S47417 Novick v. Myers

SUPREME COURT CASES

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State: Oregon

Docket No: none

Case Date: 06/08/2000

Filed: June 8, 2000

IN THE SUPREME COURT OF THE STATE OF OREGON

STEVEN NOVICK,

Petitioner,

HARDY MYERS,
Attorney General for the State of Oregon,

Respondent.

(SC S47417)

En Banc

On petition to review ballot title.

Submitted on the petition, answering memorandum, and record April 25, 2000.

Steven Novick, Portland, filed the petition.

Kaye E. McDonald, Assistant Attorney General, filed the answering memorandum for respondent. With her on the memorandum were Hardy Myers, Attorney General, and Michael D. Reynolds, Solicitor General, Salem.

CARSON, C.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.

CARSON, C.J.

This is a ballot title review proceeding concerning the Attorney General's certified ballot title for a proposed initiative measure, denominated as Initiative Petition 157 (2000). Petitioner is an elector who timely submitted written comments concerning the content of the Attorney General's draft ballot title and who therefore is entitled to seek review in this court. See ORS 250.085(2) (setting out that requirement). We review the Attorney General's certified ballot title to determine whether it substantially complies with the requirements of ORS 250.035(2) (1997). (1) See ORS 250.085(5) (setting out standard of review). For the reasons that follow, we modify the caption and the result statements of the Attorney General's certified ballot title and certify the modified ballot title to the Secretary of State.

The proposed initiative measure at issue would amend the Oregon Constitution by adding a number of provisions pertaining to "[c]ampaign [f]inance [l]imits." Section (1)(a) of the proposed measure would limit contributions and expenditures by both for-profit corporations and unions to $1,000 per election in support of or in opposition to a candidate or a qualified ballot measure. Section (1)(b) would limit contributions by individuals to $1,000, for every six-month period (beginning January 1st), to support or oppose a candidate; however, section (1)(c) provides for unlimited contributions by individuals to support or oppose a ballot measure. Section (1)(d) sets out an exception of sorts to section (1)(a), by providing that a business or industry, but not a union, that would be substantially impacted by passage of a ballot measure could spend unlimited funds "to educate voters regarding the measure and its impact or potential impact on the business or industry, or on the public," with some limitations on the content of the resulting "educational" material. Section (1)(f) (2) would prohibit deduction from an employee's paycheck of funds to be used for political purposes, without an annually renewed, written authorization from the employee stating the specific purpose for which the funds may be used. Sections (1)(g) and (h) set out disclosure requirements concerning the identity of certain contributors, as well as restrictions preventing the enactment of additional or different disclosure requirements. Section (1)(i) provides that, if not fewer than 80 percent of the contributors to a political committee contributed $250 or less in the year before the election, and if none of the contributed funds were received or collected in violation of section (1)(f), then that committee could contribute or expend up to $10,000 to support or oppose a candidate or a ballot measure. Finally, section (1)(j) is a severability provision.

The Attorney General certified the following ballot title for Initiative Petition 157:

"AMENDS CONSTITUTION: LIMITS CERTAIN
CAMPAIGN CONTRIBUTIONS, REQUIRED DISCLOSURES;
REGULATES PAYROLL DEDUCTION CONTRIBUTIONS

"RESULT OF 'YES' VOTE: 'Yes' vote limits certain campaign contributions, expenditures; changes, restricts disclosure requirements; regulates payroll deduction contributions.

"RESULT OF 'NO' VOTE: 'No' vote rejects: limiting certain campaign contributions; changing, restricting disclosure requirements; regulating payroll deduction contributions.

"SUMMARY: Amends constitution. Constitution now guarantees right to make unlimited campaign contributions, expenditures; requires certain campaign disclosures; guarantees contribution methods. Measure limits corporate, union, political committee campaign contributions, expenditures in any election; limits individual contributions, expenditures in candidate elections. Under certain conditions, businesses, but not unions, may expend unlimited amounts to educate voters about ballot measure's impact. Prohibits payroll deductions for political purpose without employee's annual, written authorization specifying purpose. Changes, limits campaign finance disclosure requirements for elections communications, recipients of certain individual contributions. Other provisions."

