S47326 Earls v. Myers

SUPREME COURT CASES

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State: Oregon

Docket No: none

Case Date: 04/06/2000

FILED: APRIL 6, 2000

IN THE SUPREME COURT OF THE STATE OF OREGON

KEVIN C. EARLS,

Petitioner,

HARDY MYERS,
Oregon Attorney General,

Respondent.

(SC S47326)

En Banc

On petition to review ballot title.

Argued and submitted March 22, 2000.

Bruce A. Bishop, Harrang Long Gary Rudnick, P.C., Salem, argued the cause and filed the petition for petitioner. With him on the petition was James E. Mountain, Jr., Salem.

Rolf Moan, Assistant Attorney General, Salem, argued the cause and filed the answering memorandum for respondent. With him on the memorandum were Hardy Myers, Attorney General, and Michael D. Reynolds, Solicitor General.

DURHAM, J.

Ballot title certified as modified. This decision shall become effective in accordance with ORAP 11.30(10).

Van Hoomissen, J., dissented and filed an opinion in which Riggs, J., joined.

DURHAM, J.

Petitioner seeks review of a ballot title for a proposed initiative measure. Petitioner is an elector who timely submitted comments concerning the Attorney General's draft ballot title. Therefore, he is entitled to petition for review of the Attorney General's certified ballot title. ORS 250.085(2).

In addition to defining the terms used and limiting its scope, the proposed measure would enact the following provisions as a statute:

"SECTION 2. All managed health care plans offered by a managed care entity, all health insurance policies and all casualty insurance policies provided to residents of Oregon shall:

"(1) Provide for patient freedom of choice of health care physician and primary care physician among all physicians providing medical services within the physician's professional scope of practice; and

"(2) Provide the same policy benefits, rate of reimbursement and extent of covered expenses for all health care physicians and primary care physicians provided the physician is providing care within that physician's professional scope of practice.

"SECTION 3. (1) All managed care plans offered by a managed care entity, all health insurance policies and all casualty insurance policies subject to sections 1 to 5 of this 2000 Act may require the enrollee or insured person to select a health care physician as a primary care physician. Selection of a primary care physician limits the applicability of section 2(1) of this 2000 Act to the selected primary care physician and referrals by the primary care physician to other health care physicians. Enrollees and insured persons are permitted to change primary care physicians at will, except that a managed care plan, health insurance policy or casualty insurance policy may restrict the enrollee or insured person to changing primary care physician no more than twice in a 12-month period.

"(2) An enrollee or insured person has the right to select a health care physician or primary care physician in accordance with the following categories:

"(a) For medical services, a Doctor of Medicine or a Doctor of Osteopathy licensed in accordance with ORS chapter 677, or a Doctor of Chiropractic licensed in accordance with ORS chapter 684;

"(b) For dental care service, a Doctor of Medical Dentistry or a Doctor of Dental Science as licensed in accordance with ORS chapter 679; and

"(c) For vision care services, a Doctor of Medicine licensed in accordance with ORS chapter 677 or a Doctor of Optometry licensed in accordance with ORS chapter 683."

The Attorney General certified the following ballot title for the measure:

"REQUIRES: FREEDOM TO CHOOSE HEALTH CARE PROVIDER; EQUAL REIMBURSEMENT, COVERAGE

"RESULT OF 'YES' VOTE: 'Yes' vote requires patient's freedom to choose health care provider; requires equal reimbursement rates, coverage.

"RESULT OF 'NO' VOTE: 'No' vote rejects requiring freedom to choose health care provider; rejects equal reimbursement rates, coverage.

"SUMMARY: Modifies health care provider contracting options by requiring health and casualty insurance policies, managed health care plans to provide same reimbursement rates, coverage, regardless of care provider. For medical services, allows patient's choice of physician or chiropractor as primary care, health care provider. For vision services, allows choice of ophthalmologist, optometrist. Patients may change primary care provider, but can be limited to two changes over twelve months. Excludes Oregon Medical Assistance Program, Oregon Health Plan, student health insurance programs, public employee benefits, inmates, workers' compensation."

Petitioner objects to each segment of the Attorney General's ballot title. We review those objections in order, bearing in mind that we must decide only whether the Attorney General's ballot title complies substantially with statutory requirements. ORS 250.085(5). (1) See also Mabon v. Kulongoski, 325 Or 121, 126, 934 P2d 403 (1997) ("The review statutes do not authorize this court to draft a 'better' or 'improved' title; substantial compliance with the requirements stated in ORS 250.035 is sufficient.").

Petitioner first challenges the Attorney General's ballot title caption. The ballot title caption must reasonably identify, within 10 words, the subject matter of the measure. ORS 250.035(2)(a) (1997). (2) To determine whether a caption accurately states the subject matter of a proposed initiative measure, "we examine the text of the measure itself * * *." Doell v. Myers, 328 Or 635, 640, 984 P2d 266 (1999).

Petitioner first argues that the Attorney General's caption fails to identify the subject matter of the measure because it does not mention how the measure would change the ways in which physicians and other specified health care providers may contract and be paid for their services. The Attorney General responds that the caption reasonably identifies the subject matter of the measure because it states that the measure "requires * * * equal reimbursement, coverage," thereby informing voters that the subject of the measure encompasses the options for insurers and managed health care plans when contracting with health care providers.

We agree with the Attorney General. The measure requires that specified health care plans and insurance policies "[p]rovide the same policy benefits, rate of reimbursement and extent of covered expenses" to specified health care providers. The phrase "requires * * * equal reimbursement, coverage" reasonably identifies that subject matter within the constraints of the word limitation imposed on the caption and, thus, substantially complies with statutory requirements.

