S48116 Swett v. Bradbury

SUPREME COURT CASES

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State: Oregon

Docket No: CC98-C-20484

Case Date: 04/24/2003

Filed: April 24, 2003

IN THE SUPREME COURT OF THE STATE OF OREGON

MICHAEL SWETT;
DAVID FIDANQUE;
and the AMERICAN CIVIL LIBERTIES UNION OF OREGON, INC.,

Respondents on Review,

BILL BRADBURY,
Secretary of State;
and the STATE OF OREGON,

Petitioners on Review,

and

VIRGINIA MARKELL;
LAURENCE PERRY;
and SUSAN REMMERS,

Respondents.

(CC 98-C-20484; CA A107552 (Control),
A107799; SC S48116)

On petition for attorney fees of respondents on review filed May 3, 2002.

Thomas M. Christ, of Cosgrave Vergeer Kester LLP, Portland, filed the petition for attorney fees for respondents on review.

Philip Schradle, Special Counsel to the Attorney General, Salem, filed the objection to petition for attorney fees for petitioners on review. With him on the objection were Hardy Myers, Attorney General, and Michael D. Reynolds, Solicitor General.

Paul B. Gamson, of Smith, Gamson, Diamond & Olney, Portland, filed objections to the petition for attorney fees for respondents.

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

GILLETTE, J.

Respondents on review are awarded $21,992.50 as reasonable attorney fees on review.

*Leeson, J., resigned January 31, 2003, and did not participate in the decision of this petition for attorney fees.

GILLETTE, J.

This application for an award of attorney fees on review arises out of a successful challenge to the constitutionality of Ballot Measure 62 (1998). (1) See Swett v. Bradbury, 333 Or 597, 43 P3d 1094 (2002) (declaring measure unconstitutional because it violated separate-vote requirement of Oregon Constitution). Respondents on review, plaintiffs below (plaintiffs), the successful challengers of the measure, seek an award of attorney fees from the state and from respondents (intervenors below) for plaintiffs' efforts in securing that outcome in this court. For the reasons that follow, we allow their petition against the state. (2)

Ordinarily, a court awards attorney fees to a litigant only if a statute or contract authorizes such an award. See, e.g., Samuel v. Frohnmayer, 308 Or 362, 366, 779 P2d 1028 (1990) (stating principle). Plaintiffs do not claim a right to attorney fees under either of those sources of law. Instead, plaintiffs assert that they are entitled to an award of attorney fees under the rationale for such awards described in Deras v. Myers, 272 Or 47, 66-67, 535 P2d 541 (1975), and most recently explained by this court in Armatta v. Kitzhaber, 327 Or 250, 287-88, 959 P2d 49 (1998). See also Lehman v. Bradbury, 334 Or 579, 583, 54 P3d 591 (2002) (applying Armatta criteria for such awards). Under that rationale, a "court of equity" has inherent power to award attorney fees to a prevailing litigant in appropriate circumstances. Armatta, 327 Or at 287, quoting Deras, 272 Or at 65-66.

Plaintiffs seek an award of attorney fees totaling $21,992.50, which represents 80 hours of time devoted to their successful effort in the case. Plaintiffs assert that such an award is justified because they "successfully defended 'the integrity of the amendment and initiative process,' an achievement that benefitted all Oregonians." (Quoting Armatta, 327 Or at 289.) Defendants (collectively, "the state") object, arguing that (1) plaintiffs vindicated private, not public, interests in challenging Measure 62; (2) the theory under which this court has made such awards does not support such awards; and (3) the relief that plaintiffs requested in this case was legal, not equitable, and therefore does not support an award of attorney fees under this court's precedents.

This court in Armatta presented the following overview of the history of the court's exercise of its inherent, equitable power to award attorney fees:

"Since issuing its decision in Deras, this court has not allowed another attorney fee award under the principles set out in that case. In denying such requests, the court has clarified that there are a number of prerequisites that must be fulfilled before such an award is appropriate. First, the proceeding must be one in equity. See, e.g., Dennehy v. Dept. of Rev., 308 Or 423, 428, 781 P2d 346 (1989) (denying attorney fees, in part, because the action was not one in equity); Cook v. Employment Division, 293 Or 398, 401, 649 P2d 594 (1982) (same). Second, the party requesting attorney fees must be the prevailing party. See Gugler v. Baker Co. Ed. Serv. Dist. (Gugler III), 305 Or 570, 574, 754 P2d 903 (1988) (denying fees because the plaintiffs had not prevailed in their action) * * *. Finally, in filing the action, the party requesting attorney fees must have been seeking to 'vindicat[e] an important constitutional right applying to all citizens without any gain peculiar to himself,' Dennehy v. City of Gresham, 314 Or [600, 602, 841 P2d 633 (1992)], as opposed to vindicating 'individualized and different interests,' Vannatta [v. Keisling, 324 Or 514, 549, 931 P2d 770 (1997)], or 'any pecuniary or other special interest of his own aside from that shared with the public at large.' Dennehy v. Dept. of Rev., 308 Or at 427."

