S47320 Schuler v. Beaverton School District No. 48J

SUPREME COURT CASES

Laws-info.com » Cases » Oregon » 2002 » S47320 Schuler v. Beaverton School District No. 48J

State: Oregon

Docket No: none

Case Date: 06/27/2002

Filed: June 27, 2002

IN THE SUPREME COURT OF THE STATE OF OREGON

In the Matter of the Compensation of
Melissa R. Schuler, Claimant.

MELISSA R. SCHULER,

Petitioner on Review,

BEAVERTON SCHOOL DISTRICT NO. 48J,

Respondent on Review.

(WCB 97-01397; CA A101276; SC S47320)

On review from the Court of Appeals.*

Argued and submitted January 10, 2001.

Charles Robinowitz, Portland, argued the cause and filed the brief for petitioner on review.

David L. Johnstone, of VavRosky, MacColl, Olson, Busch & Pfeifer, P.C., Portland, argued the cause and filed the brief for respondent on review.

James S. Coon, of Swanson, Thomas & Coon, Portland, filed the brief for amicus curiae Oregon Trial Lawyers Association.

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

RIGGS, J.

The decision of the Court of Appeals and the order of the Workers' Compensation Board are affirmed.

*Judicial review from the Workers' Compensation Board. 164 Or App 320, 992 P2d 467 (1999).

**Kulongoski, J., resigned June 14, 2001, and did not participate in the decision of this case. Balmer, J., did not participate in the consideration or decision of this case.

RIGGS, J.

In this workers' compensation case, claimant sought judicial review of the decision of the Workers' Compensation Board (board) to deny her workers' compensation benefits. A three-judge panel of the Court of Appeals affirmed, with one judge dissenting. Schuler v. Beaverton School District No. 48J, 164 Or App 320, 992 P2d 467 (1999). For the reasons that follow, we affirm the decision of the Court of Appeals and the order of the board.

The following undisputed facts are taken from the Court of Appeals' opinion:

"Claimant is a substitute instructional aide employed by the Beaverton School District. In February 1995, she injured her back and neck in a noncompensable motor vehicle accident. At that time, x-rays revealed degenerative disc disease at C6-7. On June 8, 1995, claimant was injured when she slipped and fell at work. She sought treatment with Dr. Soot in August 1995. At that time, an MRI revealed a disc protrusion at C6-7. In November 1995, employer accepted the claim for low back, cervical, groin and right-wrist strains.

"In March 1996, employer issued a partial denial of claimant's degenerative disc disease at C6-7. Claimant did not appeal this denial and her claim was closed in April 1996. She was awarded temporary partial disability but no permanent partial disability. In June 1996, claimant again sought treatment with Soot because of increased difficulty with pain in her neck and left shoulder and arm. At that time, claimant told Soot that she had not engaged in any unusual activity nor were these symptoms precipitated by any injury. In July 1996, claimant reported to Soot that she had felt a pop in her neck while putting in eye drops and that she was pain free for several days afterward. However, later, after moving bark dust, she again experienced significant pain.

"While at work on September 26, 1996, claimant physically restrained a student who was misbehaving. She experienced neck and shoulder pain at home that evening. On September 30, claimant again saw Soot. She reported that her left shoulder and arm had become progressively worse since the week before. Soot noted that this worsening occurred after some activity at work, but that 'there was no really acute increase following any one particular episode. The pains now have been very difficult to cope with.' Soot referred claimant to a neurosurgeon, Dr. Waller, whom claimant saw on October 1. An MRI, conducted on that day, revealed degenerative disc changes at C6-7 with progression of left-sided disc protrusion/herniation with compromise of the left foramen and possible slight displacement of the left side of the spinal cord. Waller diagnosed persistent C7 radiculopathy with increased symptoms due to left C6-7 disc herniation. He performed left cervical C6-7 diskectomy and foraminotomy surgery on October 3. The surgery was successful, and claimant was released to return to work on October 25, 1996.

"On November 8, 1996, claimant filed an 801 form, claiming benefits for her alleged September 26 injury. Employer denied the claim on the basis that claimant's work was not the major cause of the worsening of her preexisting degenerative disc disease and herniation at C6-7.

"Claimant sought review of the employer's denial. After a hearing the administrative law judge (ALJ) set aside employer's denial holding that, although the preexisting condition was the major portion of the condition being treated, the work injury was the immediate cause of the need for treatment and, therefore, the treatment was compensable. The Board reversed the ALJ, noting that the case relied on by the ALJ, SAIF v. Nehl, 148 Or App 101, 939 P2d 96, modified on recons 149 Or App 309, 942 P2d 859 (1997), rev den 326 Or 389[, 952 P2d 62] (1998), had since been modified by [the Court of Appeals] to clarify that, under ORS 656.005(7)(a)(B), a claimant must establish that the work injury was not only the precipitating cause but the major contributing cause of the claimant's disability or need for treatment. The Board explained, relying on Dietz v. Ramuda, 130 Or App 397, 401, 882 P2d 618 (1994), rev dismissed 321 Or 416[, 898 P2d 768] (1995), that the determination of a major contributing cause includes evaluating the relative contributions of different causes of the claimant's need for treatment of the combined condition and then deciding which is the primary cause."

Schuler, 164 Or App at 322-23.

