S49362 In re Spencer

SUPREME COURT CASES

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State: Oregon

Docket No: I.FACTS

Case Date: 11/22/2002

Filed: November 22, 2002

IN THE SUPREME COURT OF THE STATE OF OREGON

In re: Complaint as to the Conduct of

MICHAEL L. SPENCER,

Accused.

(OSB 00-49, 00-51; SC S49362)

En Banc

On review of the decision of a trial panel of the Disciplinary Board.

Argued and submitted September 9, 2002.

Michael L. Spencer, Klamath Falls, argued the cause and filed the brief for himself.

Chris Mullmann, Assistant Disciplinary Counsel, Lake Oswego, argued the cause and filed the brief for the Oregon State Bar.

PER CURIAM

The accused is suspended from the practice of law for a period of 60 days, commencing 60 days from the filing of this decision.

PER CURIAM

In this lawyer disciplinary proceeding, the Oregon State Bar (Bar) charged the accused with violating three disciplinary rules of the Code of Professional Responsibility in two different matters. In the Slattum matter, the Bar alleged that the accused violated Code of Professional Responsibility Disciplinary Rule (DR) 1-102(A)(3) (engaging in "conduct involving dishonesty, fraud, deceit or misrepresentation") and DR 7-102(A)(7) (counseling or assisting client in conduct that lawyer knows to be illegal or fraudulent). In the Gibson matter, the Bar alleged that the accused violated DR 9-101(C)(4) (lawyer must return to client property that client is entitled to receive). A trial panel of the Disciplinary Board concluded that the accused had violated only DR 1-102(A)(3) and determined that the appropriate sanction was suspension from the practice of law for 60 days.

The accused has sought review, arguing that his actions did not violate DR 1-102(A)(3). (1) He also argues that, if his actions did constitute such a violation, a 60-day suspension is an excessive sanction. The Bar also has sought review, arguing that the trial panel erred in concluding that the accused did not violate DR 7-102(A)(7) (2) in the Slattum matter and DR 9-101(C)(4) (3) in the Gibson matter.

We review this proceeding de novo, ORS 9.536(3); Bar Rule of Procedure (BR) 10.6, to determine whether the Bar has proved its allegations by clear and convincing evidence. ORS 9.536(1); BR 5.2. For the reasons that follow, we agree with the trial panel that, in the Slattum matter, the accused violated DR 1-102(A)(3) but not DR 7-102(A)(7). We disagree with the trial panel's decision regarding the Gibson matter and conclude that the accused violated DR 9-101(C)(4). We also determine that the appropriate sanction is suspension from the practice of law for 60 days.

I. FACTS

A. Slattum Matter

In 1996, John and Suzanne Slattum were residents of San Diego County, California. In 1995 or early 1996, John Slattum began working as a consultant for Klamath County, Oregon. He divided his time between Oregon and California. While in Oregon, he would rent temporary housing; his wife and children remained in California, and his children attended school there. During that time, the Slattums put up the family home for sale. They expressed an intention to move to Oregon when their house sold. Also in 1996, John Slattum and the accused began a joint business venture, which ultimately failed.

In late 1996, the Slattums purchased a 33-foot motor home and took delivery in Klamath Falls, Oregon. The accused agreed to assist the Slattums in registering their motor home in Oregon. The Slattums filled out a Department of Motor Vehicles (DMV) registration form and gave it to the accused along with a personal check for $250. Both of the Slattums signed the form. The day after taking delivery of the motor home, the Slattums drove it to their home in California. The accused delivered the registration form to Oregon DMV along with his personal check for $216 (the cost of registering the vehicle in Oregon).

On the registration form, the Slattums listed the accused's home address as their mailing address. They left blank the lines on the form for residence address and county of residence, and for county of use they listed "USA." By signing the form, each of the Slattums represented that "[m]y place of domicile (home) is in Oregon, or I am otherwise eligible or required to register the vehicle under Oregon law (ORS 803.200, ORS 803.360)." At approximately the same time, John Slattum obtained an Oregon driver license listing as his address the home address of the accused. At no time did either of the Slattums reside with the accused. By registering the vehicle in Oregon instead of in California, the Slattums saved more than $20,000 in California and San Diego County taxes and fees.

