S47731 SAIF v. Dubose

SUPREME COURT CASES

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State: Oregon

Docket No: none

Case Date: 08/07/2003

FILED: AUGUST 7, 2003

IN THE SUPREME COURT OF THE STATE OF OREGON

In the Matter of the Compensation of
Jodie M. Dubose, Claimant.

SAIF CORPORATION
and EVERGREEN RESTAURANT GROUP,

Respondents on Review,

JODIE M. DUBOSE,

Petitioner on Review.

(WCB 97-01993; CA A103853; SC S47731)

On review from the Court of Appeals.*

Argued and submitted September 10, 2001.

Edward J. Harri, Salem, argued the cause for petitioner on review. With him on the brief was James C. Egan, Albany.

Julene M. Quinn, Salem, argued the cause and filed the brief for respondents on review.

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

RIGGS, J.

The decision of the Court of Appeals is reversed, and the case is remanded to the Court of Appeals for further proceedings.

*Judicial review from the Workers' Compensation Board. 166 Or App 642, 999 P2d 529 (2000).

**Leeson, J., resigned January 31, 2003, and did not participate in the decision of this case.

RIGGS, J.

In this workers' compensation case, SAIF Corporation (SAIF), the insurer, denied a claim for benefits because claimant had failed to cooperate with SAIF's investigation. Claimant requested a hearing, using the standardized form that the Workers' Compensation Board (board) provides for such requests, but she did not check a box on the hearing request form to indicate that SAIF had denied her claim for "worker noncooperation." Instead, claimant checked the box to indicate that SAIF had denied her claim on "compensability - complete claim denial" grounds. At the hearing, SAIF argued that claimant was not entitled to a hearing on the denial of her claim because she had failed to request an "expedited hearing" on the denial of her claim on noncooperation grounds. The administrative law judge (ALJ) and, later, the board held that claimant had failed to attend an insurer medical examination (IME), (1) but that her failure to attend was for reasons beyond her control. The Court of Appeals reversed, holding that claimant had been required to request an "expedited hearing" and that, by checking the incorrect box on the hearing request form, she had failed to do so. SAIF v. Dubose, 166 Or App 642, 999 P2d 529 (2000). For the reasons that follow, we reverse the decision of the Court of Appeals and remand to that court for further proceedings.

We take the following undisputed facts from the opinion of the Court of Appeals and the record:

"Claimant filed a claim for workers' compensation benefits based on a diagnosis of carpal tunnel syndrome and situational anxiety, the cause of which she attributed to her work as an assistant manager of a McDonald's restaurant. SAIF scheduled claimant for an independent medical examination (IME), notified her of the date, time, and place of the IME, and reminded claimant of her obligation to cooperate and assist in the investigation of her claim. See ORS 656.262(14). Claimant did not attend the IME. On January 24, 1997, the Department of Consumer and Business Services (DCBS) notified claimant that it would be suspending her compensation benefits for 'noncooperation' based on her failure to attend the IME. DCBS later issued an order suspending benefits and allowing SAIF to deny the claim unless claimant cooperated within 30 days of the January 24 notice. Claimant did not appeal that order. Nor did she communicate with DCBS or SAIF during the 30-day period. SAIF denied the claim on February 25, 1997, citing claimant's failure to cooperate as the sole reason for the denial.

"On March 5, 1997, claimant requested a hearing on SAIF's denial by filling out a standardized form provided by the Board. That form stated: 'A hearing is requested for the reason(s) checked below.' Claimant checked 'DENIAL' and, as the reason for the denial, marked 'Compensability--complete claim denial.' Claimant did not check the box identifying a denial based on 'Worker noncooperation.'

"A hearing was scheduled for June 2, 1997, almost three months after claimant's hearing request. At the beginning of the hearing, the ALJ identified the issues before it as 'compensability of the claim and a carrier-paid fee if claimant prevails.' SAIF clarified that its denial was not based on noncompensability but was based, instead, on claimant's noncooperation. SAIF argued that claimant should not be allowed to proceed because she had failed to request an expedited hearing as required by ORS 656.262(15), which provides, in part:

'[T]he insurer * * * may deny the claim because of the worker's failure to cooperate. * * * After such a denial, the worker shall not be granted a hearing or other proceeding under this chapter on the merits of the claim unless the worker first requests and establishes at an expedited hearing under ORS 656.291 that the worker fully and completely cooperated with the investigation, that the worker failed to cooperate for reasons beyond the worker's control or that the investigative demands were unreasonable.'

