S46642 Gorham v. Thompson

SUPREME COURT CASES

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State: Oregon

Docket No: CC96C-12929

Case Date: 10/18/2001

FILED: October 18, 2001

IN THE SUPREME COURT OF THE STATE OF OREGON

A. KENT GORHAM,

Petitioner on Review,

S. FRANK THOMPSON,
Superintendent,
Oregon State Penitentiary,

Respondent on Review.

(CC 96C-12929; CA A100889; SC S46642)

On review from the Court of Appeals.*

Argued and submitted November 3, 2000.

Marc D. Blackman, Ransom Blackman, Portland, argued the cause and filed the briefs for petitioner on review. With him on the briefs was Kendra M. Matthews.

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

Before Carson, Chief Justice, and Gillette, Durham, Leeson, and Riggs, Justices.**

LEESON, J.

The decision of the Court of Appeals and the judgment of the circuit court are affirmed.

*Appeal from Marion County Circuit Court, Rodney M. Miller, Judge. 159 Or App 570, 978 P2d 443 (1999).

**Van Hoomissen, J., retired December 31, 2000, and did not participate in the decision of this case. Kulongoski, J., resigned June 14, 2001, and did not participate in the decision of this case. De Muniz and Balmer, JJ., did not participate in the consideration or decision of this case.

LEESON, J.

In this post-conviction proceeding, petitioner contends that his convictions for sex abuse and rape must be set aside because he received inadequate assistance of trial counsel in violation of Article I, section 11, of the Oregon Constitution, and the Sixth and Fourteenth Amendments to the United States Constitution. (1) The post-conviction court held that, by not investigating experts regarding impeachment and credibility issues for petitioner's third trial before deciding not to use them, petitioner's trial counsel had not exercised reasonable professional skill and judgment. Nonetheless, that court denied relief on the ground that petitioner had not shown prejudice. The Court of Appeals affirmed. Gorham v. Thompson, 159 Or App 570, 978 P2d 443 (1999). We allowed petitioner's petition for review and now affirm the decision of the Court of Appeals and the judgment of the post-conviction court on a different ground.

The relevant events giving rise to petitioner's post-conviction challenge in this proceeding are as follows. In 1991, a grand jury indicted petitioner on three counts of first-degree rape and three counts of first-degree sexual abuse against his daughter L, (2) in 1989 and 1991, when she was five and seven years old. Petitioner was tried three times. The first trial, in July 1992, ended in a mistrial. Thereafter, petitioner retained Morrow, the lawyer whose conduct is at issue in this proceeding, to represent him at the second trial.

Petitioner's second trial began in October 1992. At that trial, Morrow cross-examined prosecution witnesses and presented defense witnesses to undermine the reliability of L's reports of petitioner's sexual acts. Morrow also offered the testimony of two expert witnesses, a physician, Dr. Moore, and a child psychiatrist, Dr. Boverman. The purpose of Moore's testimony was to challenge the physical examination methodology that a pediatrician, Dr. Young, had used when she had examined L's genitalia in 1990 and 1991, and had reported "nonspecific" findings of sexual abuse, based in part on "bumps" and "dips" in L's hymen. The purpose of Boverman's testimony was to establish that children of L's age are susceptible to suggestion, that inappropriate questioning can lead children to make false disclosures of sexual abuse, that the inconsistencies in L's accounts of what had occurred were the result of improper questioning and "contamination" through play therapy with a psychologist, Gregory-Mull, and that Gregory-Mull inappropriately had used anatomically correct dolls with L before L had made a clear disclosure of sexual abuse.

During its deliberations in the second trial, the jury informed the trial court that it had seen an exhibit that it did not believe had been introduced as evidence. The court had the exhibit removed, instructed the jury to disregard it, and told the jury to continue its deliberations. The jury convicted petitioner on all counts.

After the verdict, Morrow talked to one of the jurors. He learned that, before seeing the exhibit, five of the twelve jurors had voted to acquit petitioner. However, after seeing the exhibit, at least three of the five jurors who had voted to acquit changed their votes. Morrow also learned that, in the jury's view, the prosecution's cross-examination had discredited both Moore's and Boverman's testimony. Morrow then wrote a letter to petitioner explaining that the information that he had obtained from the juror meant that the trial court probably would grant a motion for mistrial, that petitioner had a chance of prevailing in a third trial, and that "[t]here are things we can do better next time." The trial court subsequently granted petitioner's motion for a mistrial.

Petitioner's third trial began in May 1993, approximately seven months after the second trial had begun. Before trial, Morrow learned that the prosecution's case at the third trial would be a replay of the second trial and that the prosecution would call the same witnesses. According to Morrow's affidavit in this proceeding, he decided that it would be "a better tactic at the third trial not to call expert witnesses, subjecting them to cross-examination by the prosecutor." The accused testified on his own behalf at the third trial, as he had previously. He denied having had any sexual contact with L. After hearing all the evidence, the jury returned guilty verdicts on all counts, and the Court of Appeals affirmed the convictions. State v. Gorham, 131 Or App 267, 884 P2d 1230, rev den 320 Or 493 (1994).