In 1998, the accused and his wife divorced. The accused moved to another residence, and his former wife remained in the family home. In 1996, she had known of the registration of the motor home, which listed as the mailing address the address of the home that she shared with the accused, and she had been concerned about potential criminal liability. In October 1998, the accused's former wife received a DMV registration renewal form for the Slattums' motor home that had been sent to the Slattums at her address. She had been unaware that the motor home was still registered to her home address. She contacted the accused through her divorce lawyer and demanded that he remove her address from the motor home registration. At the trial panel hearing, the accused asserted that, when he received the renewal notice from his former wife, he contacted the Slattums and instructed them to register the vehicle in California. The accused's former wife later learned, however, that the Slattums had renewed the motor home registration in November 1998 and that the form still listed her address. In early 1999, John Slattum changed the addresses on his Oregon driver license and on the motor home registration to the accused's new address. Two years later, John Slattum contacted Oregon DMV and stated that, although he had planned to move to Oregon, those plans had not materialized, and that he would re-register the motor home in California. As of February 1, 2001, the motor home registration still listed the accused's home address as the Slattums' mailing address. The record does not indicate whether anyone changed the address on the registration after that date.

The Bar's complaint alleged that the accused filed the DMV registration form mentioned above on behalf of the Slattums. The complaint also alleged that, at that time, the accused was acting as the Slattums' lawyer. According to the Bar, the accused knowingly assisted the Slattums in registering their vehicle illegally in Oregon. The Bar charged the accused with violating DR 1-102(A)(3) and DR 7-102(A)(7).

When the accused first responded to the Bar's inquiries, he asserted the lawyer-client privilege, refusing to discuss the matter or to cooperate with the Bar's investigation. During the trial panel hearing, however, he asserted that, in 1996, when he delivered the registration form for the motor home, he was not the Slattums' lawyer. The accused argued that he began to serve as John Slattum's lawyer in 1998 and, after that date, he had a duty under DR 4-101 to protect from disclosure all client "secrets," including those that related to the time before he began to act as Slattum's lawyer. (4) In other words, the accused took the position at the hearing that his assertion in 2000 of the lawyer-client privilege as to communications and information related to the 1996 motor home registration was consistent with his claim that he had not been the Slattums' lawyer in 1996, and that he began to serve as a lawyer for John Slattum only in 1998. The accused further argued that the Bar had failed to present any evidence, other than the accused's assertion of the lawyer-client privilege in response to the Bar's inquiries in 2000, of the existence of a lawyer-client relationship in 1996.

The trial panel concluded that the Bar had failed to prove by clear and convincing evidence that the accused was acting as the Slattums' lawyer when he assisted in registering the motor home. Therefore, the trial panel concluded that the accused did not violate DR 7-102(A)(7), which requires a lawyer-client relationship. The trial panel did determine, however, that the accused's conduct involved dishonesty, deceit, and misrepresentation. Therefore, the trial panel concluded that the accused had violated DR 1-102(A)(3), which does not require that a lawyer-client relationship exist.

B. Gibson Matter

In late 1999, Jan Gibson sought representation from the accused concerning a claim that a bankruptcy trustee fraudulently had converted her home following her 1992 bankruptcy. After a conversation with the accused's receptionist, she delivered various documents for the accused's review. She never met or talked with the accused. After skimming Gibson's cover letter, and without examining the documents, the accused decided not to represent Gibson. He gave Gibson's documents to his legal assistant, who notified her of the accused's decision not to represent her. Two or three weeks later, Gibson requested that the accused return the documents to her. The legal assistant returned a few of Gibson's documents and informed her that the rest of the documents had been shredded.

