S49593 Abrams v. General Star Indemnity Co.

SUPREME COURT CASES

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State: Oregon

Court: Court of Appeals

Docket No: none

Case Date: 05/01/2003

Filed: May 1, 2003

IN THE SUPREME COURT OF THE STATE OF OREGON

STUART ABRAMS
and ABRAMS, INC.,

Plaintiffs,

GENERAL STAR INDEMNITY COMPANY,

Defendant.

(CV 99-00769-DCA; SC S49593)

On certified question from United States Court of Appeals for the Ninth Circuit Order dated July 8, 2002; certification accepted July 23, 2002.

Honorable Stephen Trott and Honorable T.G. Nelson, United States Circuit Court Judges; and Honorable John S. Rhoades, Senior United States District Court Judge.

Argued and submitted March 10, 2003.

Michael H. Bloom, of Bloom & Schuckman, P.C., Portland, argued the cause and filed the brief for plaintiffs.

Lisa E. Lear, of Bullivant Houser Bailey, P.C., Portland, argued the cause and filed the brief for defendant. With her on the brief were Douglas G. Houser and Margaret M. Van Valkenburg.

Thomas M. Christ, of Cosgrave Vergeer Kester, LLP, Portland, filed the brief for amici curiae Mutual of Enumclaw Insurance Company, Farmers Insurance Company, Safeco Insurance Company, and Liberty Northwest Insurance Company.

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

BALMER, J.

Certified question answered.

BALMER, J.

This court accepted certification of the following question of law from the United States Court of Appeals for the Ninth Circuit (Ninth Circuit):

"Does an insurer have a duty to defend an insured under an insurance policy with an 'intentional acts' exclusion if the complaint against the insured alleges a subjective intent to harm but the claim could be proven through unintentional conduct?"

See ORS 28.200 to 28.255 (describing certified question process); ORAP 12.20 (prescribing procedures for consideration of certified questions). We answer that question in the affirmative, for the reasons that follow.

We begin with the information that the Ninth Circuit provided about the underlying federal civil action. Southern Pacific Railway (Southern Pacific) possessed a number of rail van trailers that it leased to third parties on behalf of the owners of the trailers. An individual who worked for Southern Pacific, but who did not have authority to sell the trailers, sold some rail van trailers to Stuart Abrams and Abrams, Inc. (Abrams), the plaintiffs in this case, and kept the money. Abrams then sold many of the trailers to Beall Transport Equipment Company (Beall).

Once Southern Pacific discovered the theft of the trailers, it seized most of them from Beall. Beall then brought an action in state court against Southern Pacific, alleging conversion. Southern Pacific filed a third-party complaint against Abrams, alleging conversion. Abrams also brought an action in state court against Southern Pacific, alleging conversion, and Southern Pacific counterclaimed in that action for conversion. The two actions were consolidated for trial, and the trial court entered judgment against Abrams. (1)

At the time of the alleged conversion, Abrams was insured by General Star Indemnity Company (General Star). According to the Ninth Circuit, the insurance policy required General Star "to defend Abrams in any suit alleging property damage caused by Abrams" and "excluded coverage for any damage that the insured intended to cause." Abrams had tendered Southern Pacific's third-party complaint and counterclaim (the complaints) to General Star, but General Star had refused to defend. After General Star rejected Abrams's tender, Abrams brought an action in state court against General Star for failing to defend and indemnify. General Star removed the action to federal district court, invoking that court's diversity jurisdiction.

General Star moved for summary judgment, arguing that it did not have a duty to defend Abrams because the complaints alleged that Abrams had acted with the subjective intent to cause harm and, thus, Abrams's conduct fell under the intentional-acts exclusion of the insurance policy. See, e.g., Allstate Ins. Co. v. Stone, 319 Or 275, 278, 876 P2d 313 (1994) (exclusion for intentionally caused injury applies when insured intended to cause not just event that resulted in injury, but injury or harm itself). The district court agreed and entered judgment in General Star's favor. Abrams appealed, and the Ninth Circuit reversed in an unpublished memorandum opinion. On General Star's petition for rehearing, the Ninth Circuit withdrew its memorandum disposition and certified the duty-to-defend question to this court.

