S47312 In re Carter

SUPREME COURT CASES

Laws-info.com » Cases » Oregon » 2002 » S47312 In re Carter

S47312 In re Carter

State: Oregon

Docket No: none

Case Date: 07/18/2002

Filed: July 18, 2002

IN THE SUPREME COURT OF THE STATE OF OREGON

In the Matter of the Application for Admission
to the Bar of the State of Oregon,

JAMES JEFFERSON CARTER,

Applicant.

(SC S47312)

En Banc

Application for admission to the practice of law in Oregon.

Argued and submitted May 13, 2002.

Peter L. Barnhisel, of Barnhisel, Willis, Barlow & Stephens, P.C., Corvallis, argued the cause and filed the briefs for applicant.

Jeffrey D. Sapiro, Oregon State Bar, Lake Oswego, argued the cause and filed the brief for the Oregon State Board of Bar Examiners.

PER CURIAM

Applicant's application for admission to the Oregon State Bar is denied.

PER CURIAM

The issue in this contested lawyer admission proceeding is whether applicant James Jefferson Carter should be admitted to the Oregon State Bar (Bar). The Board of Bar Examiners (Board) recommends that this court deny applicant's application for admission to practice law. Applicant contends that he has proved by clear and convincing evidence that he possesses the fitness and good moral character necessary for admission to the practice of law in Oregon and requests that this court admit him despite the Board recommendation. After a de novo review of the record, we conclude that applicant should not be admitted to the practice of law at this time.

Applicant began attending the University of Oregon law school in the fall of 1995. In October 1995, he went to Lake Oswego to visit his parents for the weekend. While there, he learned that two of his family members had been suffering serious health problems, and he became distraught over the news. When applicant was returning home to Eugene late in the evening at the end of the weekend, he became so upset that he pulled over to the side of the road to collect himself. At that moment, he happened to be near the Wilsonville offices of a computer firm, In Focus, where he previously had been employed for about six months. He drove into the In Focus parking lot.

Applicant still had his employee access card in his car, and he decided to enter the building to "take something." He emptied out two gym bags that he had in the car and brought them into the building. After wandering about the office for a few minutes, he loaded up the gym bags with about $5,000 worth of computer equipment, put the loaded bags back in the car, drove to Eugene, and took the stolen items into his apartment. Over the next several days, the accused deleted files from the stolen computer's hard drive in an effort to hide the fact that he had taken it from In Focus.

Applicant's entry into the In Focus building and his removal of the computer equipment were captured on a security video. Applicant's former employer identified him from the video, and a deputy from the Clackamas County Sheriff's Office contacted him 10 days after the incident. Applicant denied that he had been in the In Focus building since he ceased his employment there and denied that he had stolen anything from In Focus. He also told the deputy that he had returned the key card and that he had been in Eugene the entire day on which the theft occurred. Applicant continued to deny involvement in the theft even after the sheriff told him that his acts had been recorded on the surveillance video.

The next day, applicant contacted a lawyer, who arranged for the stolen equipment to be returned. In January 1996, applicant was indicted on one count of burglary, in violation of ORS 164.215, and on one count of theft, in violation of ORS 164.055. Applicant never was tried or convicted of the In Focus crimes. With the help of his lawyer, applicant and In Focus entered into a civil compromise in July 1997, and a circuit court later dismissed the criminal charges.

Soon after he was indicted, applicant began counseling, ostensibly to explore why he had committed the theft. Applicant discontinued his counseling sessions that fall, at the beginning of his third year of law school.

In March 1998, applicant applied for admission to the practice of law. In that application, he fully disclosed the circumstances of the crime. He also informed the Bar that twice earlier he had been caught shoplifting, once as a 13-year-old and once in college. The Board began an investigation. As part of that investigation, the Board requested applicant to undergo a general character evaluation by a psychologist.

The psychologist reported that applicant had been a very intelligent and precocious youngster and that applicant's parents believed early on that he was not being challenged adequately in school. For that reason, his parents enrolled him in high school at the age of 12. Applicant's immaturity relative to that of his classmates led him to suffer various social difficulties. According to the psychologist, that, in turn, led applicant to develop various psychological coping mechanisms such as, eventually, narcissism, which enabled him to view himself as superior despite feelings of inadequacy, and a tendency to repress unpleasant or difficult matters. The psychologist concluded that applicant's personality combines several traits indicative of narcissistic personality disorder and of passive-aggressive personality disorder. Although applicant does not have sufficient traits of either disorder to meet the diagnostic criteria for a personality disorder, and although those personality traits are well-controlled nearly all the time, his defenses weaken under stress and those personality traits are likely to create problems for him from time to time. The psychologist also was troubled by applicant's lack of insight; according to the psychologist, applicant continues to have difficulty understanding and articulating his motivation for the In Focus theft.