The Bar charged the accused with violating DR 9-101(C)(4) by failing to return to Gibson property to which she was entitled. The trial panel, however, determined that, because Gibson never became a client of the accused, and because DR 9-101(C)(4) applies only to clients, the accused did not violate that rule. The trial panel declined to interpret DR 9-101(C)(4) to apply to prospective clients.

II. DISCUSSION

A. Slattum Matter

On review, the accused argues that the trial panel erred in concluding that he had violated DR 1-102(A)(3) for two reasons. First, the accused contends that the Bar failed to follow BR 4.1(c), which requires that the Bar's formal complaint "set forth succinctly the acts or omissions of the accused * * * so as to enable the accused to know the nature of the charge or charges against the accused." Specifically, the accused argues that the Bar's complaint alleged that he engaged in the conduct described above in his capacity as a lawyer, but failed to allege that he engaged in that conduct as a private individual. (5) Because the trial panel concluded that the accused had not acted as the Slattums' lawyer when he agreed to register their motor home, the accused argues, the trial panel erred in concluding that he committed a violation that the Bar did not allege specifically.

Alternatively, the accused argues that his conduct in registering the Slattums' motor home did not constitute dishonesty, fraud, deceit, or misrepresentation, because one reasonably could argue that the Slattums were entitled to register the motor home in Oregon. ORS 803.200(1) provides that a person is a resident of Oregon for purposes of registering vehicles if, among other things, "the person engages in any gainful employment in [Oregon]." (6) According to the accused, John Slattum was "gainfully employed" in Oregon as a consultant and operated the motor home in question as a mobile office. The accused also argues that the Slattums had represented to him that they intended to move to Oregon permanently and, to that end, were attempting to sell their house in California. Under those circumstances, the accused contends, the Slattums arguably came within the scope of ORS 803.200(1) and, thus, arguably could register their motor home in Oregon.

In response, the Bar argues that the Slattums do not meet any of the criteria for establishing residency set out in ORS 803.200. The Bar points out that ORS 803.200(4) provides, in part:

"Notwithstanding subsection (1) of [ORS 803.200], a person who is gainfully employed in this state shall not be considered a resident of the state if the person has taken no other steps to become a resident."

With respect to that provision, the Bar argues that the accused presented no evidence that John Slattum had taken any steps, other than working on one consulting contract in Oregon, to become a resident of Oregon. The Slattums' alleged desire to become Oregon residents in the future, in the Bar's view, was not a sufficient step. The Bar also argues that the accused has ignored ORS 803.360, which provides that, notwithstanding ORS 803.200, a person domiciled in another state may not register a motor home in Oregon. (7)

We first address the accused's argument that the trial panel erred in concluding that the accused committed a violation that was not alleged in the formal complaint. DR 1-102(A)(3) does not require that an accused be acting as a lawyer at the time of the violation. In re Coe, 302 Or 553, 565, 731 P2d 1028 (1987). In its complaint, the Bar alleged that, "By knowingly assisting the Slattums in registering a motor vehicle in violation of Oregon law, the accused engaged in conduct involving dishonesty, deceit or misrepresentation * * * ." The Bar specifically asserted that the accused's conduct violated both DR 1-102(A)(3) and DR 7-102(A)(7). The complaint thus was sufficient to notify the accused of the allegations against him. It is true that the Bar's additional allegation that the accused acted as a lawyer for the Slattums, an allegation that was necessary to prove a violation of DR 7-102(A)(7), was not necessary to make out a violation of DR 1-102(A)(3). However, the most that may be said of the additional allegation, as it related to the alleged DR 1-102(A)(3) violation, is that it was surplusage and could have been stricken on an appropriate motion. With or without it, however, the alleged violation of DR 1-102(A)(3) was pleaded properly.

