S49340 State v. Sims

SUPREME COURT CASES

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State: Oregon

Docket No: CC97CR1061MA

Case Date: 04/03/2003

Filed: April 3, 2003

IN THE SUPREME COURT OF THE STATE OF OREGON

STATE OF OREGON,

Petitioner on Review,

MICHAEL WARNER SIMS,

Respondent on Review,

(CC 97CR1061MA; CA A104178; SC S49340)

On review from the Court of Appeals.*

Argued and submitted January 10, 2003.

Rolf C. Moan, Assistant Attorney General, Salem, argued the cause for petitioner on review. With him on the petition for review were Hardy Myers, Attorney General, and Michael D. Reynolds, Solicitor General. With him on the brief on the merits were Hardy Myers, Attorney General, and Mary H. Williams, Solicitor General.

Dan Maloney, Deputy Public Defender, Salem, argued the cause for respondent on review. With him on the brief was David E. Groom, Acting Executive Director, Office of Public Defense Services.

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

DE MUNIZ, J.

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

*Appeal from Deschutes County Circuit Court, Michael A. Adler, Judge. 176 Or App 484, 31 P3d 1129 (2001).

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

DE MUNIZ, J.

The issue in this felony Driving While Revoked (DWR) case is whether defendant can attack collaterally the validity of a ten-year-old administrative order revoking his driver license. Defendant raised the issue by moving to dismiss the DWR charge and by moving to exclude evidence of that order at his trial on the DWR charge. The trial court denied those motions, concluding that defendant could not attack the order collaterally because he had failed to challenge it in the ten years that the order had been in effect. The Court of Appeals, however, reversed and remanded the case on the ground that that court's prior holdings expressly allowed that kind of collateral attack on an underlying administrative order. State v. Sims, 176 Or App 484, 31 P3d 1129 (2001). We allowed review and now reverse the decision of the Court of Appeals.

In 1988, the Motor Vehicles Division (MVD) classified defendant as a Habitual Traffic Offender (HTO) under ORS 809.600 (1987), because MVD determined that defendant had been convicted of three or more major traffic offenses in a five-year period. In accordance with that statute, MVD entered an order revoking defendant's driver license.

Nearly ten years later -- in 1997 -- defendant was arrested under ORS 813.010 (1997) for driving under the influence of intoxicants (DUII). Defendant, however, never had challenged his earlier HTO revocation order; neither had he properly sought restoration of his driving privileges under the appropriate statutes. Thus, his driver license had remained revoked over the preceding decade and, as a result, defendant also was charged with felony DWR under ORS 811.182(3) (1997).

Before trial, defendant moved to dismiss the DWR charge and to exclude evidence of his HTO revocation order. He argued that his certified driving record showed that he had been convicted of only two major traffic offenses before the effective date of the 1988 order. The statute, however, required three convictions. The state opposed defendant's motions, arguing that MVD's computerized records went back only ten years. As a result, the state noted, defendant's driving record was incomplete; it did not encompass three of the five years upon which the revocation order was based. The state also argued that, in any event, defendant had received proper notice that his license had been revoked as a Habitual Traffic Offender and that he never had contested that revocation. The trial court denied defendant's motions. Defendant subsequently stipulated that MVD had revoked his driving privileges before his arrest, and a jury convicted him of felony DWR.

Defendant appealed, assigning error to the denial of his motions to dismiss and to exclude evidence. In the Court of Appeals, defendant argued that he could attack the validity of the HTO revocation order collaterally and that his driving record did not contain the requisite convictions to support the order. Sims, 176 Or App at 488. The Court of Appeals agreed. Citing several of its past decisions, that court concluded:

"Defendant is correct that he may contest the validity of the HTO order in this criminal proceeding. We have previously held that a defendant can attack the convictions underlying an HTO order in a prosecution for felony driving while revoked. See, e.g., State v. Fritz, 85 Or App 1, 4, 735 P2d 1228, rev den 303 Or 700 (1987); State v. Hardt, 81 Or App 607, 726 P2d 953, adhered to on recons 83 Or App 221, 730 P2d 1278 (1986), rev den 303 Or 74 (1987). As we recently explained in State v. Riddell, 172 Or App 675, 21 P3d 128, rev den 332 Or 430 (2001), nonjury administrative decisions seldom will have a preclusive effect on subsequent criminal proceedings. Because the fundamental issue here does not substantively differ from that in Fritz and Hardt, defendant may contest the validity of the HTO order in this criminal proceeding."

Id. at 489. The Court of Appeals remanded the case to the trial court to determine the validity of defendant's HTO revocation order. Id. This court, in turn, allowed review to consider whether the HTO revocation order indeed is susceptible to collateral attack.

We begin our analysis by examining the text and context of ORS 811.182 (1997), the statute that criminalized defendant's driving with a revoked driver license. In doing so, our purpose is to discern the intent of the legislature in enacting the statute. See PGE v. Bureau of Labor and Industries, 317 Or 606, 610-12, 859 P2d 1143 (1993) (outlining this court's statutory construction methodology). Under the PGE framework, words of common usage are given their "plain, natural, and ordinary meaning." Id. at 611. If the intent is clear from the text and context of the statute, then further analysis is unnecessary. Id. ORS 811.182 (1997) provided, (1) in part:

"(1) A person commits the offense of criminal driving while suspended or revoked if the person violates ORS 811.175[ (2)] and the suspension or revocation is one described in this section * * *.

