S48281 DeLong v. Yu Enterprises, Inc.

SUPREME COURT CASES

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State: Oregon

Docket No: CC16-97-03468

Case Date: 05/31/2002

Filed: May 31, 2002

IN THE SUPREME COURT OF THE STATE OF OREGON

DAVID A. DeLONG,

Petitioner on Review,

YU ENTERPRISES, INC.,

Defendant,

and

EDWARD S. YU,

Respondent on Review.

(CC 16-97-03468; CA A103729; SC S48281)

En Banc

On review from the Court of Appeals.*

Argued and submitted January 10, 2002.

David C. Force, Eugene, argued the cause and filed the briefs for petitioner on review.

Joel S. DeVore, of Luvaas Cobb Richards & Fraser, Eugene, argued the cause and filed the brief for respondent on review.

Steven C. Berman, Portland, filed a brief on behalf of amicus curiae Oregon Trial Lawyers Association.

Robert M. Atkinson, Assistant Attorney General, Hardy Myers, Attorney General, and Michael D. Reynolds, Solicitor General, Salem, filed a brief on behalf of amicus curiae State of Oregon.

Ken Shiroishi, Portland, filed a brief on behalf of amicus curiae Oregon Association of Defense Counsel.

Joshua Marquis, Clatsop County District Attorney, Astoria, filed a brief on behalf of amicus curiae Oregon District Attorneys Association.

DE MUNIZ, J.

The decision of the Court of Appeals is reversed. The judgment of the circuit court is affirmed.

*Appeal from Lane County Circuit Court, David V. Brewer, Judge. 170 Or App 609, 13 P3d 1012 (2000).

DE MUNIZ, J.

The issue in this defamation case is whether a report of an alleged crime to police is subject to a defense of qualified privilege or absolute privilege. The trial court held that the report to the police at issue here enjoyed only a qualified privilege. The Court of Appeals disagreed and held that an absolute privilege applied. DeLong v. Yu Enterprises, Inc., 170 Or App 609, 13 P3d 1012 (2000). We allowed review and now conclude that only a qualified privilege applies to the kind of informal report that was made to the police in this case. Therefore, we reverse the decision of the Court of Appeals and affirm the judgment of the trial court.

We take our statement of facts from the opinion of the Court of Appeals:

"Defendant is part owner of a corporation that operates motels in Springfield. Plaintiff worked as a manager in one of those motels. Plaintiff and defendant became embroiled in a dispute, the details of which are not pertinent. Defendant became upset and fired plaintiff. Defendant then went to the Springfield Police Department and told an officer that, during the time that plaintiff managed the motel, money and hotel property had disappeared. Defendant did not accuse plaintiff of stealing the money or the property, but he did ask that the police investigate.

"The officer investigated and forwarded a report to the district attorney, as was standard procedure. The district attorney told the officer to issue a citation to plaintiff for theft in the second degree, and the officer did so. The district attorney later filed an information charging plaintiff with theft in the second degree. A warrant for plaintiff's arrest followed. Some months later, plaintiff turned himself in to the police. Ultimately, he was released, and the charges against him were dismissed.

"Plaintiff then initiated this action for defamation and malicious prosecution, based on defendant's report to the Springfield police that property and money had been missing during plaintiff's management of the motel. Defendant answered, asserting a defense of absolute privilege. At trial, following the close of plaintiff's case, defendant moved for a directed verdict based on the privilege defense. The trial court took the matter under advisement until the close of the evidence. At the conclusion of the trial, the court denied the motion, ruling that defendant's statements were subject only to a defense of qualified privilege and that there was a jury question as to the applicability of that defense to the evidence before it. The jury ultimately found for defendant on the malicious prosecution claim, but for plaintiff on the defamation claim."

170 Or App at 611-12.

In the Court of Appeals, defendant argued that the trial court erred in denying its motion for a directed verdict. That court agreed with defendant, holding that a report of an alleged crime to the police is absolutely privileged and reversed the judgment of the trial court. Plaintiff sought review in this court to address the question whether, for purposes of a defamation claim, an informal report to the police of an alleged crime is subject to an absolute privilege or a qualified privilege.