327 Or at 287. After the foregoing recital, this court held that the Armatta plaintiffs were entitled to an award of attorney fees because, in filing their action, they

"primarily sought to enforce the provisions of the Oregon Constitution that relate to amendment and revision of that document, and ultimately prevailed on their claim that [Ballot] Measure 40 [1996] was not passed in compliance with the separate-vote requirement of Article XVII, section 1."

Id. at 289. With that background in mind, we turn to the issues raised by the present petition.

We note at the outset that the state does not contest three aspects of plaintiffs' petition for an award of attorney fees. Plaintiffs were the prevailing party, and the state does not challenge either the reasonableness of the amount of time expended by counsel for plaintiffs or the hourly rate charged.

The state does assert, however, that this court should deny the petition for attorney fees for three other reasons. First, the state asserts that, in seeking to have Measure 62 invalidated, plaintiffs were acting in their own interests, and not in the interests of the public at large. For example, the state asserts that one plaintiff, Swett, alleged that he is a public employee who favored one part of the measure, but not others. We are not persuaded. We cannot discern how that fact makes Swett any different from any other citizen who voted for or against the measure. Nothing in our jurisprudence suggests that holding a point of view respecting the measure in question is disqualifying. Indeed, if caring about the outcome of the vote is to be a disqualifying criterion, then virtually all future plaintiffs would be disqualified from receiving attorney fees unless they can aver that they really do not care about the outcome.

The state argues that plaintiff Fidanque and plaintiff American Civil Liberties Union of Oregon (ACLU), of which Fidanque is executive director, had a special interest in that they did not wish to see the ACLU burdened with certain requirements of the measure. Again, we fail to see how that makes Fidanque and the ACLU different from any other citizen who had an interest in the measure and in what he or it would have been required to do if the measure had been adopted properly. In addition -- and this point is important as to all three plaintiffs -- plaintiffs' position respecting the measure itself is not the point. What is the point is that plaintiffs seek to vindicate the Oregon Constitution's limitations on the amendment or revision of that document. See Armatta, 327 Or at 289 (making similar point respecting prevailing parties in that case).

The state relies on Vannatta, 324 Or at 548-49, as supporting a contrary conclusion. That case involved a challenge to Ballot Measure 9 (1994), a measure that provided for mandatory contribution limits in state political campaigns and voluntary expenditure limits by candidates, and contained other provisions relating to political contributions and expenditures. Plaintiffs there successfully challenged certain parts of the measure on the ground that those parts violated the right to free expression guaranteed by Article I, section 8, of the Oregon Constitution. However, this court declined to award them attorney fees, explaining:

"Deras was a case in which the petitioner was attempting only to vindicate interests of the public at large. By contrast, some of the petitioners, both individual and institutional, who have brought the present proceeding are not so disinterested. Their victory may benefit many members of the public at large, but that is true of virtually any case involving the right to speak, write, or print freely on any subject whatever. The overall benefit to the public is only an ancillary result in this case. Petitioners such as the political action committee and the potential political candidate have individualized, and different, interests that they seek to vindicate."

Id. at 548-49. The foregoing statement demonstrates the distinction between Vannatta and the present petition. Here, the individual plaintiffs primarily vindicated a public interest, rather than their own.

In summary, we do not deem any of these plaintiffs to be disqualified from receiving an award of attorney fees on the ground that the dominant characteristic of their case was that they were vindicating a private interest of their own, rather than vindicating an interest of the public generally. The state's contrary argument on that ground is not well taken.

The state next argues that this court's decision in Armatta to award attorney fees, and the approach that it represents, is an ill-advised policy choice, one that the court should have left to the legislature. The state's argument disregards the fact that this court and others that grew out of the Anglo-American legal tradition have exercised such an inherent power to award attorney fees for a very long time. We nonetheless assume, as the state appears to assume, that the legislature may decide that it has a role to play in this area, notwithstanding this court's inherent equitable powers. However, we are not persuaded that it was inappropriate in Deras to consider using those powers in that case, and we are not persuaded that this court should reconsider wholly and abandon its case law since Deras in that respect. The state is at liberty to take its policy argument to the political branches of government and, if those branches are receptive, we shall examine their choices respectfully. For now, however, we adhere to our decisions in Deras and Armatta.

Finally, the state argues that plaintiffs in this case are disqualified from receiving an award of attorney fees because it is a prerequisite to such an award that the relief sought by the prevailing parties be equitable in nature, while the relief that plaintiffs sought here -- a declaration that Measure 62 violated the separate-vote requirement of the Oregon Constitution -- was legal in nature.