In its order certifying the question, the Ninth Circuit stated that Southern Pacific's complaints against Abrams stated claims for conversion and that conversion was a covered claim under the General Star insurance policy. In addition, the Ninth Circuit noted that the factual allegations of the complaints also included allegations that Abrams had acted with the subjective intent to cause harm. We have reviewed the complaints against Abrams and the relevant provisions of the insurance policy, and agree with the Ninth Circuit's conclusions. As noted above, under this court's cases, an insurance policy with an intentional-acts exclusion does not provide coverage for acts done with the subjective intent to cause harm. Abrams argues that, because the complaints state claims for conversion, General Star has a duty to defend, regardless of the allegations that, in committing the conversion, Abrams had acted intentionally. General Star responds that, because the complaints allege that Abrams had acted with the subjective intent to cause harm, General Star does not have a duty to defend.

Before answering the certified question, we address a threshold issue raised by amici curiae. (2) Amici argue that this court cannot answer the question as phrased because the question is so abstract that any answer that we offer will not be meaningful. The answer to any duty-to-defend question, they point out, depends on the specific wording of the insurance policy at issue. For that reason, they ask this court to rephrase the certified question to refer specifically to the wording of the duty-to-defend provision and to the "intended acts" exclusion of the General Star insurance policy. (3)

We agree with amici that whether a duty to defend exists in a particular case first depends on the specific wording of the specific insurance policy involved. As this court explained in Marleau v. Truck Insurance Exchange, 333 Or 82, 89, 37 P3d 148 (2001) (citing Ledford v. Gutoski, 319 Or 397, 399, 877 P2d 80 (1994)), in answering a duty-to-defend question, "we must examine two documents: the insurance policy and [the] complaint." In certifying to this court the question set out at the beginning of this opinion, the Ninth Circuit stated its conclusions that the Southern Pacific complaints against Abrams stated claims that were covered by the policy that General Star had issued to Abrams and that the complaints also included allegations of intentional conduct that were excluded by that policy. Indeed, the Ninth Circuit's conclusion that the complaints against Abrams stated a claim for conduct that was covered by the General Star policy provided the foundation on which that court posed the legal question to this court regarding the duty to defend under Oregon law. As noted, our review of the specific complaints and the policy provisions leads us to the same conclusion. Understood in context, therefore, the certified question is sufficiently concrete to be answered: Given that the complaints state a claim for covered conduct, does the fact that the complaints also include allegations of excluded conduct defeat the duty to defend?

We begin, as the parties do, with this court's decision in Marleau. In that case, the insurance policy covered "personal injury liability" and imposed on the insurer the duty to defend any action against the insured seeking damages for personal injury. The personal injury coverage included coverage for defamation, libel, and invasion of privacy, but excluded coverage for "personal injury * * * arising out of oral or written publication of material, if done by or at the direction of the insured with knowledge of its falsity." 333 Or at 86. When a third party brought an action against the insured, alleging, among other claims, intentional infliction of emotional distress based on statements made by the insured, the insured tendered defense of the action to the insurer. One year after the tender, the insurer accepted the defense under a reservation of right to deny coverage. After settling the personal injury action, the insured brought an action against the insurer to recover costs associated with the first year of the litigation.

On review, the insured made the same argument that Abrams makes in this case, namely, that an insurer has a duty to defend if the allegations in the complaint, without amendment, state facts sufficient to constitute a claim for conduct that the policy covers, even if the complaint does not state those facts separately from facts that constitute a claim for excluded conduct. The insurer accepted that proposition but argued that, if the complaint required any amendment, even an amendment as to form, then the complaint did not, "without amendment," impose liability for a covered offense and no duty to defend existed. This court rejected the insurer's argument, emphasizing that a complaint need not plead a claim in perfect form to provide notice to the insurer and that that notice to the insurer provided the rationale undergirding the "without amendment" standard. Id. at 90-91. This court explained that an insurer has a duty to defend if allegations in a complaint, even if identified as a single claim for relief, in fact state more than one claim for relief, at least one of which is for conduct covered by the policy. (4) Id. at 91.