We turn to the question whether the accused violated DR 1-102(A)(3) by engaging in conduct involving dishonesty, fraud, deceit, or misrepresentation. The record contains ample evidence indicating that the Slattums were neither domiciled in Oregon nor otherwise eligible to register a motor home in Oregon. John Slattum lived in Oregon only sporadically as necessary to work as a consultant. The evidence at the hearing did not show that Slattum used any Oregon address as a permanent address other than the former and current home addresses of the accused. John Slattum did not live at either of those addresses at any time. We give no weight to John Slattum's Oregon driver license as an indication that he was an Oregon resident because, again, he listed the accused's home address as his own. At most, the evidence suggests that John Slattum intended to become an Oregon resident sometime in the future.

With that evidence in mind, we conclude that the accused's actions in assisting in the registration of the motor home violated DR 1-102(A)(3). Oregon law requires that vehicle registration forms contain the residence address of the registrant. The form that the accused submitted did not contain a residence address. Although listing the accused's home address as the Slattums' mailing address might not be dishonest in and of itself, it was at least misleading when combined with the fact that the form contained no residence address or county of residence. The information both supplied and omitted implied that the Slattums were Oregon residents who were entitled to register the motor home in Oregon. Further, the accused's statements at the trial panel hearing support the conclusion that he knew that his conduct was wrongful:

"I still believe it was wrong. * * * I guess I made some assumptions that [John Slattum] had an arguable issue that he could make, that his domicile was in Oregon even though his wife's wasn't. * * * I'm not saying that doesn't necessarily involve a violation of the rules, but I am saying it doesn't involve the rules of advising a client to engage in that conduct."

"* * * * *

"As far as the actual delivery of the document, as I said in opening, in hindsight, I shouldn't have done that and agree. And, actually, I think that there is enough here that you could find a violation of DR [1-102(A)(3)].

"* * * * *

"My point is that violation was of DR [1-102(A)(3)], which is misconduct. DR 7-102 deals with the relationships with clients, assisting or advising a client to do something. I am not arguing that you cannot find me guilty of DR [1-102(A)(3)]."

Accordingly, we agree with the trial panel that the Bar proved by clear and convincing evidence that the accused violated DR 1-102(A)(3).

We now turn to the Bar's argument that the accused was acting as the Slattums' lawyer during the events in question and, therefore, violated DR 7-102(A)(7) in addition to DR 1-102(A)(3). The Bar notes that, until the trial panel hearing, the accused had refused to respond to the Bar's inquiries about the motor home registration, invoking the lawyer-client privilege. The Bar argues that the invocation of that privilege constitutes an admission that a lawyer-client relationship existed and that the accused should be bound by that admission.

As noted above, the accused replies that he asserted the lawyer-client privilege in response to the Bar's investigation of the motor home registration because his communications with the Slattums, although not those of a lawyer and client when they occurred, constituted "secrets" that he could not divulge under DR 4-101 due to their subsequent lawyer-client relationship.

The issue is whether the accused's assertion of the lawyer-client privilege in 2000, as to communications and information related to a 1996 transaction, provides a sufficient basis to conclude that he was acting as a lawyer for one or both of the Slattums in 1996. We agree with the Bar that the accused's assertion of the lawyer-client privilege is some evidence of the existence of a lawyer-client relationship in 1996, at the time of the communications. Indeed, if the record were devoid of any other evidence on that issue, the accused's assertion of the privilege would have provided a sufficient basis for the trial panel to conclude that the accused was acting as the Slattums' lawyer in 1996.