"* * * * *

"(3) The crime is a Class C felony if the suspension or revocation resulted from any of the following:

"(a) Habitual offender status under ORS 809.640." (3)

The text of ORS 811.182 (1997) does not require the state, in prosecuting a charge of felony DWR, to consider, much less prove, the validity of defendant's HTO revocation order. (4)

Nor does it provide defendant with an affirmative defense based on proof of the order's invalidity. Instead, the statute requires the state to prove only that (1) MVD had revoked defendant's license based on his HTO status; and (2) defendant drove a motor vehicle when the revocation order was in effect.

Based on the text of ORS 811.182 (1987), it appears that the legislature intended to criminalize the violation of an HTO revocation order without requiring the state to revisit the convictions underlying that order. (5) The Court of Appeals' contrary decision, however, appears to be premised on the case law that, over the years, has interpreted the various statutes authorizing driver license suspensions and revocations. In particular, the parties dispute the legal effect of this court's decision in State v. Tooley, 297 Or 602, 687 P2d 1068 (1984). (6) We turn to that question.

In Tooley, the defendant's driver license was erroneously revoked. In its revocation notice to the defendant, MVD informed him that he was not permitted to drive until MVD reinstated his license. 297 Or at 604-05. That notice, however, incorrectly communicated to the defendant that his license revocation would become effective regardless of whether he requested a hearing and would remain in effect unless and until he prevailed in such an endeavor. Id. at 609. Shortly thereafter, the defendant was stopped while driving and was charged with, and convicted of, DWR. Id. at 605.

On review, the state argued that the defendant was bound to obey the license revocation until otherwise notified by MVD. Id. at 605. This court disagreed, concluding that "defendant was never adequately informed of his right to contest the hearing before the revocation went into effect." Id. at 609. This court went on to conclude that, because defendant had not received adequate notice of his statutory right to a prerevocation hearing, the revocation was erroneous and defendant's operation of a motor vehicle was not unlawful. Accordingly, this court reversed the defendant's DWR conviction.

This court's holding in Tooley is a limited one and does not provide support for the kind of collateral attack on the HTO revocation order that defendant seeks in this case. That is so because, unlike the defendant in Tooley, defendant here does not argue that the notice of his license revocation was defective or that he was denied a prerevocation hearing.

To reiterate, Tooley does not authorize, in every case, a collateral attack on the administrative order underlying a criminal prosecution from driving with a suspended or revoked driver license. A criminal defendant's ability to attack collaterally the validity of an underlying suspension or revocation order must arise from the legislature's intent to permit such an attack.

Here, we conclude that the legislature intended only that the state prove that MVD had revoked defendant's license and that defendant drove a motor vehicle when the revocation order was in effect. The legislature did not intend to permit a defendant to attack the HTO revocation order collaterally in a prosecution for DWR under ORS 811.182 (1997).

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

1. The current version of ORS 811.182 is similar to ORS 811.182 (1997), except that a violation based on an HTO-related revocation is now a Class A misdemeanor. ORS 811.182(4)(f) (2001).

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2. ORS 811.175 (1997) provided, in part:

"(1) A person commits the offense of infraction driving while suspended or revoked if the person does any of the following:

"(a) Drives a motor vehicle upon a highway during a period when the person's driving privileges * * * have been suspended or revoked in this state by a court or by the Department of Transportation."

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3. In 1988, when MVD concluded that defendant was a Habitual Traffic Offender and revoked his driver license, ORS 809.640(1) and (2) (1987) provided:

"(1) When the division determines from the driving record of a person as maintained by the division that a person's driving privileges are required to be revoked as a habitual offender under ORS 809.600, the division shall do the following:

"(a) Revoke the driving privileges of the person.

"(b) Notify the person, as provided under ORS 809.620, of the revocation and of this person's right to a hearing as provided under this section.

"(2) If the person makes a request for a hearing within the time required under ORS 809.620, the division shall stay the effective date of the revocation under this section."

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4. It is important to note that, by the time that defendant was charged with DWR, Oregon statutes had afforded him the opportunity for at least three evidentiary hearings in which the state had the burden of proving every element of a major motor vehicle-related offense. ORS 809.600 (1987). The statutes also had given him an administrative opportunity to challenge any convictions erroneously attributed to him. Specifically, the statute afforded him a contested case hearing in which the state was required to prove that (1) the driving record at issue was indeed defendant's; (2) the convictions on the record were indeed defendant's; and (3) defendant had received proper notice of the revocation proceedings. See ORS 809.640 (1987) (setting out those provisions). The statutes also gave defendant the right to challenge that administrative outcome in the Court of Appeals. See ORS 183.482 (1987) (providing for Court of Appeals review).

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5. Defendant maintains that the state did not preserve that argument for review in this court. Before the Court of Appeals, the state argued that defendant could not attack collaterally the basis for the HTO revocation because defendant had been provided the required notice and did not pursue an administrative appeal of the order revoking his license. On review, the state argues that defendant cannot attack collaterally the HTO revocation because the state proved the elements of the crime and defendant no longer has any procedural method for attacking the underlying administrative order that revoked his license. We conclude that the two arguments are sufficiently related such that the state preserved the issue for review. See Tarwater v. Cupp, 304 Or 639, 644 n 5, 748 P2d 125 (1988) (petitioner cannot argue or raise issue that was not before Court of Appeals).

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6. Tooley was not cited in the Court of Appeals decision below. It was, however, interpreted by that court in State v. Hardt, 81 Or App 607, 726 P2d 953, adhered to on recons, 83 Or App 221, 730 P2d 1278 (1986), rev den 303 Or 74, 734 P2d 354 (1987), to allow a defendant to attack his HTO revocation order collaterally in a subsequent criminal proceeding. As a result, the Court of Appeals decisions that since have flowed from Hardt - including the one at issue here -- have, wittingly or not, relied on Tooley as their primary source.

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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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