Oregon recognizes the defenses of qualified privilege and absolute privilege to allegations of defamation. The former requires a plaintiff to prove that a defendant acted with actual malice; the latter bars the defamation claim altogether. See Wallulis v. Dymowski, 323 Or 337, 348, 918 P2d 755 (1996) (so stating); Moore v. West Lawn Mem'l Park, 266 Or 244, 249, 512 P2d 1344 (1973) ("[w]hen defamatory matter is absolutely privileged no cause of action exists").

A "qualified privilege" requires the plaintiff to prove that the defendant abused the "privileged occasion." Wallulis, 323 Or at 348; see Bank of Oregon v. Independent News, 298 Or 434, 437, 693 P2d 35, cert den 474 US 826 (1985) ("Where the qualified privilege of 'fair comment and criticism' was applicable, the defendants would not be liable if the publication was made in good faith and without malice."). Generally, a qualified privilege exists to protect three kinds of statements: (1) those made to protect the defendant's interests; (2) those made to protect the plaintiff's employer's interests; or (3) those made on a subject of mutual concern to the defendant and the persons to whom the statement was made. Wallulis, 323 Or at 350 (citing Wattenburg v. United Medical Lab., 269 Or 377, 380, 525 P2d 113 (1974)).

Historically, this court has recognized the application of an absolute privilege for defamatory statements in very limited circumstances. See Grubb v. Johnson et al, 205 Or 624, 631, 289 P2d 1067 (1955) ("'[t]he class of absolutely privileged communication is narrow and is practically limited to legislative and judicial proceedings and other acts of state'"). This court has stated that the absolute privilege applies when "the public's interest in the unhampered operation of the government, when exercising such functions, outweighs an individual's interest in the preservation of reputation." Wallulis, 323 Or at 349. Thus, statements that are made as part of judicial and quasi-judicial proceedings are absolutely privileged. See Binder v. Oregon Bank, 284 Or 89, 91, 585 P2d 655 (1978) ("Statements made by parties to judicial proceedings are absolutely privileged."); see also Chard v. Galton, 277 Or 109, 113, 559 P2d 1280 (1977) (absolute privilege should apply to lawyer's letter to adverse party's insurer made before filing of civil complaint, because "lawyer [should] enjoy the same degree of freedom in settlement of his client's case as that which he enjoys in its actual pleading or trial"); Moore, 266 Or at 250-51 (letter written to State Board of Funeral Directors and Embalmers, when that board was sitting in its quasi-judicial function as licensing body, was subject to absolute privilege); Ramstead v. Morgan, 219 Or 383, 401, 347 P2d 594 (1959) (absolute privilege attached to statements in letter to Oregon State Bar grievance committee concerning lawyer's alleged misconduct, in light of that committee's quasi-judicial function).

Despite having analyzed somewhat related issues in the foregoing cases, this court has not decided specifically that defamatory statements made to police before the initiation of criminal proceedings are subject to an absolute privilege. This court did suggest in Ducosin v. Mott, 292 Or 764, 770, 642 P2d 1168 (1982), that an absolute privilege attaches to statements made in certain proceedings even when the proceedings are in an early, investigative phase, and no court or administrative action is yet pending. In Ducosin, the defendant, who was in a dispute with the plaintiff over the proceeds of an inheritance, called the county medical examiner and suggested that the plaintiff possibly had poisoned his own mother, causing her death. An autopsy was performed, and the cause of death was determined to have been natural. The plaintiff then brought an action for defamation against the defendant. This court deemed the defendant's statements to be "cloaked with an absolute privilege," because the communications to a medical examiner regarding a possible homicide were an initial step in a judicial proceeding. Id. at 768.