(Emphasis added.) The ALJ did not consider claimant's failure to request an expedited hearing to 'be of significance' and determined that claimant should be allowed to present evidence establishing the reasonableness of her failure to attend the IME. Claimant put on evidence that she was unable to attend the IME due to hazardous weather conditions, and the ALJ concluded that claimant's failure to cooperate was beyond her control. Accordingly, the ALJ set aside SAIF's denial and ordered that SAIF process the claim.

"On review of the ALJ's order, the Board agreed with SAIF that a worker first must challenge a noncooperation denial before he or she is entitled to a hearing on the merits of the claim for compensation. The Board determined, however, that ORS 656.262(15) does not provide that an expedited hearing is the 'only' avenue for challenging a noncooperation denial. Specifically, the Board said:

'For instance, the statute does not provide that "the worker first requests and establishes only at an expedited hearing * * *." In the absence of such limiting language, we find that the statute shows that an expedited hearing is an option, not a requirement.

'* * * Under ORS 656.291 and OAR 438-013-0010(1)(c), the Board assigns certain cases to the Expedited Claims Service. In other words, there is no statutory procedure for the worker to request an expedited hearing.'

(Emphasis in original.) Thus, the Board concluded that a worker need only make a generic request for a hearing and that the Board has the option, but not a mandatory duty, to provide a hearing on an expedited basis. The Board therefore affirmed the ALJ's order."

Dubose, 166 Or App at 644-46 (footnote omitted). SAIF sought judicial review.

The Court of Appeals reversed. The court first rejected the board's conclusion that ORS 656.262(15) did not mandate an expedited hearing. The court also rejected the board's conclusion that a claimant has no duty to request an expedited hearing if the insurer denied the claim for worker noncooperation. The court noted that the statutory text "plainly places a burden on the worker to make an effective request for the necessary hearing." 166 Or App at 647. The court concluded that the board provided a reasonable means for claimants to request an expedited hearing on a noncooperation denial: checking the appropriate box on the standardized form that the board provided. As the court reasoned, claimant here did not check the correct box and, therefore, did not receive an expedited hearing. "Given claimant's failure to do the minimum necessary to request an expedited hearing, and because an expedited hearing in fact was not held, SAIF was entitled to have the noncooperation denial upheld." Id.at 648. Claimant petitioned this court for review.

As the foregoing summary reveals, this case requires that we determine what steps the pertinent statutes required claimant to take to obtain a hearing after SAIF denied her claim on the ground of worker noncooperation. For the reasons set out below, we conclude that claimant does not have a duty to specify for the board that the hearing requested is an expedited one.

In construing the relevant statutes, we use the methodology that this court summarized in PGE v. Bureau of Labor and Industries, 317 Or 606, 610-12, 859 P2d 1143 (1993). At the first level of analysis, we examine the text and context of the statute, giving words of common usage their plain, natural, and ordinary meaning. Id. If that examination reveals the clear intent of the legislature, then our inquiry is complete. Id. at 611.

We begin with ORS 656.262. One part of that statute imposes on a claimant a duty to cooperate with the insurer's investigation of a claim for workers' compensation benefits. ORS 656.262(14). (2) A second part of that statute sets out the consequences of a claimant's failure to cooperate and provides, in part:

"(15) If the director finds that a worker fails to reasonably cooperate with an investigation involving an initial claim to establish a compensable injury or an aggravation claim to reopen the claim for a worsened condition, the director shall suspend all or part of the payment of compensation after notice to the worker. If the worker does not cooperate for an additional 30 days after the notice, the insurer or self-insured employer may deny the claim because of the worker's failure to cooperate. * * * After such a denial, the worker shall not be granted a hearing or other proceeding under this chapter on the merits of the claim unless the worker first requests and establishes at an expedited hearing under ORS 656.291 that the worker fully and completely cooperated with the investigation, that the worker failed to cooperate for reasons beyond the worker's control or that the investigative demands were unreasonable. If the Administrative Law Judge finds that the worker has not fully cooperated, the Administrative Law Judge shall affirm the denial, and the worker's claim for injury shall remain denied. If the Administrative Law Judge finds that the worker has cooperated, or that the investigative demands were unreasonable, the Administrative Law Judge shall set aside the denial, order the reinstatement of interim compensation if appropriate and remand the claim to the insurer or self-insured employer to accept or deny the claim."

ORS 656.262(15) (emphasis added).

The emphasized wording of ORS 656.262(15) indicates that, if an insurer denies a claim because of a claimant's failure to cooperate, then the claimant "shall not" receive any further proceedings on the merits of the claim "unless the worker first requests and establishes at an expedited hearing under ORS 656.291" one of the facts set out in the statute that demonstrates the claimant's cooperation or justifies or excuses the claimant's noncooperation. The wording of that condition, viewed in isolation, does not make clear whether the word "requests" requires a claimant specifically to request an expedited hearing or whether the claimant need request only a hearing and then must establish the pertinent facts at the disposition of the claim under ORS 656.291.