In November 1999, the Board notified applicant that it would recommend that he be admitted to the Bar conditionally, subject to certain probationary terms. Those terms included, among other things, that applicant be placed under the supervision of a mentor and that he enter into long-term therapy to address the personality traits that led to the In Focus incident. Applicant agreed and signed a Conditional Admission Agreement in January 2000. The Board submitted that agreement to this court, together with its recommendation that applicant be admitted conditionally to the practice of law. This court rejected that recommendation and remanded the matter for a character review proceeding.

A three-member panel of the Board held a character and fitness evidentiary hearing in November 2000. Applicant represented himself at that hearing. Notwithstanding having been informed that he bore the burden of proof at the hearing, (1) applicant presented no personal or professional references or other evidence to establish his current good character. Instead, at the beginning of the hearing, he told the Board panel that he did not know how to go about proving his fitness and good moral character, and asked the panel members to suggest what type of evidence he should provide. The panel declined to make any suggestions; rather, it referred applicant to the rules for admission.

In April 2001, the hearing panel sent applicant a copy of its proposed decision recommending against admitting him to the Bar. Thereafter, applicant retained counsel. In May 2001, applicant excepted to the proposed decision of the hearing panel. In June 2001, the Board notified applicant that it rejected those exceptions; the panel issued its decision recommending that this court deny applicant's application to practice law. In July 2001, applicant filed a motion in this court to present additional evidence, in which he requested leave to offer three third-party character references. The Bar objected to that motion and, in October 2001, this court denied it.

The Board based its decision not to recommend applicant for admission on several factors. First, the Board noted that applicant's conduct was of a type that could have (but would not necessarily have) led to disbarment, had it occurred while applicant was a practicing lawyer. Using the ABA Standards as guidelines, the Board took note of the presence of the following mitigating factors: (1) personal or emotional problems; (2) full and free disclosure to the Board and cooperative attitude in the proceedings; (3) good character or reputation; (4) interim rehabilitation; and (5) remorse. The Board viewed as an aggravating factor applicant's conduct immediately after the theft, including his repeated denials of involvement and his efforts to conceal the crime. The Board found that that post-crime conduct cast substantial doubt on applicant's honesty, fairness, and respect for the rights of others and for the law.

Although the Board considered the theft to be a single and anomalous act of misconduct that was out of character with applicant's general behavior, it found that his acts of restitution and remorse did not commence until he was caught. The Board also was concerned about the absence of any current personal or professional character evidence in the record supporting applicant's request for admission, particularly in light of the fact that the theft occurred five years before the hearing. Finally, the Board observed that, although applicant attributed his conduct to the stress created by his family situation, that stress was not so abnormal or unique as to eliminate the risk of a recurrence in the future. Moreover, the Board was concerned that, notwithstanding the psychologist's recommendation that applicant enter into long-term therapy to address the underlying psychological reasons for his behavior, applicant had not done so. In those circumstances, the Board concluded that applicant had not proved by clear and convincing evidence that he would be able to withstand the stress of the legal profession and that, consequently, he had not met his burden of proving that he possesses the requisite good moral character and fitness to practice law.

An applicant for admission to the Bar must show that he or she presently is a person of good moral character. ORS 9.220(2)(a). An applicant must prove that he has the requisite character by clear and convincing evidence. In re Rowell, 305 Or 584, 588, 754 P2d 905 (1988). That standard requires an applicant to show that it is "highly probable" that he has good moral character. In re Monaco, 317 Or 366, 370 n 4, 856 P2d 311 (1993). Any significant doubts about an applicant's character should be resolved in favor of protecting the public by denying admission to the applicant. In re Jaffee, 319 Or 172, 177, 874 P2d 1299 (1994).

"[A]cts or conduct" that "reflect moral turpitude" or that "would cause a reasonable person to have substantial doubts about the individual's honesty, fairness and respect for the rights of others and for the laws of the state and the nation" may demonstrate a lack of good moral character. ORS 9.220(2)(b). Theft is an act of misconduct involving moral turpitude. In re Kimmell, 332 Or 480, 491, 31 P3d 414 (2001); see also In re Sonderen, 303 Or 129, 133, 734 P2d 348 (1987) ("in order to involve moral turpitude, [the conduct] must require intent and must include as an element fraud, deceit, dishonesty, harm to a specific victim or illegal activity undertaken for personal gain"). Accordingly, applicant's misconduct related to and surrounding the In Focus theft demonstrates that, at that time, applicant did not possess good moral character. (2)

Given that circumstance, the crucial inquiry is whether applicant's character has reformed sufficiently in the interim to permit his admission to the Bar. Jaffee, 319 Or at 177; Rowell, 305 Or at 588. In his brief to this court, applicant contends that "he has met his burden of proof of present good moral character in essentially the only way he can, and that is by his actions since the event." By that, he means remaining crime-free and pursuing his academic goals of, among other things, completing law school, passing the Oregon Bar Examination, and pursuing an electrical engineering degree.