Petitioner challenges all parts of the Attorney General's certified ballot title.

We begin with petitioner's challenge to the caption, which must contain not more than 10 words that "reasonably identif[y] the subject matter" of the proposed measure. ORS 250.035(2)(a) (1997). In petitioner's view, the fundamental subject matter of the proposed measure is the application of differing contribution limits to four different groups: (1) individuals (who may contribute unlimited funds to ballot measure campaigns and $1,000 every six months to candidate campaigns); (2) for-profit corporations ($1,000 to ballot measure campaigns and to candidate campaigns, but unlimited amounts, in certain circumstances, to "educate" the public about the potential impact of a proposed ballot measure); (3) unions ($1,000 to each type of campaign, with no exceptions); and (4) non-profit corporations, partnerships, etc. (no limits whatsoever). It follows, petitioner contends, that the Attorney General's caption does not identify that subject matter sufficiently because it does not highlight the fact that different requirements apply to different entities.

The Attorney General responds that the proposed measure would affect three areas of campaign financing, only one of which involves imposing various limits upon campaign contributions and expenditures. The Attorney General points out that the proposed measure also would limit disclosure requirements that may be imposed upon campaign contributions and recipients of individual contributions, and also would prohibit certain payroll deductions without the employee's annual, written consent. In the Attorney General's view, the certified caption completely and impartially identifies those three aspects of the subject matter of the proposed measure, within the 10-word limit prescribed by ORS 250.035(2)(a) (1997). The Attorney General also argues that his use of the word "certain" before the words "campaign contributions" in the certified caption adequately conveys that the proposed measure sets out particular contribution and expenditure requirements for different groups, rather than providing a blanket requirement that applies to all participants in the electoral process.

We agree in part with both petitioner and the Attorney General. The Attorney General is correct that the proposed measure essentially encompasses three types of change relating to campaign financing -- contribution and expenditure requirements, disclosure requirements, and contribution by way of employee payroll deduction. As such, all three important aspects of the proposed measure should be included in the caption, if that can be done within the 10-word limit set out in ORS 250.035(2)(a) (1997). See Doell v. Myers, 328 Or 635, 639, 984 P2d 266 (1999) (caption must not give undue attention to one aspect of proposed measure at expense of full description of general subject matter of measure).

We agree with petitioner, however, that the certified caption does not convey sufficiently that the proposed measure would create a new system of campaign finance requirements in which the applicability of differing limits and prohibitions governing campaign contributions and expenditures would turn on the status of the contributor. The word "certain" in the Attorney General's caption fails to identify that significant characteristic of the subject matter of the proposed measure.

As noted, the new campaign finance system set out in the proposed measure also would impose new contributor disclosure requirements and prevent or restrict the enactment of any additional or different disclosure requirements. Additionally, the new system would restrict the deduction of funds from an employee's paycheck, by imposing an authorization requirement. We can identify all those aspects of the proposed measure accurately within the 10-word statutory limit, by modifying the caption for Initiative Petition 157 as follows:

AMENDS CONSTITUTION: CHANGES CAMPAIGN
FINANCE REQUIREMENTS AFFECTING VARIOUS CONTRIBUTORS,
DISCLOSURES, PAYROLL DEDUCTIONS

Petitioner next challenges the Attorney General's "yes" and "no" vote result statements. The "yes" result statement must contain a "simple and understandable statement of not more than 15 words that describes the result if the * * * measure is approved," ORS 250.035(2)(b) (1997), and the "no" result statement must contain a "simple and understandable statement of not more than 15 words that describes the result if the * * * measure is rejected," ORS 250.035(2)(c) (1997). To the extent practicable, the result statements must be written so that they are parallel. ORS 250.035(3).