From a historical perspective, the conclusion in Ducosin that the absolute privilege applied in those circumstances is somewhat surprising, particularly in light of the prevailing common-law rule that statements accusing others of crime were accorded a qualified rather than an absolute privilege. For example, in Smith v. Kerr, 1 Edm Sel Cas 190 (NY Com Pl 1845), aff'd on other grounds 1 Barb 155 (NY 1847), the defendant storekeeper stated to the police his belief that his employee had robbed the store of fifty dollars. The court held that informing the police of a suspicion that plaintiff had committed a robbery was not actionable if the accusation were made in good faith and with probable cause. The court reasoned:

"In the absence of actual malice, and with probable cause, so strong as very much to alarm and agitate the plaintiff at the time, it presents the simple question whether the communication made to the officer was privileged.

"So far as it was essential or even material, to the purposes for which it was made, viz., the detection of the robber, it was privileged, for full scope should be extended to all concerned in the bona fide administration of the criminal law.

"The words spoken were uttered by the defendant in the prosecution of his inquiries for the robber to an officer authorized to search into and make arrests for the offense.

"The purpose was an honest one, and the words were necessary to that purpose. They were uttered in good faith, under a belief of their truth, and with probable cause. They were therefore privileged."

Id. (citations omitted). Other cases from that period were in accord, e.g., Grimes v. Coyle, 6 B Mon 301 (Ky Ct App 1845); Gassett v. Gilbert, 72 Mass (6 Gray) 94, 97 (1856), as was the first treatise written in the United States on the subject of torts, 1 Francis Hilliard, The Law of Torts, 345-46 (3d ed 1866).

The distinction at common law between statements made in court, which carried an absolute privilege, and statements made to the police, which carried a qualified privilege, was based on practical considerations. In court, parties, lawyers, judges, jurors, and witnesses must be free to risk impugning the reputations of others, in order to discharge public duties and protect individual rights. One authority defends the absolute privilege for statements made in court as rooted in sound judicial policy:

"Absolute privilege has been conceded on obvious grounds of public policy to insure freedom of speech where it is essential that freedom of speech should exist. It is essential to the ends of justice that all persons participating in judicial proceedings (to take a typical class for illustration) should enjoy freedom of speech in the discharge of their public duties or in pursuing their rights, without fear of consequences. The purpose of the law is, not to protect malice and malevolence, but to guard persons acting honestly in the discharge of a public function, or in the defense of their rights, from being harassed by action imputing to them dishonesty and malice."

Van Vechten Veeder, Absolute Immunity in Defamation, 9 Colum L Rev 463, 469 (1909) (footnotes omitted).

By contrast, a citizen making an informal statement to police should not enjoy blanket immunity from an action; instead, such statements should receive protection only if they were made in good faith, to discourage an abuse of the privilege. See id. at 480 (informal communication or rumors or suspicions of criminal action only conditionally protected). One case has explained that the public interest justified a qualified privilege for reports of criminal activity, because

"when such communications are made in good faith and confidence, and with an honest view and purpose, to the object and end intimated, and is not made as a pretext to cover over secret malevolence or ill will towards the party spoken of, it is proper that they should be made, and the honest portion of the community should be encouraged rather than restrained from making them, by the terror of legal responsibility."

Grimes, 6 B Mon 305. Recognizing a qualified privilege for informal statements made to the police remains the prevailing common-law rule, although some jurisdictions more recently have adopted an absolute privilege. See Fridovich v. Fridovich, 598 So 2d 65, 67-68 & n 4 (Fla 1992) (surveying case law of various states).

Because Ducosin did not involve informal statements to police officers, we need not decide whether the precise holding in Ducosin is one with which this court would agree today. However, to the extent that the dictum in Ducosin can be read to suggest that such statements are absolutely privileged, it is disavowed. We are satisfied that the prevailing common-law rule -- that informal statements to police made before the initiation of criminal proceedings enjoy only a qualified privilege -- is the appropriate one.

Consistent with the foregoing analysis, the trial court instructed the jury that plaintiff's defamation claim was subject to a qualified privilege. Defendant did not object to the form of that instruction. We presume that the jury, following that instruction, found that defendant had abused the privilege. See State v. Thompson, 328 Or 248, 271, 971 P2d 879 (1999) (jurors are presumed to follow trial court's instructions). Accordingly, there was no error. The Court of Appeals erred in reaching a contrary conclusion.

The decision of the Court of Appeals is reversed. The judgment of the circuit court is affirmed.

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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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