The board reviewed the medical evidence on the issue of causation, which consisted of the opinions of three doctors. All three doctors agreed that claimant had preexisting degenerative disc disease and a preexisting disc protrusion. Only Dr. Waller, however, suggested that the work-related injury was the major contributing cause of the need for treatment. Waller, who operated on claimant's herniated C6-7 disc, gave the following opinion in a letter:

"[Claimant] has had more than one episode of neck symptomatology. Based on my review of the records however, it would appear that she did have symptoms of a pre-existing condition, when she developed symptoms of neck and left arm [pain] after a vacation in Arizona. An MRI scan on August 1, 1995, identified a disk herniation or osteophyte or combination of the two on the left at C6-7. She improved and surgery was not being considered.

"The event that led to the need for surgery was the control of an unruly student when she developed a profound exacerbation of left-sided neck and shoulder pain that became incapacitating. This prompted a new MRI scan. It was difficult for me to tell if there was actually any anatomical worsening between the two studies, but her symptoms certainly did.

"Therefore, I would state that she had a pre-existing condition that was producing fairly minimal symptomatology, certainly not to the point that surgery was being considered, until the event with the unruly student. Therefore, I believe that event should be considered the major contributing cause to [sic] the need for surgery."

(Emphasis added.)

In a deposition, Waller testified on cross-examination:

"Q. Would it be a fair statement, then, that perhaps the incident with the student did nothing more than be the inciting event or the precipitating event leading to surgery?

"A. It's not an unreasonable way to put it."

On redirect, Waller testified:

"Q. As I understand your letter[,] * * * is it your opinion that the event that she had was the major contributing cause of her need for surgery based on a medically probable standard?

"A. I'll answer that by saying I don't -- I don't want to take anything out of context. In the same letter I commented that I couldn't tell if there was any anatomical worsening between the new and the old MR[I] scans, but it was the precipitation of symptoms provoked by the control of an unruly student that prompted the need for surgery."

(Emphasis added.)

After reviewing the evidence, the board stated:

"[W]e are not persuaded that claimant has established that the work injury was the major contributing cause of the disability or need for treatment of the combined condition. In this regard, although Dr. Waller believed that the injury provoked symptoms and precipitated the need for claimant's surgery, we are not persuaded that Dr. Waller weighed the contribution from the work injury against the contribution from the preexisting disc herniation to determine which was the major contributing cause of claimant's need for treatment of the combined condition. * * * Under such circumstances, we find that claimant has not established compensability of the combined condition."

A divided panel of the Court of Appeals affirmed the board. The majority held that substantial evidence supported the board's determination that Waller had not weighed the contribution of the work-related injury against the contribution of the preexisting condition and that claimant thus had failed to prove that the work-related injury was the major contributing cause of the need for treatment of her combined condition. Schuler, 164 Or App at 327-28. The majority stated that, although it might have found differently if it had been the fact-finder, a reasonable person could have found that Waller had failed to weigh the relative contributions of claimant's preexisting condition and the work injury to determine her need for treatment. Id. Because Waller's opinion was the only medical evidence that supported the relevant causation standard, the majority affirmed the board's order. (1)

Senior Judge Warden, sitting by designation, dissented from the majority's holding that substantial evidence supported the board's finding with respect to Waller. Id. at 328. He would have held that the "only material medical evidence" on the question of what was the major cause of claimant's combined condition was Waller's letter and deposition testimony, and that that evidence could support but one conclusion: Claimant's work injury was the major contributing cause of her need for treatment. Id. at 329-30 (Warden, J., dissenting).

This case involves the application of ORS 656.005(7)(a)(B), which provides:

"If an otherwise compensable injury combines at any time with a preexisting condition to cause or prolong disability or a need for treatment, the combined condition is compensable only if, so long as and to the extent that the otherwise compensable injury is the major contributing cause of the disability of the combined condition or the major contributing cause of the need for treatment of the combined condition."

The parties appear to agree that claimant's injury in restraining the unruly student was an otherwise compensable injury and that that injury combined with claimant's preexisting condition to cause a need for treatment. The only question presented to this court is whether the board permissibly concluded that claimant failed to meet her burden of showing that the injury arising from the incident with the student was "the major contributing cause of the need for treatment of the combined condition." Id.

The burden is on claimant to show that her injury is compensable. ORS 656.266. To show that an "otherwise compensable injury is * * * the major contributing cause of the need for treatment of the combined condition," a claimant must show that the otherwise compensable injury contributed more to the need for treatment than all other causes combined. See Smothers v. Gresham Transfer, Inc., 332 Or 83, 133, 23 P3d 333 (2001) (major contributing cause "contributes more * * * than all other causes combined").

The board was not persuaded that Waller had determined that the work injury was the major contributing cause of claimant's need for treatment. That was a permissible inference from the evidence. Although Waller's letter used the words "major contributing cause" Waller's subsequent deposition testimony did not describe the work-related injury as the major contributing cause, and, instead, opined that the incident with the student "precipitated" claimant's need for treatment. The board reasonably could construe Waller's testimony to confirm only that claimant's work-related injury was last in the chain of causes that led to the need for treatment. Testimony that a cause came last in the chain of causation does not establish necessarily whether that cause also contributed more to the need for treatment than all other causes combined.

It is undisputed that the remaining medical evidence failed to establish that claimant's work-related injury was the major contributing cause of the need for treatment. Consequently, the board did not err in holding that claimant had failed to prove that her claim was compensable.

The decision of the Court of Appeals and the order of the Workers' Compensation Board are affirmed.

1. The majority of the Court of Appeals appears to have treated this primarily as a "substantial evidence" case. It is, more accurately, a case of whether claimant has satisfied her burden of proof.

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