S48108 Beall Transport Equipment Co. v. Southern Pacific

SUPREME COURT CASES

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State: Oregon

Docket No: none

Case Date: 12/27/2002

FILED: December 27, 2002

IN THE SUPREME COURT OF THE STATE OF OREGON

BEALL TRANSPORT EQUIPMENT COMPANY,
an Oregon corporation,

Respondent on Review,

SOUTHERN PACIFIC TRANSPORTATION COMPANY,
a Delaware corporation;
UNION PACIFIC RAILROAD COMPANY,
a Utah corporation;
CITY OF PORTLAND;
STATE of OREGON,
by and through the
Department of Motor Vehicles;
JOHN HREN; JOHN R. GREISEN;
THOMAS MORRISON; W. RAYMOND HORN;
STUART ABRAMS; WAYNE C. KLEPPER;
and STUART ABRAMS,
dba ABRAMS METALS, INC.,

Defendants,

and

ABRAMS, INC.,
dba Abrams Scrap Metals, Inc.,

Petitioner on Review.

SOUTHERN PACIFIC TRANSPORTATION COMPANY,
a Delaware corporation;
and UNION PACIFIC RAILROAD COMPANY,
a Utah corporation,

Respondents on Review,

WAYNE C. KLEPPER,

Third-Party Defendant,

and

STUART ABRAMS,

Petitioner on Review.

(CC 9701-00347; CA A102619; SC S48108)

On review from the Court of Appeals.*

Argued and submitted January 10, 2002.

Michael H. Bloom, Portland, argued the cause and filed the briefs for petitioners on review. With him on the briefs was Thomas M. Christ.

Patrick L. Block, of Buono Block P.C., Portland, argued the cause and filed the briefs for respondent on review Beall Transport Equipment Company. With him on the briefs was Steven G. Marks.

Jeffrey M. Kilmer, of Kilmer, Voorhies & Laurick, P.C., Portland, argued the cause and filed the briefs for respondents on review Southern Pacific Transportation Company and Union Pacific Railroad Company. With him on the briefs was Gregory B. Snook.

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

LEESON, J.

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

*Appeal from Multnomah County Circuit Court, Roosevelt Robinson, Judge. 170 Or App 336, 13 P3d 130 (2000).

**De Muniz, J., did not participate in the consideration or decision of this case.

LEESON, J.

Abrams's (1) petition for review presents two issues. The first is whether the Court of Appeals erred in applying the "abuse of discretion" standard of review in reviewing the trial court's denial of Abrams's motion for a mistrial following an off-the-record, ex parte communication between an opposing lawyer and a juror. The second is whether Abrams preserved the error it assigned on appeal, namely, the trial court's failure to give a jury instruction that Abrams had requested. We decline to address the mistrial issue, because Abrams failed to raise it in the Court of Appeals. In regard to the jury instruction issue, for the reasons that follow, we reverse the decision of the Court of Appeals.

We take the following undisputed facts primarily from the Court of Appeals' opinion. In May 1995, Klepper, the manager of Southern Pacific's Brooklyn Yard in Portland, sold several semi-trailers to Abrams, a scrap metal dealer. Klepper falsely told Abrams that Southern Pacific owned the trailers and that Klepper was selling them on behalf of Southern Pacific. In fact, Southern Pacific only leased the trailers. By the end of 1996, Klepper had sold Abrams more than 100 such trailers, and Abrams, in turn, had sold at least 79 of the trailers to Beall Transport Equipment Co. (Beall), a used trailer dealer, which in turn sold 55 of the trailers to third parties. Southern Pacific officials eventually learned that their leased trailers were missing and, with the help of the police, recovered many of the trailers from Abrams and Beall.

Those circumstances led to two lawsuits. In one, Beall filed a complaint against Southern Pacific (2) and Abrams, alleging conversion, breach of contract, breach of warranty, and fraud. Southern Pacific filed a cross-claim against Abrams for conversion, and Abrams filed a cross-claim against Southern Pacific for conversion and indemnity. In the second lawsuit, Abrams filed a complaint against Southern Pacific, alleging, in part, breach of contract and conversion. Southern Pacific filed a counterclaim against Abrams, again alleging conversion. The court consolidated the two lawsuits.