Petitioner's challenge to the result statements is similar to his challenge to the caption, that is, that the result statements do not convey that the proposed measure would establish different campaign contribution requirements for different entities. As with the caption, the Attorney General responds that his result statements encompass all three major aspects of the proposed measure, to the extent possible, within the 15-word statutory limits set out in ORS 250.035(2)(b) and (c) (1997).

For the reasons set out above in relation to the certified caption, we modify the result statements for Initiative Petition 157 as follows:

RESULT OF "YES" VOTE: "Yes" vote changes campaign finance requirements, varying by contributor; limits contributor disclosures; restricts payroll deductions.

RESULT OF "NO" VOTE: "No" vote rejects: campaign finance requirements, varying by contributor; limiting contributor disclosures; restricting payroll deductions.

Finally, petitioner challenges the Attorney General's certified summary, which must contain "[a] concise and impartial statement of not more than 85 words summarizing the measure and its major effect." ORS 250.035(2)(d) (1997). In petitioner's view, the certified summary is deficient, because it does not explain clearly the different campaign finance requirements for the different entities involved -- for example, that a $1,000 limit applies to most entities, but that businesses (but not unions) could spend unlimited funds to "educate" the public on particular ballot measure campaigns. Petitioner also objects to the failure of the certified summary to mention that the proposed measure establishes an "affirmative right" for individuals to make unlimited contributions to ballot measure campaigns. Finally, petitioner contends that the summary should point out that the proposed measure contains no restrictions on contributions by not-for-profit corporations, partnerships, or other entities that do not fall within the definition of "for-profit corporations," "businesses," or "unions," as those terms are used in the measure.

The Attorney General responds that the certified summary accurately informs the voters that the Oregon Constitution currently provides an unlimited right to make campaign contributions, that the proposed measure would affect that right, and how it would do so. He continues that the certified summary also sufficiently describes the proposed, different limitations upon contributions and expenditures by different entities, while also describing the proposed changes concerning contributor disclosure and payroll deduction contributions. In the Attorney General's view, including the specific monetary limits in the 85-word summary would sacrifice necessary words that describe other important parts of the proposed measure.

We conclude that petitioner has not demonstrated that the certified summary fails to substantially comply with ORS 250.035(2)(d) (1997). The certified summary sufficiently explains that the proposed measure would impose different contribution and expenditure limitations upon different entities, while also conveying, at least by implication, that the proposed measure would not limit individual contributions to ballot measure campaigns. The certified summary further clarifies that, in respect of spending to "educate" the public, unions would be treated differently than businesses. Finally, the certified summary also adequately summarizes other important provisions of the proposed measure relating to contributor disclosure and employee payroll deductions.

We certify the following ballot title to the Secretary of State for Initiative Petition 157:

AMENDS CONSTITUTION: CHANGES CAMPAIGN
FINANCE REQUIREMENTS AFFECTING VARIOUS CONTRIBUTORS,
DISCLOSURES, PAYROLL DEDUCTIONS

RESULT OF "YES" VOTE: "Yes" vote changes campaign finance requirements, varying by contributor; limits contributor disclosures; restricts payroll deductions.

RESULT OF "NO" VOTE: "No" vote rejects: campaign finance requirements, varying by contributor; limiting contributor disclosures; restricting payroll deductions.

SUMMARY: Amends constitution. Constitution now guarantees right to make unlimited campaign contributions, expenditures; requires certain campaign disclosures; guarantees contribution methods. Measure limits corporate, union, political committee campaign contributions, expenditures in any election; limits individual contributions, expenditures in candidate elections. Under certain conditions, businesses, but not unions, may expend unlimited amounts to educate voters about ballot measure's impact. Prohibits payroll deductions for political purpose without employee's annual, written authorization specifying purpose. Changes, limits campaign finance disclosure requirements for elections communications, recipients of certain individual contributions. Other provisions.

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).

1. The 1999 Legislature amended ORS 250.035(2) 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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