The state is correct that this court has stated that, to qualify for an award of attorney fees, parties in the position of plaintiffs here must seek some form of equitable relief. See Armatta, 327 Or at 287; Dennehy v. Dept. of Rev., 308 Or at 427-28; Cook v. Employment Division, 293 Or at 401 (all so indicating). It also is true that declaratory judgment proceedings can be legal or equitable in nature, depending on the prayer for relief. Ken Leahy Construction, Inc. v. Cascade General, Inc., 329 Or 566, 571, 994 P2d 112 (1999). Finally, it is true that plaintiffs here sought only a declaration of their rights, and did not request specifically any purely "equitable" form of relief. However, for the reasons that follow, we now conclude that this court's reliance on that criterion in prior cases was dicta in some, overstated in others, and should not be followed here.

As noted, this court specifically has adverted to the requirement that a party seeking an award of attorney fees must have sought equitable relief in at least three cases: Armatta, Dennehy v. Dept. of Rev., and Cook. However, an examination of those cases reveals that none actually depended on that criterion for its disposition. In Armatta, for example, this court merely repeated the criterion from earlier cases (Dennehy v. Dept. of Rev. and Cook), without separately assessing it. (The plaintiffs in Armatta specifically sought the equitable remedy of injunction so there was no need to reexamine the criterion. Id. at 288.)

Dennehy v. Dept. of Rev. was a tax case in which the plaintiff sought an award of attorney fees because he had challenged successfully a practice of the Oregon Department of Revenue by which that department "rounded up" tax assessments on individual parcels of real property. Id. at 425. After first determining that the plaintiff did not qualify for an award under a statute on which he relied, this court then turned to the issue whether it should exercise its inherent equitable power to make an award. The court compared the position of the Dennehy plaintiff with that of the plaintiff in Deras and concluded:

"The present case, by contrast, involves a personal pecuniary interest of the plaintiff (albeit a very small one), i.e., it is an action at law in which plaintiff sought a declaration of his rights and the return of money. No injunctive or other equitable relief was sought or granted. Furthermore, the action was brought in a court that has been granted limited and circumscribed authority to award attorney fees in certain cases."

Dennehy, 308 Or at 428 (citing Cook and Samuel). Two aspects of the foregoing statement are important: First, the court again did not independently assess the "proceeding in equity" criterion; it simply cited Cook for the proposition. Second, the court identified another ground for its decision that was independent and complete: The plaintiff was vindicating a personal financial interest of his own. That latter criterion was sufficient; the discussion of the additional requirement that the proceeding be one in equity was a dictum.

Cook was a case involving a petition for an award of attorney fees arising out of the petitioner's successful challenge of a Court of Appeals decision that itself had been concerned with criteria for the award of fees under a statute, ORS 183.495. Cook, 293 Or at 400. The court first determined in summary fashion that the petitioner did not qualify for an award of attorney fees under the statute. Id. The petitioner also argued, however, that the court should award attorney fees because he had acted as a "private attorney general" and had secured an outcome that would benefit many other litigants. The court responded to that argument as follows:

"In support of his [alternative] claim for attorney fees for acting as a 'private attorney general,' petitioner cites no authority whatsoever. We are aware of none. Perhaps petitioner relies upon our decisions to award attorney fees in Deras v. Myers, 272 Or 47, 535 P2d 541 (1975), and Gilbert v. Hoisting & Port. Engrs., 237 Or 130, 384 P2d 136, 390 P2d 320, cert den 376 US 963 (1964). In those cases we allowed awards of attorney fees based upon the inherent power of a court of equity. In this matter we did not sit in equity."

Cook, 293 Or at 400-01 (emphasis added).

Cook is the only case that we have found in which it may be said that the court actually relied on the "proceeding in equity" criterion to justify its action in denying an award of attorney fees. The case is not helpful analytically, however, because the petitioner had not even made the argument that the court first identified and then rejected. Nonetheless, the court made the statement. An examination of the cases on which the Cook court relied helps explain why it was made.

Gilbert was a case brought against a union by some of its members in which the plaintiffs sought (and received) equitable relief -- an injunction. The trial court also awarded attorney fees to the plaintiffs. On appeal, the union objected to the award of attorney fees on the ground that no statute authorized such an award. This court overruled that objection, stating:

"The authority of a court of equity to award attorneys' fees is not derived solely from the statutes. Equity may under some circumstances as a part of its inherent equitable powers award attorneys' fees."

Gilbert, 237 Or at 137 (emphasis added).