Despite this court's explanation in Marleau that an insurer has a duty to defend if the complaint against the insured states a claim for covered conduct, General Star argues that it nevertheless has no duty to defend in this case because the complaint, although stating a claim for conversion, includes allegations that Abrams had converted the property with the intent to cause harm to Southern Pacific. As authority for that argument, General Star relies on the following passage from this court's opinion in Ledford:

"Because the complaint alleged only that [the insured] subjectively intended to harm or injure [the plaintiff], it is irrelevant whether or not a claim for malicious prosecution could, in theory, be sustained where the [insured] did not have a subjective intent to cause harm * * *. The * * * complaint alleged only conduct that clearly falls outside the coverage of the policy. Therefore, [the insurer] had no duty to defend the malicious prosecution action."

319 Or at 402-03. Although that passage, standing alone, appears to provide support for General Star's argument, it does not lend the same support when read in the context of the complaint that was then before the court, as explained below.

The insured in Ledford had been sued for malicious prosecution. The complaint specifically alleged that the insured "willfully and maliciously" had instituted a prosecution with the intent to "harass, annoy, harm and cause expense to" the plaintiff in that action. The insurer had refused the tender of the defense, citing the insurance policy's intended-acts exclusion. 319 Or at 401. After settling the malicious prosecution action, the insured brought an action against his insurer for defense costs and indemnity. This court affirmed the trial court's summary judgment in favor of the insurer, relying on Ferguson v. Birmingham Fire Ins., 254 Or 496, 460 P2d 342 (1969). In Ferguson, this court held that the insurer had the duty to defend the insured against a complaint of willful trespass because the plaintiff could have recovered for "innocent trespass" without amending the complaint. 254 Or at 507. The court in Ferguson used the analogy to criminal law and explained that, in such circumstances, the insurer has a duty to defend because the allegations of intentional conduct contain a "lesser included" tort that is covered under the insurance policy. In Ledford, this court applied the Ferguson standard and concluded that the complaint then before it, unlike the complaint in Ferguson, would not, without amendment, have permitted proof of any covered offense. Accordingly, the court concluded that the insurer did not have a duty to defend. Ledford, 319 Or at 403.

That is the context in which this court offered the statement, set out above, on which General Star relies here. Therefore, read in conjunction with this court's holding in Ferguson, the court's statement in Ledford that there is no duty to defend if the complaint "alleges only that [the insured] subjectively intended to cause harm" does not mean that the inclusion of such allegations always defeats the duty to defend. Instead, it means that, when the allegations in the complaint state a claim for excluded conduct only, as was true of the complaint for malicious prosecution then before the court, there is no duty to defend. Indeed, Ledford made that distinction clear at a later point in the opinion:

"The subjective intent of the defendant is an element of malicious prosecution. That is not the case with respect to some other intentional torts * * * as to which this court has concluded that the inference of an intent to cause harm does not apply. Those other intentional torts have 'lesser included torts,' such as negligence, under which liability may be imposed for similar conduct without any subjective intent to cause harm."

319 Or at 405.

Read together, therefore, Ferguson and Ledford suggest the following approach for answering any duty-to-defend question when the complaint contains allegations of conduct that are excluded under the insurance policy. First, the court must determine whether the complaint contains allegations of covered conduct. If it does, as the trespass complaint did in Ferguson, then the insurer has a duty to defend, even if the complaint also includes allegations of excluded conduct. If the complaint does not contain allegations of covered conduct, as was the case with the malicious prosecution complaint before the court in Ledford, then the insurer has no duty to defend. Accordingly, in this case, because the allegations of intentional conversion include allegations of ordinary conversion, a tortious act that is covered under the policy, General Star had a duty to defend.