That potential ambiguity disappears, however, when we consider that statute together with ORS 656.291, which provides, in part:

"(1) The Workers' Compensation Board, by rule, shall establish an Expedited Claim Service to provide for prompt, informal disposition of claims.

"(2) The board shall assign to the service those claims:

"(a) For which a hearing has been requested when the only matters unresolved do not include compensability of the claim and the amount in controversy is $1,000 or less * * *."

ORS 656.291(2)(a) imposes on the board the obligation to assign to the Expedited Claim Service (ECS) claims that meet three requirements. First, a party must have requested a hearing. Second, the matters unresolved must not include the compensability of the claim. Third, the amount in controversy must be $1,000 or less.

Under that subsection, the board's assignment responsibility depends on the occurrence of a single procedural act: the submission of a request for a hearing by a party. Nothing in the wording of the statute indicates that the requesting party has any pleading obligation to request an expedited hearing under ORS 656.291(2)(a). In that respect, the legislature's procedure for requesting a hearing under ORS 656.291(2)(a) resembles the procedure for requesting "a hearing on any matter concerning a claim" under ORS 656.283(1), in which a claimant also has no statutory duty to request a particular kind of hearing.

ORS 656.291(2)(a) also does not characterize the second and third criteria identified in that statutory provision as pleading requirements that the party who requests the hearing must satisfy. Rather, they are facts that the board must address. If they are true, then the board's assignment responsibility under the statutory provision arises.

The hearing procedure on a noncooperation denial described in ORS 656.262(15) similarly begins with a single procedural act: the submission of a request for a hearing by the worker. There are obvious distinctions in the subject matter of the hearings described in ORS 656.262(15) and ORS 656.291(2)(a). However, those distinctions have nothing to do with, and therefore do not undermine, the significance of the similarity of the procedural step that the legislature chose for the initiation of hearings under each statute.

ORS 656.262(15) and ORS 656.291(2)(a) each specify the statutory criteria that govern whether a claim qualifies for an expedited hearing. Under ORS 656.262(15), the board must resolve through an expedited hearing all claims for which the claimant requests a hearing if the insurer or employer has denied the claim due to the claimant's failure to cooperate. As noted above, ORS 656.291(2)(a) lists the criteria that the board must assess (specifically, no compensability issue is present and the amount in controversy must be $1,000 or less), but requires the board to assign to the ECS each claim that meets the listed criteria.

In this case, the board focused on the symmetry, discussed above, in the procedural operation of ORS 656.262(15) and ORS 656.291(2)(a). The board concluded that, under ORS 656.262(15), a claimant must request a hearing after an insurer denies a claim for noncooperation and that, following a request for a hearing, "if appropriate, it is the Board's duty to assign the case to [the ECS]."

That reasoning is persuasive. Under the two statutes discussed above, the responsibility to provide an expedited hearing arises from the board's application of statutory criteria to the parties' dispute, not from any pleading burden that the statutes impose. SAIF's contrary construction would alter, and significantly reduce, the board's responsibility under ORS 656.262(15) by allowing the form of the claimant's request for hearing, rather than the board's assessment of the nature of the dispute, to determine whether the board shall schedule an expedited hearing under ORS 656.291. That construction might permit a claimant, by artful pleading, to force the board to proceed directly to a hearing on the merits and undermine the legislature's declaration in ORS 656.262(15) that an expedited hearing on a noncooperation denial must precede "a hearing or other proceeding under this chapter on the merits of the claim * * *."

The foregoing discussion of the context of ORS 656.262(15) satisfies us that the legislature did not intend to impose under that statute a pleading burden requiring a claimant to request a hearing that is expedited. The statutory term "requests" refers to a request for a hearing, not to a request for a particular kind of hearing. As the board correctly concluded, once the claimant requests a hearing, the obligation to schedule an expedited hearing under that statute rests with the board. Because the legislature's intent is clear from the statutory text and context, our interpretive task is at an end.

Here, the board determined that claimant had requested a hearing and that no statute required her specifically to request an expedited hearing. The board's construction of ORS 656.262(15) in that regard was correct. The Court of Appeals erred in reaching a contrary conclusion.

