S48771 Lehman v. Bradbury

SUPREME COURT CASES

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State: Oregon

Docket No: CC01-C14353

Case Date: 09/26/2002

Filed: September 26, 2002

IN THE SUPREME COURT OF THE STATE OF OREGON

MIKE LEHMAN,
BILL MARKHAM, RONALD K. CULBERTSON,
and GILES E. PARKER,

Plaintiffs-Respondents,

BILL BRADBURY,
Secretary of State for the State of Oregon,

Defendant-Appellant,

and

FRANK EIZENZIMMER,
OREGONIANS FOR FAIR TERM LIMITS,
and U.S. TERM LIMITS,

Intervenors-Appellants.

(CC 01-C14353; SC S48771)

En Banc

On plaintiffs-respondents' petition for attorney fees filed February 12, 2002.

Charles F. Hinkle, of Stoel Rives LLP, Portland, filed the petition for attorney fees for plaintiffs-respondents.

Kelly W. G. Clark and Ross Day, of O'Donnell & Clark, LLP, Portland, filed the response to petition for intervenors-appellants.

No appearance for defendant-appellant.

GILLETTE, J.

Plaintiffs-respondents' petition for an award of attorney fees on appeal of $35,532 is allowed against defendant-appellant and denied against intervenors-appellants.

GILLETTE, J.

In Lehman v. Bradbury, 333 Or 231, 233, 37 P3d 989 (2002), plaintiffs -- two former state representatives and two voters, one from each of the former representatives' districts -- brought an action under the Uniform Declaratory Judgments Act, and ORS 246.910(1) challenging the validity of Ballot Measure 3 (1992), the "Term Limits Initiative." Plaintiffs prevailed and now seek a joint and several award of $35,532 in appellate attorney fees against defendant and intervenors. Intervenors, but not defendant, filed objections. For the reasons set out below, we conclude that plaintiffs are entitled to an award of appellate attorney fees against defendant only.

No statute or contract authorizes an award of attorney fees to plaintiffs under the facts of this case. Instead of such authority, plaintiffs rely on this court's inherent power, as a court of equity, to award attorney fees on appeal in appropriate cases. See Deras v. Myers, 272 Or 47, 535 P2d 541 (1975) (explaining and exercising that authority). Plaintiffs argue that, like the plaintiff in Deras, they are entitled to such an award because, as described in the Deras opinion, they brought their action "in a representative capacity" and "succeed[ed] in protecting the rights of others as much as [their] own." Id. at 66. Plaintiffs also assert that they meet all the prerequisites for that type of an attorney-fees award, as this court described those prerequisites in Armatta v. Kitzhaber, 327 Or 250, 287-88, 959 P2d 49 (1998), (1) because plaintiffs were the prevailing parties in a proceeding in equity in which they sought to "vindicate an important constitutional right applying to all citizens without any gain peculiar to" themselves, namely, the integrity of the Oregon constitutional amendment and initiative processes. Finally, plaintiffs argue that, given intervenors' vigorous opposition to plaintiffs' arguments on the merits, general principles of equity require that intervenors, in addition to defendant, be liable for any attorney-fees award. In making that argument, plaintiffs rely in part on Holm and Holm, 323 Or 581, 919 P2d 1164 (1996), in which this court held that a party who voluntarily intervenes in a marital dissolution case becomes potentially liable for an award of attorney fees under ORS 107.105(5). (2)

We note at the outset that plaintiffs' petition for attorney fees comports with the requirements of Oregon Rule of Appellate Procedure 13.10(5), in that plaintiffs have stated the total amount of attorney fees claimed and the pertinent authority on which they rely for making the claim. See ORAP 13.10(5)(a) (stating that requirement). In such cases, we generally limit our inquiry to the objections, if any, filed by the opposing party. See Kahn v. Canfield, 330 Or 10, 13-14, 998 P2d 651 (2000) (so stating). We so limit our inquiry because we are "loath to undertake a wide-ranging, independent review * * *, inasmuch as any questions or doubts that we might have might not be shared by the objecting party." Dockins v. State Farm Ins. Co., 330 Or 1, 9, 997 P2d 859 (2000).

In this case, defendant has not filed objections. Rule 13.10(9) provides, with respect to such cases:

"In the absence of timely filed objections to a petition under this rule, the Supreme Court * * * will allow attorney fees in the amount sought in the petition, except in cases in which:

"(a) the entity from whom fees are sought was not a party to the proceeding; or

"(b) when the Supreme Court * * * is without authority to award fees."

The lack of objection by defendant places this court in the position of being asked to exercise its equitable powers without the benefit of advocacy from both sides respecting whether to do so. It is arguable that, given the lack of objections, Rule 13.10(9) commits this court to award the requested fees against defendant without further consideration. However, because of the extraordinary nature of the power that we exercise in Deras-type cases, we believe that we should examine plaintiffs' petition for fees sufficiently to satisfy ourselves that there is at least a prima facie justification for exercising our equitable power before we exercise our "authority" as that term is used in Rule 13.10(9). We have done so and conclude that plaintiffs have made that showing: The proceeding was one in equity; the parties who request attorney fees prevailed; those prevailing parties vindicated an important constitutional right applying to all citizens, and at least two of them did not gain something peculiar to themselves. See Armatta, 327 Or at 287-88 (setting out those criteria). In addition, plaintiffs' request for an award of attorney fees comports with the applicable rules. See Kahn, 330 Or at 13-14 (setting that criterion). Therefore, we award plaintiffs the sum of $35,532 against defendant as reasonable attorney fees on appeal.