As noted, petitioner brought this post-conviction proceeding, alleging that he had received inadequate assistance of counsel at his third trial. See ORS 138.530(1)(a) (post-conviction relief available for substantial denial of rights under state and federal constitutions). (3) To prevail on his claim of inadequate assistance of counsel, petitioner had to make two showings. First, petitioner had to demonstrate by a preponderance of the evidence that Morrow had failed to exercise reasonable professional skill and judgment. See Trujillo v. Maass, 312 Or 431, 435, 822 P2d 703 (1991) (identifying two-pronged test for post-conviction relief). Second, even if Morrow had failed to exercise reasonable professional skill and judgment, petitioner had to demonstrate that that failure would have had a tendency to affect the result. Id.

As relevant to the issue on review in this proceeding, petitioner alleged that Morrow had failed to exercise reasonable professional skill and judgment in failing to present expert opinion evidence on credibility and impeachment matters. Petitioner submitted an affidavit from Dr. Bruck, a developmental psychologist, stating that, in Bruck's opinion, L's trial testimony

"* * * is characterized by so many poor investigative techniques as to render the reports unreliable. Their reports appear to be products of coercive and pressurized interview techniques conducted over a period of 18 months. As well there are a number of milder suggestive influences that could interact with these more coercive techniques to produce her testimony."

The petition also averred that a "behavior pediatrician," Dr. Sabin, would testify that the manner in which Young had conducted her examination and obtained L's medical history did not meet minimum professional standards, and that Young's interpretation of her findings conflicted with medically accepted standards.

At the post-conviction hearing, petitioner submitted Bruck's affidavit as well as the testimony of a defense lawyer, Matasar. Matasar expressed the opinion that, to provide adequate assistance of counsel, Morrow had to present expert testimony to the jury at petitioner's third trial, that it was unreasonable not to present such testimony, that there was no tactical reason not to present expert testimony if it were available, and that he, Matasar, had found no evidence that Morrow had investigated the use of expert witnesses at petitioner's third trial. Matasar expressed no opinion about Morrow's investigation and use of experts at petitioner's second trial.

Following the hearing, the post-conviction court found that Morrow had presented expert testimony from Moore and Boverman at petitioner's second trial; that Boverman had testified about circumstances that could create a risk that children would make false accusations of sexual abuse; that the prosecution had discredited both Moore and Boverman on cross- examination; that Morrow had chosen not to use expert witnesses in the third trial; and that Morrow instead had "extensively cross-examined the complaining witness and the prosecution's witnesses, including experts." Those findings are not contested. The post-conviction court then held:

"1. Trial counsel, in failing to investigate experts on the impeachment and credibility issues, failed to exercise reasonable professional skill and judgment in defending petitioner.

"2. Petitioner did not establish that the trial counsel's decision to rely on extensive cross-examination of the complaining witness and the prosecution witnesses had a tendency to affect the result of the prosecution.

"3. Trial counsel's omissions cannot be regarded as of a constitutional magnitude.

"4. In the underlying criminal proceedings resulting in petitioner's conviction, petitioner was not denied assistance of trial counsel as guaranteed by either the United States Constitution or the Constitution of the State of Oregon."

(Emphasis added.)

In a letter to counsel that clarified its findings and conclusions about Morrow's failure to investigate experts before deciding not to use them at petitioner's third trial, the post-conviction court explained:

"The credibility and the impeachment of the complaining witness issue was a major focus of defense counsel. * * * A decision not to pursue expert witnesses for possible impeachment of the child and to preclude cross examination by the District Attorney should logically be made after investigating what experts had to say on the subject. It does not seem that 'a tactic' could be determined to be the 'better' until the experts' input was known. The same rationale carries to defense counsel's decision to focus solely on cross examination of the child witness.

"Trial counsel, in failing to investigate experts on the impeachment and credibility issues, failed to exercise reasonable professional skills and judgment in defending petitioner.

"* * * Petitioner must make a showing that the omission of trial counsel prejudiced the defense."

(Emphasis added.)

On appeal, petitioner assigned error to the post- conviction court's holding that petitioner had failed to establish prejudice. The state cross-assigned error to the post-conviction court's holding that Morrow had failed to exercise reasonable skill and judgment in deciding not to use experts at the third trial without first investigating what they would say. The state argued that, having been through the second trial -- at which he had both investigated and presented expert testimony -- Morrow already knew what experts would say. Under those circumstances, the state contended, Morrow's decision not to use experts at the third trial was an informed tactical choice that did not require additional investigation. Petitioner asserted that the post-conviction court had found that Morrow had provided inadequate assistance of counsel by not presenting expert testimony at the third trial.

The Court of Appeals assumed, without discussion, that "[Morrow's] decision not to call experts in the third trial after his experts had been discredited in the second trial was not a reasonable tactical decision." Gorham, 159 Or App at 575. Nonetheless, that court affirmed the post-conviction court on the ground that petitioner had failed to establish that Morrow's decision to rely on extensive cross-examination of L and the other prosecution witnesses at the third trial had a tendency to affect the result of the prosecution. Id.