SAIF also contends that claimant in this case did not actually receive "an expedited hearing under ORS 656.291" and that ORS 656.262(15) bars further proceedings on the merits unless the claimant received such a hearing. We agree that ORS 656.262(15) contemplates that the board will assign to the ECS each claim in which a claimant requests a hearing on a noncooperation denial. The board erred in concluding that its assignment obligation was only an option. We also agree with SAIF that the board did not assign this claim to the ECS. Instead, the ALJ conducted a conventional hearing limited to the worker cooperation issues identified in ORS 656.262(15), decided that claimant had failed to cooperate for reasons beyond her control, set aside SAIF's noncooperation denial, and remanded the claim for further processing. On review, the board affirmed.

SAIF is unable to identify any aspect of the board's substantive decision that departed from the issues that an expedited hearing under ORS 656.262(15) must resolve. The board addressed only the issue of claimant's alleged noncooperation and made no determination regarding the merits of the claim. ORS 656.262(15) does not require the board, in an expedited hearing, to reach any other disposition of the claim.

That leaves SAIF to argue only that the hearing did not occur within the expedited time frame identified in ORS 656.291(3)(b):

"Cases assigned to the Expedited Claim Service pursuant to subsection (2)(a) of this section shall be heard within 30 days of the request for hearing, and an order shall be issued within 10 days of the close of the hearing."

We agree that, due to the board's failure to assign the case under ORS 656.291(2), the parties suffered a delay of approximately three and one-half months in the disposition of SAIF's noncooperation denial.

We conclude, however, that SAIF's argument presents a dispute over procedure that lacks substantive content. SAIF contends, for example, that mental stress conditions can be fleeting and that, in evaluating such claims, time is of the essence. We do not disagree with those general assertions, but, in the context of this case, they are little more than abstractions that fail to identify, from evidence in the record, prejudicial error caused by the procedure that the board followed. SAIF's arguments are unresponsive to the only issue before the ALJ and the board: Did claimant fail to attend the IME for reasons beyond her control? SAIF points to nothing in the record that demonstrates that the timing of the hearing or the board's order had any effect on the board's resolution of that issue.

SAIF cites two cases in support of its argument. In Mabon v. Myers, 329 Or 1, 984 P2d 278 (1999), this court dismissed a petition to review a ballot title because the petitioner, in violation of a statutory obligation, had failed to notify the Secretary of State of the filing of the petition within the time specified by law. The court held that, under the pertinent statutes, compliance with the notice requirement was a prerequisite to obtaining review of a ballot title. Id. at 4.

In Norton v. Compensation Department, 252 Or 75, 448 P2d 382 (1968), this court affirmed a denial of workers' compensation benefits because the claimant, in violation of the applicable statute, had failed to request a hearing by the board within the time permitted by law. The relevant statute directed the board not to grant a hearing or enforce the claim unless the claimant timely filed a request for hearing.

The cases on which SAIF relies are distinguishable. They involve enforcement of statutorily required consequences that flow from a litigant's failure to timely request administrative or judicial relief. This case involves no similar procedural default by a litigant. Claimant did all that the law required of her to request a hearing on SAIF's noncooperation denial. The board failed to assign the claim to the ECS, due perhaps to the board's misunderstanding of its duty to do so. However, the ALJ conducted a hearing, and the board rendered a decision that, on this record, is substantively identical to the dispositon that the parties would have received if the board had assigned the claim to the ECS.

In the absence of a legislative pronouncement, analogous to the statute addressed in Norton, of the consequence that must result from the board's failure to assign the claim to the ECS or from an untimely disposition of the claim by the board, we examine whether the procedure followed below resulted in prejudice to the party seeking relief on review. SAIF makes no showing on this record that the board's procedure in this case caused prejudice of any kind to SAIF's legal position. Consequently, SAIF has not demonstrated that it is entitled to relief on review from the board's order because of the board's failure to assign the claim to the ECS.

We remand the case to the Court of Appeals to permit that court to consider SAIF's remaining assignments of error.

The decision of the Court of Appeals is reversed, and the case is remanded to the Court of Appeals for further proceedings.

1. The ALJ and the board referred to the procedure as an "independent" medical examination. However, we refer to the procedure described in ORS 656.325(1)(a) as an insurer medical examination, because the Director of the Department of Consumer and Business Services used that designation in OAR 436-010-0265, the administrative rule that establishes procedures for medical examinations that an insurer requires under ORS 656.325(1)(a).

Return to previous location.

2. ORS 656.262(14) provides, in part:

"(14) Injured workers have the duty to cooperate and assist the insurer or self-insured employer in the investigation of claims for compensation. Injured workers shall submit to and shall fully cooperate with personal and telephonic interviews and other formal or informal information gathering techniques."

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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
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

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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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