The successful plaintiffs in Gilbert also sought a further award of attorney fees for successfully defending against the union's appeal. In a separate opinion devoted strictly to that issue, i.e., attorney fees on appeal, this court explained:

"In Adair v. McAtee, 236 Or 391, 385 P2d 621, 338 P2d 748 [(1964)], recently decided, we held that 'attorney's fees will not be allowed upon appeal in the absence of a statute so providing or in the absence of any express agreement that the prevailing party is entitled to attorney's fees on appeal.' We were not there concerned with the right to attorney's fees where the allowance of such fees is regarded as an essential ingredient in the equitable interest sought to be protected, as it is in the present case.

"In Gilbert et al. v. Hoisting & Portable Engineers, Local Union No. 701, * * * we affirmed an allowance of attorneys' fees for services rendered in the lower court. There * * * we noted that 'Equity may under some circumstances as a part of its inherent equitable powers award attorneys' fees.' It is not necessary, therefore, to look to a state or an agreement between the parties (as in Adair v. McAtee, supra) to sustain plaintiffs' motion in this case."

Gilbert, 237 Or at 140-41 (internal citation omitted).

In Deras, the plaintiff specifically sought both an injunction and an award of attorney fees. He acknowledged the "American rule" that courts will not award attorney fees in the absence of an authorizing statute or contract, but "correctly point[ed] out that courts of equity have the inherent power to award attorney's fees." Deras, 272 Or at 65-66 (emphasis added). This court stated:

"This power frequently has been exercised in cases where the plaintiff brings suit in a representative capacity and succeeds in protecting the rights of others as much as his own. We recognized this equitable exception to the general rule in Gilbert v. Hoisting & Port. Engrs., * * * a substantially similar case to the one at hand."

Id. at 66 (emphasis added).

Given the foregoing reliance of the Gilbert and Deras courts on the fact that those cases were proceedings in equity, the Cook court's reference to "the inherent power of a court of equity" is understandable. But that reference also is not specific as to how, and to what extent, an equity court's inherent power must have been invoked, or exercised, on the merits of a case, to make the power available to award attorney fees. This case squarely presents that question.

Aided by our nearly 30 years of experience in analyzing Deras-type claims, we now conclude that the "proceeding in equity" criterion is of limited utility in determining whether to award an attorney fee and is of no utility at all if it is read to require a specific prayer for, or the actual award of, equitable relief. We reach that conclusion for several reasons. First, the criterion specifically was established in Cook, a case in which this court did not have the benefit of advocacy concerning the criterion. Second, Cook was a case that could (and probably should) have been decided the same way on another criterion, viz., the lack of statutory authorization for an award, when the plaintiff's theory on the merits relied on a statute. Third, the criterion has not been utilized dispositively since Cook. Fourth, and most important, the criterion imposes a pointless pleading requirement, as we shall explain below.

As noted, this case on the merits involved a declaratory judgment proceeding and, in such proceedings, a court has the power to grant equitable remedies where appropriate. Ken Leahy Construction, 329 Or at 571. Although it is true that plaintiffs in the case on the merits confined their prayer to a request for a declaration of their rights, they could have sought an injunction as well. They did not so do because it would have been pointless. As the state itself acknowledges, equitable relief -- such as an injunction against enforcement of Measure 62 -- was not necessary, because this court and the lower courts would assume that the responsible state officials would honor the court's declaration without the necessity of an accompanying injunction. See Burke v. Children's Services Division, 288 Or 533, 548, 607 P2d 141 (1980) (concluding that declaratory relief need not include injunction, because court assumed responsible state agencies would comply with law as determined by court). It thus would be an odd triumph of form over substance to sustain the state's argument here, thereby requiring future litigants formalistically to allege that the state as a defendant in a similar declaratory judgment proceeding will not obey a trial court's declaration of the applicable law to qualify for an award of attorney fees. We hold that it is sufficient under these circumstances that the plaintiffs invoked the court's declaratory judgment powers.

For the foregoing reasons, we conclude that the state's objections are not well taken.

Plaintiffs, respondents on review, are awarded $21,992.50 as reasonable attorney fees on review.

1. Measure 62 added ten new sections to the Oregon Constitution. Among other things, it required recipients of political contributions of $500 or more to disclose those and subsequent contributions to the Secretary of State; it required chief petitioners on all statewide initiative petitions or referenda to disclose all contributions received or expenditures made in support of those petitions or referenda to the Secretary of State; and it required entities receiving contributions or making expenditures for the purpose of influencing the collection of signatures on statewide initiative or referendum petitions to file a statement of organization with the Secretary of State, form a petition political committee, and disclose contributions and expenditures to the Secretary of State.

Return to previous location.

2. Respondents are not liable for attorney fees in these circumstances. See Lehman v. Bradbury, 334 Or 579, 583-86, 54 P3d 591 (2002) (explaining principle). Their objection to the petition is sustained.

Return to previous location.

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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.
1

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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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