Although we have answered the certified question, we offer the following additional clarification in response to another argument that amici make in this case. They argue that the rule of Ferguson is at odds with a long line of authorities from this court. They contend that that line of authority, which includes Isenhart v. General Casualty Co., 233 Or 49, 377 P2d 26 (1962), McKee v. Allstate Ins. Co., 246 Or 517, 426 P2d 456 (1967), and City of Burns v. Northwestern Mutual, 248 Or 364, 434 P2d 465 (1967), stands for the proposition that an insurer has no duty to defend under a policy with an intentional-acts provision if the complaint against the insured alleges intentional conduct, regardless of whether the complaint also states a claim for covered conduct. In the context of that line of authority, they argue, this court must interpret Ferguson's "without amendment" standard strictly to require that, if the complaint must be amended in any way -- for example, to state separately an alternative allegation of unintentional conduct and an allegation of intentional conduct -- then there is no duty to defend. For the reasons that follow, we disagree.

First, this court specifically rejected that strict interpretation of the "without amendment" standard in Marleau, as described above. As this court noted in that case, "neither the failure to identify correctly the claims nor the failure to state them separately defeats the duty to defend." 333 Or at 91. Second, Isenhart and McKee are inapposite to this discussion, because the complaints at issue in those cases did not state claims for covered conduct or claims that would support both covered and excluded conduct; rather, they stated claims for excluded conduct only. Isenhart, 233 Or at 54; see also Ferguson, 254 Or at 508 (distinguishing complaint in Isenhart, because that complaint, unless amended, would not have permitted recovery for unintended injury); (5) McKee, 246 Or at 518-19. In other words, in those cases, this court was not presented with the problem of a complaint that, despite allegations of excluded conduct, also stated a claim for conduct covered under the insurance policy.

Finally, although amici correctly note that this court's holding in City of Burns is contrary to the duty-to-defend analysis offered here, this court, in Ferguson, explicitly disavowed City of Burns. The complaint at issue in City of Burns included a punitive damages provision alleging that the insured had acted "willfully, wantonly, and maliciously" when it moved the plaintiff's husband's body from one grave to another. This court held that the insurer did not have a duty to defend because the complaint alleged that the insured acted with the intent to cause the plaintiff harm, and intentional acts were excluded from coverage. 248 Or at 371. However, in Ferguson, this court stated that its conclusion in City of Burns

"was erroneous because the complaint, although alleging a malicious injury would, without amendment, permit a recovery for an unintended injury since it could be analogized to a 'lesser included offense.' Since the unintended injury fell within the policy coverage the insurer on that issue had a duty to defend."

Ferguson, 254 Or at 508. For the foregoing reasons, we reject the argument of amici curiae.

Certified question answered.

1. The Oregon Court of Appeals affirmed the trial court's judgment on appeal. Beall Transport Equipment Co. v. Southern Pacific, 170 Or App 336, 13 P3d 130 (2000). On review, this court affirmed in part and reversed in part the decision of the Court of Appeals, and remanded the case to that court for further proceedings. Beall Transport Equipment Co. v. Southern Pacific, 335 Or 130, 60 P3d 530 (2002).

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2. The amici curiae, who joined in one brief, are Mutual of Enumclaw Insurance Company, Farmers Insurance Company, Safeco Insurance Company, and Liberty Northwest Insurance Company.

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3. Amici are correct to point out that this court has the discretion to rephrase a question certified to it. See Western Helicopter Services v. Rogerson Aircraft, 311 Or 361, 370-71, 811 P2d 627 (1991) (so stating). Rephrasing the certified question primarily is for the purpose of facilitating a resolution of the actual question of law posed by the case. Id. However, we perceive no reason to do so here.

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4. In Marleau, however, this court concluded that the insurer did not have a duty to defend because the complaint did not state a claim for any covered claim. 333 Or at 96.

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5. It is not clear that this court today would reach the conclusion that it did in Isenhart that the complaint at issue there did not state a claim for unintentional conduct.

The complaint at issue in that case was one for assault and battery, and that intentional tort often includes the "lesser," unintentional offense of battery. See, e.g., Snyder v. Nelson/Leatherby Ins., 278 Or 409, 415-16, 564 P2d 681 (1977) (complaint for assault and battery permits inference of unintentional conduct). However, in Isenhart, whether the complaint included a lesser, covered offense was not the issue. In that case, the parties appear to have agreed that the complaint alleged only intentional conduct. Isenhart, 233 Or at 54.

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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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