pattern of misconduct, multiple offenses over a substantial period of time, and a failure to respond to or cooperate with the Bar's investigations. ABA Standard 9.22(c), (d), and (e). The accused also has substantial experience in the practice of law, having been admitted to the Bar in 1974. ABA Standard 9.22(i). In mitigation, there is no indication in the record of prior discipline. (3) ABA Standard 9.32(a). Additionally, the accused expresses what appears to be genuine remorse over his conduct. ABA Standard 9.32(l).

We next consider this court's case law. In Schaffner II, this court imposed a two-year suspension on a lawyer who neglected a client matter, failed to deliver client property, and failed to respond to the Bar's inquiries. Schaffner II, 325 Or at 428. Specifically, the accused lawyer in Schaffner II promised his client that he would send a demand letter on the client's behalf. The client gave several documents concerning the case to the accused lawyer. The lawyer never sent the demand letter. Over the next ten months, the lawyer failed to communicate with the client or respond to the client's messages. Several aggravating factors were present in Schaffner II, including a pattern of misconduct, multiple offenses, substantial experience in the practice of law, and a prior disciplinary record. Id. at 427.

In In re Sousa, 323 Or 137, 915 P2d 408 (1996), this court disbarred a lawyer who neglected four client matters, failed to cooperate with the Bar on those four matters, engaged in dishonest conduct, collected clearly excessive fees, failed to carry out his employment contract, and failed to render an accounting. Briefly, the lawyer in Sousa failed to file a certificate of lost title for a client, failed to act on two clients' traffic charges, failed to respond to a motion to dismiss filed against another client, and failed to file a brief in the Court of Appeals on his client's behalf. The lawyer also represented to a client that he was licensed to practice law in Colorado when he was on inactive status there. Id. at 141. Additionally, he collected nonrefundable retainer fees from two clients, but failed to take action on their matters and failed to refund any portion of the fees. Id. This court determined that the lawyer in Sousa caused actual injury to three of his clients. In particular, one client was ordered to pay $1,141.50 in costs, because the accused failed to object or respond to a motion for fees and costs. Finally, there were four aggravating factors (pattern of misconduct, multiple offenses, substantial experience in the practice of law, and acting with a dishonest and selfish motive) and no mitigating factors. Id. at 146.

In In re Bourcier, 322 Or 561, 909 P2d 1234 (1996) (Bourcier I), this court imposed a three-year suspension (the maximum possible suspension at the time) on a lawyer who neglected a client matter; engaged in conduct involving dishonesty, deceit, and misrepresentation; engaged in conduct prejudicial to justice; knowingly made a false statement of fact; and failed to cooperate with the Bar and the LPRC. Id. at 567-68. In Bourcier I, the accused lawyer represented the defendant on a criminal appeal. After filing two motions for extension of time in the Court of Appeals, the lawyer moved to dismiss the appeal, stating that he had reviewed the record, had consulted with his client, and determined that no meritorious issue existed. In fact, the lawyer had not consulted with his client regarding the motion to dismiss. Moreover, the lawyer failed to keep his client informed of any of the filings or other developments in the case. Thereafter, the lawyer petitioned for and received attorney fees. In that petition, the lawyer represented that he had spoken with his client over the telephone on several occasions. That representation was false. Id. at 567. A number of aggravating factors were present in Bourcier I, including a prior disciplinary record for similar misconduct, a selfish and dishonest motive, and untruthfulness to the court. There were no mitigating factors.

Finally, in In re Recker, 309 Or 633, 789 P2d 663 (1990), this court imposed a two-year suspension on a lawyer who neglected two client matters, failed to carry out a contract of employment, engaged in conduct involving misrepresentations, and failed to cooperate with disciplinary investigations. Id. at 641. In the first client matter, the client gave the accused lawyer her existing will and paid a $100 fee in exchange for the lawyer's services in drafting a new will. The lawyer failed to draft the will and failed to return the client's messages, which the client left over a four-month period. Id. at 636. In the second client matter, the lawyer represented a defendant in a criminal case. That client was released to a supervised release program. The lawyer failed to communicate with her client and failed to notify her client of a court date, despite many telephone calls from the release program on the client's behalf. On the scheduled court date, the client failed to appear. The lawyer told the judge that the client had failed to maintain contact with the lawyer, when the opposite was true. Id. at 637.