Before trial, the court granted Beall's motion for partial summary judgment against Abrams on Beall's breach of contract claim. The only issues for trial were the amount of damages that Abrams owed on Beall's breach of contract claim, the merits of Beall's fraud claim against Abrams, and Abrams's and Southern Pacific's claims against each other.

During a recess at trial, the lawyers representing Abrams and Southern Pacific went into chambers with the judge to discuss a matter that concerned only those parties. During that time, the lawyer representing Beall spoke to two members of the jury. Thereafter, Abrams moved for a mistrial. A subsequent inquiry revealed that the ex parte communication consisted of the lawyer's comment on one juror's attire and a statement to another juror that the lawyer recognized the juror as an employee of a pub that the lawyer recently had visited. The trial court denied Abrams's motion for a mistrial.

At the close of all the evidence, Abrams submitted section 222A of Restatement (Second) of Torts (1965) (3) as a written jury instruction on conversion. The trial court gave Southern Pacific's requested instruction instead. That instruction consisted of the first paragraph of section 222A only.

The jury returned two special verdicts. In one verdict, the jury awarded Beall damages on its breach of contract claim against Abrams but found that Abrams did not commit fraud. In its second verdict, the jury found that Southern Pacific was entitled to damages from Abrams for conversion. Southern Pacific and Abrams then litigated the amount of those damages in a trial to the bench. After that trial, the trial court entered judgments on the jury's verdicts and on its own damages award.

Abrams appealed, raising six assignments of error. As relevant to the issues on review, the Court of Appeals affirmed the trial court's denial of Abrams's motion for a mistrial. Beall Transport Equipment Co. v. Southern Pacific, 170 Or App 336, 349, 13 P3d 130 (2000). The Court of Appeals also held that Abrams had not preserved its objection to the trial court's failure to give Abrams's requested jury instruction containing the complete text of section 222A of the Restatement. Id. at 357.

On review, Abrams first argues that the Court of Appeals erred in reviewing for abuse of discretion the trial court's denial of his motion for a mistrial. Abrams contends that the abuse of discretion standard is appropriate only when an ex parte communication is between a party and a juror, or between a witness and a juror. According to Abrams, a communication between a lawyer and a juror is analogous to a communication between a judge and a juror, and should be considered error as a matter of law. Huntley v. Reed, 276 Or 591, 594, 556 P2d 122 (1976) (holding new trial required after judge's ex parte communication with jury in response to jury question during deliberations because there was "no way of reaching a conclusion about what transpired other than by adopting the judge's recollection").

However, Abrams asked the Court of Appeals to review for abuse of discretion the trial court's denial of Abrams's motion for a mistrial based on the lawyer-juror ex parte communication. Even assuming that some other standard of review is appropriate when reviewing the denial of a motion for mistrial based on lawyer-juror ex parte communications, we will not address Abrams's argument on that point for the first time on review. See Tarwater v. Cupp, 304 Or 639, 643-45 & n 5, 749 P2d 125 (1988) (refusing to address on review argument different from one made before Court of Appeals).

We turn to Abrams's contention that the trial court erred in refusing to give Abrams's requested jury instruction regarding conversion. As noted, the Court of Appeals held that Abrams had not preserved that error. Beall, 170 Or App at 357. Specifically, the Court of Appeals held that, under ORCP 59 H, set out below, ___ Or at ___ (slip op at ___), "the general rule is that a litigant * * * need not except to failure to give a requested instruction, because the trial court's refusal to give the requested instruction 'import[s] an exception.'" 170 Or App at 352 (emphasis and brackets in original) (quoting ORCP 59 H). However, the Court of Appeals, citing this court's decisions in Holland v. Srs. of St. Joseph, Seeley, 270 Or 129, 522 P2d 208, on reh'g, 526 P2d 577 (1974), and Roberts v. Mitchell Bros., 289 Or 119, 611 P2d 297 (1980), stated that there is an exception to that general rule: If the requested instruction does not "clearly and directly" alert the trial court to the difference between the instruction requested and the instruction that the court chooses to give, and if the requested instruction does not tell the court "why the court's [chosen instruction is] wrong," then requesting an alternative instruction is not sufficient to preserve the claim that the trial court erred in refusing to give the requested instruction. Id. at 356-57.