At the hearing, however, the accused testified that he was not a lawyer for either of the Slattums in 1996. He stated that he asserted the privilege because he believed that his subsequent lawyer-client relationship with John Slattum, in 1998, required him to protect "secrets" that he had learned in 1996 regarding the Slattums' actions then. The accused's interpretation of the lawyer-client privilege is incorrect. A lawyer has a duty to protect client "secrets," a term that is not limited to matters covered by the lawyer-client privilege. See State v. Keenan/Waller, 307 Or 515, 519, 771 P2d 244 (1989) (DR 4-101(A) "does not confine the client's 'secrets' to communications; indeed, they may reach the attorney from someone other than the client"). However, the duty applies only to "information gained in a current or former professional relationship." DR 4-101(A). In the context of the disciplinary rules, "professional relationship" means a lawyer-client relationship. If we accept as true the accused's testimony that he was not acting as the Slattums' lawyer in 1996, the information that he obtained then regarding the motor home registration cannot be a "secret" that the accused had a duty to protect. The accused's assertion of the lawyer-client privilege in response to the Bar's inquiries about the Slattum matter finds no support either in the text of the rule itself or in this court's cases. However, that conclusion does not end the inquiry in this case.

The Bar presented no evidence, other than the accused's assertion in 2000 of the lawyer-client privilege, that the accused was acting as the Slattums' lawyer when he assisted them in registering the vehicle in Oregon in 1996. As noted above, there was no basis for that assertion. Moreover, there is other evidence in the record regarding the motor home registration, all of which suggests that the accused was not acting as the Slattums' lawyer in connection with that transaction. For example, John Slattum wrote a check to the accused for the filing fees; the accused deposited that check in his personal account and then wrote a check to DMV from that account, rather than using his business account. The accused's testimony that he was not acting as the Slattums' lawyer in 1996 is consistent with the other evidence in the record. For those reasons, we agree with the trial panel that the Bar failed to prove by clear and convincing evidence that the accused violated DR 7-102(A)(7).

B. Gibson Matter

The Bar argues that the trial panel erred in concluding that the accused did not violate DR 9-101(C)(4) because that rule, according to the Bar, should be interpreted to apply both to clients and to prospective clients. The Bar relies on Rule 503 of the Oregon Evidence Code, (8) which deals with the lawyer-client privilege. That rule identifies those persons who may invoke the lawyer-client privilege and specifically includes persons who consult a lawyer "with a view to obtaining professional legal services from the lawyer." The Bar argues that, if this court does not interpret DR 9-101(C)(4) similarly to apply to such prospective clients, lawyers will have no ethical duty to return the property of persons whom they have decided not to represent. That result, in the Bar's view, is not equitable or desirable.

DR 9-101(C)(4) provides that a lawyer must "[p]romptly pay or deliver to a client as requested by the client the funds, securities or other properties in the possession of the lawyer which the client is entitled to receive." (Emphasis added.) In this case, the "properties" were the documents Gibson had left with the accused to assist him in determining whether to represent Gibson. The accused argued, and the trial panel agreed, that the accused did not violate DR 9-101(C)(4) when his legal assistant shredded the documents because that rule applies only to the "funds, securities or other properties" of a "client," and Gibson merely was a "prospective" client. To find a violation of the rule here, the accused asserts, this court would have to rewrite DR 9-101(C)(4) to insert the word "prospective."

We disagree. When a person delivers "funds, securities or other properties" to a lawyer who is considering whether to represent that person, the person has entrusted those materials to the lawyer as a lawyer and, as such, is as much entitled to be considered a "client" for that limited purpose as if the person had made a confidential, verbal communication to the lawyer. In the latter case, the confidential communication is protected by the lawyer-client privilege because, as noted above, the Oregon Evidence Code defines "client," for purposes of the lawyer-client privilege, to include, among others, a person "who consults a lawyer with a view to obtaining professional legal services from the lawyer." OEC 503(1)(a). Although the legislature's definition of "client" in OEC 503 does not control our interpretation of that word as it is used in DR 9-101(C)(4), we agree with the Bar that it is helpful in interpreting that disciplinary rule and that the proper application of DR 9-101(C)(4) requires that it apply to one who consults with a lawyer with a view to obtaining professional services from the lawyer, as Gibson did here.

That conclusion is consistent with other cases holding that whether a "putative client intended that the [lawyer-client] relationship be created" is evidence of the existence of such a relationship. In re Weidner, 310 Or 757, 768, 801 P2d 828 (1990); see also The Ethical Oregon Lawyer

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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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