Petitioner further argues that the caption uses terminology that is not objective. Particularly, petitioner contends that the phrase "freedom to choose" is inappropriate for a ballot title because it is not neutral and might mislead voters into supporting the proposal without understanding its true effects. The Attorney General responds that the phrase "freedom to choose" accurately identifies the subject matter of the measure by indicating that the measure would prevent insurers and managed health care plans from restricting patients' freedom to choose their own health care providers. The Attorney General further observes that the phrase mirrors wording used in the measure itself.

We agree with petitioner that, in this context, the phrase "freedom to choose" is likely to prejudice voters regarding the measure. See Marr v. Thornton, 237 Or 503, 504, 392 P2d 458 (1964) (deleting phrase "right-to-work" from ballot title caption as slogan that amounted to argument for measure and that likely would create prejudice). It is true that the phrase "freedom to choose" appears in the measure itself. However the Attorney General and this court are not constrained to certify a ballot title that is slanted toward passage or defeat of the measure. See Dirks v. Myers, 329 Or 608, 616, 993 P2d 808 (2000) (court has resisted attempts to incorporate into ballot title terms or phrases that "tend more to promote or defeat passage of the measure than to describe its substance accurately."). Proponents of a measure are not entitled to engineer a favorable ballot title by incorporating politically inflated terms or phrases in the text of the measure in order to advance its passage. Cf. Bernard v. Keisling, 317 Or 591, 596-97, 858 P2d 1309 (1993) (court will not hesitate to look beyond words of measure if those words obfuscate subject, chief purpose, summary, or major effect of measure).

We have considered petitioner's other objections to the caption and reject them without further discussion.

We conclude that petitioner is correct that the caption does not comply substantially with statutory requirements and requires modification to remove the phrase "freedom to choose." To remedy that problem, we rephrase the caption to state that the measure would afford to patients the opportunity to select their health care provider. Additionally, because the phrase "freedom to choose" also appears in the "yes" and "no" vote result statements, and conveys the same meaning in those contexts, we make similar conforming changes to those parts of the ballot title to conform to the changes that we make to the caption. See Garst v. Myers, 329 Or 529, 535, 992 P2d 451 (1999) (following that practice).

As a consequence of the foregoing discussion, we modify the caption as follows:

PATIENTS MAY CHOOSE HEALTH CARE PROVIDER; REQUIRES EQUAL REIMBURSEMENT, COVERAGE

In challenging the Attorney General's "yes" and "no" result statements, petitioner repeats his criticisms of the Attorney General's caption. As discussed above, we agree in part with those criticisms and adopt corresponding changes to bring the "yes" and "no" result statements into substantial compliance with ORS 250.035(2)(b) and (c) (1997). In addition, we agree with petitioner that the Attorney General's "no" vote result statement is misleading. That is so because, by using the term "rejects," the "no" vote result statement incorrectly implies that a rejection of the measure might cause voters to lose their present opportunity to select a health care provider and to receive existing equal (or other) rates for reimbursement and coverage under managed care plans and insurance contracts now in effect. As petitioner correctly points out, the "no" vote result statement should state accurately what voters would retain, under their existing legal or contractual arrangements, if they defeat the measure.

We modify the "yes" and "no" vote result statements as follows:

RESULT OF "YES" VOTE: "Yes" vote would permit patients to choose health care provider; requires equal reimbursement rates, coverage.

RESULT OF "NO" VOTE: "No" vote retains current options to choose health care provider, and obligations regarding reimbursement, coverage.

Finally, petitioner challenges the Attorney General's summary. We have considered petitioner's arguments and conclude that the Attorney General's summary complies substantially with ORS 250.035(2)(d) (1997). Accordingly, we do not alter the Attorney General's summary.

We certify to the Secretary of State the following ballot title:

PATIENTS MAY CHOOSE HEALTH CARE PROVIDER; REQUIRES EQUAL REIMBURSEMENT, COVERAGE

RESULT OF "YES" VOTE: "Yes" vote would permit patients to choose health care provider; requires equal reimbursement rates, coverage.

RESULT OF "NO" VOTE: "No" vote retains current options to choose health care provider, and obligations regarding reimbursement, coverage.

SUMMARY: Modifies health care provider contracting options by requiring health and casualty insurance policies, managed health care plans to provide same reimbursement rates, coverage, regardless of care provider. For medical services, allows patient's choice of physician or chiropractor as primary care, health care provider. For vision services, allows choice of ophthalmologist, optometrist. Patients may change primary care provider, but can be limited to two changes over twelve months. Excludes Oregon Medical Assistance Program, Oregon Health Plan, student health insurance programs, public employee benefits, inmates, workers' compensation.

Ballot title certified as modified. This decision shall become effective in accordance with ORAP 11.30(10).

VAN HOOMISSEN, J., dissenting

I respectfully dissent. In my view, the Attorney General's certified ballot title substantially complies with the requirements of ORS 250.035 (1997). ORS 250.085(5).

The unspoken premise on which this court's modification decision is based is that it does not violate the principle of separation of powers for this court to rewrite a certified ballot title. See Rooney v. Kulongoski (Elections Division #13), 322 Or 15, 55, 902 P2d 1143 (1995) (Unis, J., dissenting) (arguing that judicial modification of ballot titles offends Article III, section 1, of the Oregon Constitution); Sizemore v. Kulongoski, 322 Or 229, 237, 905 P2d 1146 (1995) (Durham, J., concurring) (same). The court should revisit that premise.

Riggs, J., joins in this opinion.

1. ORS 250.085(5) provides:

"The court shall review the title for substantial compliance with the requirements of ORS 250.035, and shall certify a title meeting this standard to the Secretary of State."

Return to previous location.

2. The 1999 Legislature amended ORS 250.035 (2) (1997) in several respects. Or Laws 1999, ch 793,

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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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