The remaining question is whether the court should make a joint and several award of attorney fees against intervenors. As noted, plaintiffs argue that it would be "equitable" to award attorney fees against intervenors and not just against defendant. Plaintiffs' theory is that, if they are entitled to an award of attorney fees against any party, then that award should run against all opposing parties whose arguments caused plaintiffs' counsel to expend time and effort. Intervenors respond that a court of equity never should exercise its power to award attorney fees against an intervening private party, because that would discourage the public from intervening in public litigation and, thus, would be contrary to the rationale for such awards that the court stated in Deras and Armatta.

To determine whether we should award attorney fees against an intervening party in a particular case, this court first considers the source of its authority to award attorney fees against any party. If the authority to award attorney fees flows from a statute, then the court must determine the scope of the legislature's intent respecting such awards and carry out that intent. That is the exercise in which this court engaged in Holm when it interpreted ORS 107.105(5), a statute governing attorney fees in appeals from orders in actions for dissolution of marriage. The court concluded that the legislature did not intend to exclude intervening parties from among those parties against whom the court could award attorney fees. Holm, 323 Or at 587. Because the petition for attorney fees before us does not concern a statutory award of fees, Holm is not in point. By analogy, however, when the source of this court's authority to award attorney fees flows not from a statute, but from the court's inherent power as a court of equity, the court should look to the equitable principles that support such awards to determine against which party the court should award attorney fees.

In Deras, this court awarded attorney fees to a plaintiff who successfully challenged, on constitutional grounds, two statutes limiting the amounts that could be spent on certain campaigns. The plaintiff, at the time he filed his suit, was a candidate for state representative; the defendant was the Secretary of State. Plaintiff had lost his election bid by the time that his case reached this court. In discussing its decision to award attorney fees to the plaintiff, this court noted, first, that courts of equity have the power to award attorney fees. 272 Or at 65-66. The court explained that courts frequently exercise that power in cases in which the successful plaintiff brings an action in a representative capacity and protects others' rights in addition to the plaintiff's own. Id. at 66.

The court then turned to its own case law and observed that it had exercised such a power to award attorney fees to the plaintiffs in Gilbert v. Hoisting & Port. Engrs., 237 Or 130, 384 P2d 136, cert den, 376 US 963 (1964). The plaintiffs in that case had "sued the union of which they were members to require fair and democratic elections." Deras, 272 Or at 66. This court explained that an award of attorney fees had been justified in Gilbert because

"'[t]he preservation of the democratic process in the functioning of unions is a matter of primary concern, not only to union members but to the public as well. Those members of the union who in good faith seek to preserve the internal democracy of their union should not have to bear the expense of the successful suit.'"

Deras, 272 Or at 66, quoting Gilbert at 138. Finally, turning to the case before it, the court explained:

"It is beyond dispute that the interest of the public in preservation of the individual liberties guaranteed against governmental infringement of the constitution is even stronger in the present case than that present in Gilbert. Correspondingly, plaintiff in this case, at least as much as the plaintiffs in Gilbert, should not be required to bear the entire cost of this litigation[,] the benefits of which flow equally to all members of the public."

Deras, 272 Or at 66 (emphasis added).

Because the dispute in Deras involved only two parties, the court's decision to award attorney fees to the plaintiff did not require the court to discuss its reasons for awarding those attorney fees against a particular defendant (or an intervenor). Indeed, this is the first case in which this court has been called on to decide who pays, rather than who receives, attorney fees under a Deras rationale. Nevertheless, the emphasized passage from Deras shows that the court's focus was on who had benefitted from the plaintiff's efforts. That is, the court's decision to award attorney fees against the Secretary of State was a means of shifting the cost of the litigation from the plaintiff alone to the public generally, because the public generally had benefitted from the plaintiff's successful efforts to vindicate constitutional principles. (3) See also Armatta, 327 Or at 289 (shift of cost of litigation from prevailing plaintiffs alone to public at large justified because "[p]laintiffs * * * sought to benefit all Oregonians, because they sought to defend the integrity of the amendment and initiative processes"). That focus helps in deciding who should pay an award of attorney fees.

We think that a fair summary of our case law is that, when this court chooses to exercise its inherent power to award attorney fees, it does so against the group that ultimately benefits from the prevailing plaintiffs' efforts -- usually, as in this case, the people of Oregon. And, that summary illustrates why intervenors should not be required to pay: They are not a separate group that benefits from plaintiffs' success. There being no benefit to them, apart from the benefit that they receive equally with all Oregonians -- a benefit they would prefer to have done without, it would not be equitable to require them to pay attorney fees. We therefore sustain their objection to plaintiffs' petition.

Plaintiffs-respondents' petition for an award of attorney fees on appeal of $35,532 is allowed against defendant-appellant and denied against intervenors-appellants.

1. In Armatta, this court affirmed the trial court's award of attorney fees to the plaintiffs who successfully challenged Ballot Measure 40 (1996), a "crimes victims' rights" initiative, on constitutional grounds.

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2. By their interventions, intervenors-appellants became a party.

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3. This court's decision in Gilbert used a similar approach. The plaintiff union members successfully sought to make their union's election procedures fair and democratic. By awarding fees against the union of which the plaintiffs were members, this court shifted the cost of the litigation from the plaintiffs alone to the entire group of persons -- the union -- that directly would benefit from the plaintiffs' efforts.

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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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