This court has observed that reformation is difficult, but not impossible, to prove to the court's satisfaction. Jaffee, 319 Or at 177. The court has considered, as evidence of reformation, character testimony from those who know and have had an opportunity to observe the applicant, participation in activities that benefit society, and an applicant's forthright acknowledgment of the wrongfulness of his or her past actions. Jaffee, 319 Or at 178; Rowell, 305 Or at 590-91. In the present proceeding, however, applicant has not offered any evidence from which this court could conclude that applicant's character has reformed sufficiently to permit his admission to the Bar.

Relatedly, applicant contends that the Board erred in failing to give him the opportunity to present additional evidence. He asserts that the character hearing should not have been an adversarial proceeding and that, considering the importance of the proceeding, applicant's obvious inexperience, and the fact that applicant appeared pro se, the Board should have "advised [him] of the importance of such current [character] references."

Applicant misapprehends the Board's role. The Board's role is not to protect applicant. Instead, it is to protect the public through proceedings like those that it conducted in applicant's case. Applicant was fully informed that he bore the burden of proof to establish his good moral character and fitness to practice. It was incumbent on him to prepare for the hearing so that he would know the type of evidence that the Board and this court have in the past considered in determining whether an applicant has established meaningful character reformation. Applicant's statements that he has reformed, without more, are insufficient.

Applicant's application for admission to the Oregon State Bar is denied.

1. The Board twice provided applicant with a copy of the Oregon State Bar's Rules for Admission and specifically informed applicant that he bore the burden of proof at the hearing. Rule for Admission 9.45(6) provides:

"Burden of Proof. To be entitled to admission to the practice of law in Oregon, an applicant must establish by clear and convincing evidence that she or he has the requisite character and fitness to practice law."

Return to previous location.

2. Applicant was not convicted of theft, but such a conviction is not necessary to establish a lack of good moral character. As noted, ORS 9.220(b) refers to "acts or conduct." Thus, it is sufficient that the record show that an applicant committed acts that constitute the offense. See, e.g.,

Kimmell, 332 Or at 485 (holding, in disciplinary context, that, because disciplinary action for violation of Disciplinary Rule 1-102(A)(2) and (3) is based on accused's conduct rather than on accused's conviction, proof of conviction was not required to find a violation).

Return to previous location.

Preview:1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 30 31 32 33 34 35 36

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

1

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22

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

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17

attention. Judge Collins allowed the press to attend the detention hearing, but prohibited the press from recording the proceedings. The parties dispute whether the judge prohibited only video recordings or also prohibited audio recordings.1 A number of newspaper and television stories reported the events and testimony at the hearing. After the hearing, the accused obtained a copy of the official audio recording of the hearing and had a partial transcript prepared that contained the victims' testimony. In March 2007, a reporter contacted the accused about the February 27 hearing. The reporter, who was not present at the hearing, expressed disbelief that the female victims had felt pressured by the vice principal and the police officer to make the youths' actions seem sexual. The accused offered to give the reporter a copy of the partial transcript when it was available. The accused believed that it would have been improper to give the reporter the official audio recording of the hearing but thought that the transcript could be released. The accused contacted Deborah Markham, the deputy district attorney handling the case, to see if she objected to releasing the transcript. Markham told the accused that she believed that the court would have to consent. The accused then released the transcript to the reporter without obtaining permission from Judge Collins. Deputy District Attorney Deborah Markham testified that Judge Collins prohibited video recording. Judge Collins testified that he might have prohibited the press from recording the detention hearing, but that he did not remember whether he did so or not. He did remember allowing video recording at a later hearing in the proceeding. The accused testified that Judge Collins prohibited video recording but that he could not remember if the judge prohibited audio recording.
1

3

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17

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

4

1 2 3 4 5 6 7 8 9

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[.]"
3

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 * * * ."

5

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22

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

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22

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

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22

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

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18

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).

4

9

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22

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

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22

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

1 2 3 4 5 6

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.

12

Download S058778 In re Lawrence.pdf