On review, petitioner contends that the Court of Appeals misapplied the second, or "prejudice," prong of the post- conviction relief test. The state defends that court's analysis of the prejudice prong. However, the state contends that the Court of Appeals erred in not addressing the first prong of the post-conviction analysis. It argues that Morrow was not required to treat preparation for the third trial as though he were writing on a "clean slate." Rather, Morrow was entitled to rely on his investigation and use of experts at petitioner's second trial to inform his decision not to call such experts at petitioner's third trial. If the state's argument on that point is well taken, then it is dispositive. Accordingly, we turn to the state's argument.

It is well established that a reviewing court will not second-guess a lawyer's tactical decisions in the name of the constitution unless those decisions reflect an absence or suspension of professional skill and judgment. Krummacher, 290 Or at 875-76. However, tactical decisions must be grounded on a reasonable investigation. Id. at 875; Stevens v. State of Oregon, 322 Or 101, 108, 902 P2d 1137 (1995). The question in each case is whether trial counsel's investigation was legally and factually appropriate to the case. Stevens, 322 Or at 108.

In this case, by the time that Morrow began preparing for petitioner's third trial, he had both investigated and used expert witnesses only a few months earlier at petitioner's second trial. Nothing changed during the time between the two trials that would have compelled Morrow to investigate anew expert testimony; the facts, law, and theories that the experts had relied on remained the same. Morrow also had learned after the second trial that the state intended to present the same case at the third trial that it had presented at the second trial and that it would call the same witnesses in its effort to prove petitioner's guilt. Based on his investigation and use of experts on credibility and impeachment issues at the second trial, Morrow believed that it would be a better strategy at the third trial not to subject defense experts to the prosecution's cross-examination. Accordingly, he decided not to call experts on those issues at petitioner's third trial. (4) On those facts, the post-conviction court erred in holding that Morrow failed to exercise reasonable professional skill and judgment by not investigating experts regarding impeachment and credibility issues for petitioner's third trial before deciding whether to present such experts.

The facts of this case differ from the situation in which a lawyer makes a tactical decision about how to conduct a trial without ever having undertaken any investigation on which to ground that decision. In Stevens, for example, in preparing for the petitioner's trial on charges of sexual abuse, trial counsel did not interview potential witnesses whose testimony might have had a bearing on the complaining witness's credibility, and trial counsel did not investigate at all whether any medical evidence supported the petitioner's claim that he was sexually impotent. 322 Or at 105-06. This court held that trial counsel's investigation was not legally and factually appropriate to the case, id. at 108-09, and that trial counsel had not exercised reasonable professional skill and judgment, id. at 110. In this case, by contrast, Morrow recently had both investigated and used experts on credibility and impeachment issues at petitioner's second trial. The second trial turned out to be a "dry run" for the third trial a relatively short time later. Morrow's decision not to present expert testimony at the third trial was grounded on his investigation and use of experts at petitioner's second trial.

As we have explained, the post-conviction court and the Court of Appeals denied relief in this proceeding on the ground that petitioner had not satisfied the second -- or prejudice -- prong of the test for post-conviction relief. Because we hold that petitioner has not demonstrated that Morrow failed to exercise reasonable professional skill and judgment under the first prong of the post-conviction test, we do not address petitioner's arguments under the prejudice prong of the post-conviction test. (5)

The decision of the Court of Appeals and the judgment of the circuit court are affirmed.

1. Article I, section 11, provides, in part:

"In all criminal prosecutions, the accused shall have the right * * * to be heard by himself and counsel[.]"

The Sixth Amendment to the United States Constitution provides, in part:

"In all criminal prosecutions, the accused shall enjoy the right * * * to have the Assistance of Counsel for his defence."

The Sixth Amendment is made applicable to the states through the Due Process Clause of the Fourteenth Amendment to the United States Constitution. Gideon v. Wainwright, 372 US 335, 342-45, 83 S Ct 792, 9 L Ed 2d 799 (1963).

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2. We refer to the minor child by her initial.

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3. In this case, the inquiry under the Sixth and Fourteenth Amendments to the United States Constitution is the same as the inquiry under Article I, section 11, of the Oregon Constitution. See Krummacher v. Gierloff, 290 Or 867, 871, 627 P2d 458 (1981) (determining that "[i]t is sufficient for the purposes of this case to examine the right to counsel as if the rights assured under each constitution are identical").

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4. Petitioner does not challenge Morrow's preparation for and conduct at the third trial in any other respect.

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5. Petitioner also contends that the evidence that the state presented against him at his third trial was so unreliable that due-process principles precluded his conviction. Petitioner did not challenge the reliability of the state's evidence at trial or on direct appeal. See Palmer v. State of Oregon, 318 Or 352, 867 P2d 1368 (1994) (failure to raise issue at trial that reasonably could have been raised at trial generally precludes post-conviction relief on that ground). We decline to address petitioner's due-process argument on review.

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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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