Abrams contends that the Court of Appeals' conclusion contradicts ORCP 59 H. Abrams argues that, under that rule, requesting an instruction "imports an exception," so the party requesting the instruction is not required also to except to the trial court's failure to give that instruction. Southern Pacific responds that this court should adopt the Court of Appeals' analysis and holding. (4)

We begin with the text of ORCP 59 H. See Mulier v. Johnson, 332 Or 344, 349, 29 P3d 1104 (2001) (court applies usual statutory construction method when construing Oregon Rules of Civil Procedure). That rule provides, in part:

"* * * [N]o instruction given to a jury shall be subject to review upon appeal unless its error, if any, was pointed out to the judge who gave it and unless a notation of an exception is made immediately after the court instructs the jury. Any point of exception shall be particularly stated and taken down by the reporter or delivered in writing to the judge. It shall be unnecessary to note an exception in court to any other ruling made. All adverse rulings, including failure to give a requested instruction * * *, shall import an exception in favor of the party against whom the ruling was made."

The first two sentences of ORCP 59 H describe what a party must do in the trial court to preserve an error in instructing the jury: The party must point out the error to the judge immediately after the judge has instructed the jury, and the party must "particularly state" the objection and either deliver the objection to the judge in writing or make sure that the court reporter takes down the objection. The next sentence makes clear that, under the rules of civil procedure, a party need not take those steps to preserve error regarding "any other ruling made." The last sentence specifies that the trial court's "failure to give a requested instruction" is among the rulings to which a party need not except:

"It shall be unnecessary to note an exception in court to any other ruling made. All adverse rulings, including failure to give a requested instruction * * *, shall import an exception in favor of the party against whom the ruling was made."

(Emphasis added.)

By its terms, therefore, ORCP 59 H provides, first, that a party must object specifically to a jury instruction that the trial court gives immediately after the trial court instructs the jury. Second, the rule provides that a party is not required to make a similar objection to the trial court's refusal to give an instruction that the party had requested. See Hernandez v. Barbo Machinery Co., 327 Or 99, 105, 957 P2d 147 (1998) ("[I]f a party requests a jury instruction that correctly states the law on the subject in issue, that party need not register a separate objection to the court's other instructions in order to preserve for appellate review the question whether the court erred in declining to deliver the requested instruction.").

Nonetheless, Southern Pacific argues that this court's cases compel a different result. Specifically, Southern Pacific argues that this court has created an "exception" to the rule stated in the last sentence of ORCP 59 H. Under that exception, Southern Pacific argues, a party must do more than merely request a jury instruction to preserve for appeal its objection to the trial court's failure to give that instruction. Rather, the party also must show that the instruction that it requested "clearly and directly" alerted the trial court to the error in an instruction that the court gave.

As noted above, Southern Pacific bases its argument on this court's decisions in Holland and Roberts. Before discussing those cases, we first must address this court's decision in Crow v. Junior Bootshops, 241 Or 135, 404 P2d 789 (1965), the case upon which both Holland and Roberts relied.

In Crow, the defendant assigned error on appeal to the trial court's failure to give the defendant's requested instruction on contributory negligence. 241 Or at 141. The defendant had not excepted specifically when the trial court instructed the jury that it should consider contributory negligence only in mitigation. Id. However, the defendant had requested a jury instruction that correctly stated the law in effect at the time, namely, that contributory negligence was a bar to recovery. Id.

The statute that governed the preservation of jury instruction error at the time of this court's decision in Crow was former ORS 17.510 (1963), repealed by Or Laws 1979 ch 284,

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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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