Schaffner II, Sousa, Bourcier I, and Recker involved conduct and circumstances similar to the present proceeding: All involved neglect of client matters and failure to cooperate with the Bar. (4) This proceeding, however, involves conduct more serious -- quantitatively and qualitatively -- than Schaffner II, Bourcier I, and Recker. But, the misconduct here is not as severe as the conduct in Sousa, as the lawyer in Sousa twice had collected clearly excessive fees. The accused in this proceeding neglected four different client matters. In one case, the accused's conduct resulted in his client's case being dismissed with prejudice. The accused failed to respond to the Bar's inquiries in two of those matters, and, as already noted, his responses to the other two inquiries were few, late, incomplete, and contained misrepresentations. In previous cases, this court has expressed its view that the failure to cooperate with a disciplinary investigation, standing alone, is a serious ethical violation. See, e.g., Bourcier II, 325 Or at 434 (so stating); In re Miles, 324 Or 218, 222-23, 923 P2d 1219 (1996) (same). That failure to cooperate, in addition to the number of clients whom the accused neglected, suggests that the sanction in this proceeding should be more severe than the two- to three-year suspensions imposed in Schaffner II, Bourcier I, and Recker. The difference between this proceeding and Sousa, as noted above, suggests that disbarment is not warranted. (5)

The trial panel, in deciding on a five-year suspension, relied heavily on this court's decision in Bourcier II. That case, however, is distinguishable from this proceeding. In Bourcier II, the accused was disbarred for neglecting a client matter and failing to cooperate with the resulting disciplinary investigation. Id. at 431. In its analysis of the sanction in Bourcier II, however, this court deemed significant the prior disciplinary history of the accused. In September 1993, the accused in Bourcier II had received a 60-day suspension for neglecting a client matter. In February 1996, this court had imposed a three-year suspension on the accused for failing to communicate with and advise his client, and failing to respond to the Bar's inquiries. Bourcier I, 322 Or at 571. Immediately after this court decided Bourcier I, the Bar requested the accused's response to another complaint regarding his conduct -- the complaint that eventually became the subject of Bourcier II. The accused failed to respond to those requests for information. Thus, this court found that the accused's contemporaneous continuation of misconduct for which he already had been sanctioned was particularly serious and ordered the accused disbarred. Bourcier II, 325 Or at 436-37.

In the present case, the aggravating factors that exist are serious, but the pattern of misconduct is not as extreme as the conduct in Bourcier II. Additionally, mitigating factors, absent in Bourcier II, are present here. Accordingly, the trial panel's heavy reliance on Bourcier II was misplaced.

The purpose of a lawyer disciplinary proceeding is not to punish the lawyer, but to protect the public and the administration of justice from lawyers who have not discharged, will not discharge, or are unlikely to discharge properly their professional duties to clients, the public, the legal system, and the profession. ABA Standard at 7; In re Wittemyer, 328 Or 448, 459, 980 P2d 148 (1999). After considering all the relevant factors and this court's case law, we conclude that a four-year suspension is the appropriate sanction in this proceeding.

The accused is suspended from the practice of law for a period of four years, commencing 60 days from the date of filing of this decision.

1. The trial panel, in its written opinion, stated that it "must recommend that the Accused be suspended for a period of five years." (Emphasis added.) Under the Bar Rules of Procedure, however, a trial panel has a duty to impose a sanction. BR 2.4(i) (imposing on trial panel duty of publishing written opinion that contains "a disposition"); BR 6.1(a) (providing that "dispositions or sanctions * * * shall include," inter alia, reprimand, suspension, or disbarment). Properly stated then, the trial panel in this case imposed a five-year suspension on the accused. BR 10.1; see also In re Griffith, 304 Or 575, 577 n 1, 748 P2d 86 (1987) (stating that trial panel "makes decisions and not recommendations").

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2. In this court, the accused disputes that he violated DR 1-102(A)(3), which prohibits conduct involving misrepresentation. As noted, however, the accused allowed a default to be entered against him, and we deem true the Bar's allegations. Accordingly, we do not consider the accused's argument that he did not knowingly engage in misrepresentation.

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3. In its brief, the Bar states that the accused was admonished in 1990 for violating DR 7-105(A), which prohibits threatening criminal prosecution to gain advantage in a civil matter. The record does not contain a letter of admonition, and, at oral argument, the parties did not agree on the existence of a letter. Additionally, the opinion of the trial panel states that the accused "has no prior record of discipline." Accordingly, we do not consider the Bar's assertion that the accused has a prior disciplinary record. See BR 10.6 (requiring this court to consider discipline cases de novo upon the record).

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4. In re Schaffner, 323 Or 472, 918 P2d 803 (1996) (Schaffner I) is yet another proceeding involving neglect of a client matter and a failure to cooperate. That case, however, is distinguishable from the proceeding at bar. In Schaffner I, the accused lawyer initially had failed to respond to the Bar's and the LPRC's inquiries. Eventually, however, the lawyer responded to the Bar. The Bar deposed the lawyer, and the Bar and the lawyer began settlement negotiations. As a sanction for those two violations, this court imposed a 120-day suspension. The court specified that a 60-day suspension was appropriate for knowingly neglecting the accused's clients' case and another 60-day suspension was justified for failing to cooperate with the Bar. Id. at 481.

In the present case, the extent of the accused's failure to cooperate is more severe than in Schaffner I. The lawyer in Schaffner I eventually cooperated with the Bar. In this proceeding, the accused's responses were very few, incomplete, and contained misrepresentations. The accused's failure to cooperate with the Bar demonstrates a serious and sustained disregard for the disciplinary rules.

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5. The Bar does not seek disbarment in this case.

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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
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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