S49787 Jett v. Ford Motor Co.

SUPREME COURT CASES

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State: Oregon

Docket No: CC9801-00538

Case Date: 07/03/2003

FILED: JULY 3, 2003

IN THE SUPREME COURT OF THE STATE OF OREGON

TRUDY JETT
and RON JETT,

Petitioners on Review,

FORD MOTOR COMPANY,
a Delaware corporation,

Respondent on Review,

and

MILLIGAN MOTORS, INC.,
an Oregon corporation,

Defendant.

FORD MOTOR COMPANY,
a Delaware corporation,
and MILLIGAN MOTORS, INC.,
an Oregon corporation,

Third-Party Plaintiffs,

TIM TESTERMAN,
dba Advanced Auto Detailing,

Third-Party Defendant.

(CC 9801-00538; CA A111123; SC S49787)

On review from the Court of Appeals.*

Argued and submitted March 5, 2003.

W. Eugene Hallman, Hallman & Dretke, Pendleton, argued the cause and filed the briefs for petitioners on review.

John McCauley, Venable LLP, Baltimore, Maryland, argued the cause for respondent on review. With him on the briefs were Michael T. Garone, Schwabe, Williamson & Wyatt, PC, Portland, and Jonathan M. Hoffman, Martin, Bischoff, Templeton, Langslet & Hoffman, LLP, Portland.

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

DE MUNIZ, J.

The decision of the Court of Appeals is reversed, and the case is remanded to the Court of Appeals for further proceedings.

*Appeal from Multnomah County Circuit Court, Marshall L. Amiton, Judge. 183 Or App 260, 52 P3d 441 (2002).

DE MUNIZ, J.

This is a civil case in which plaintiff filed an action against defendant Ford Motor Company (Ford), alleging that a delivery truck that she operated as an employee of United Parcel Service (UPS) was defective and injured her. (1) At trial, Ford denied that the truck was defective and also contended that plaintiff had been negligent and had contributed to her injuries. The jury concluded that Ford was 85-percent liable and that plaintiff was 15-percent liable. Ford appealed from the judgment entered on the jury's verdict.

On appeal, Ford assigned error to the trial court's refusal to admit into evidence portions of certain UPS safety rules, the trial court's instruction on comparative fault, and the denial of Ford's motion for mistrial based on plaintiff's counsel's closing argument. The Court of Appeals reasoned that this court's decisions in Jones v. Mitchell Bros, 266 Or 513, 511 P2d 347 (1973), and Hansen v. Abrasive Engineering and Manufacturing, 317 Or 378, 856 P2d 625 (1993), permit a trier of fact to consider a company's internal safety rules when those rules are relevant in determining the standard of care that a party was required to exercise in the circumstances. The Court of Appeals concluded that "the safety [rules were] relevant to the reasonableness of plaintiff's conduct" and that the exclusion of the rules had at least some likelihood of affecting the jury's assessment of comparative fault. Jett v. Ford Motor Co., 183 Or App 260, 266-69, 52 P3d 441 (2002). The Court of Appeals, therefore, reversed the trial court's judgment and remanded the case to that court. Id. The Court of Appeals did not address Ford's other two assignments of error, concluding that Ford had not preserved its assignment of error relating to the comparative fault instruction and that, in light of the disposition of the case, the court did not need to reach Ford's assignment of error regarding the mistrial motion. We allowed plaintiff's petition for review and now reverse the decision of the Court of Appeals and remand to that court for further proceedings.

On review, plaintiff argues that the UPS safety rules were not relevant to prove the pertinent standard of care and that, even if they were, they would have tended to confuse the jury. Ford's response is that the Court of Appeals correctly concluded that, under this court's decisions, internal safety rules can be admissible to prove the standard of care in specific instances.

Plaintiff, however, makes an additional argument, one that, if well taken, would obviate our need to determine whether the particular safety rules in this case were admissible. Plaintiff maintains that rules governing our appellate standard of review require us to affirm the trial court judgment because any error in excluding the UPS safety rules did not substantially affect Ford's rights. We now address that argument and, in doing so, we assume, for purposes of this opinion, that the UPS safety rules were relevant and that the trial court erred in refusing to admit them into evidence.

Two related standards govern our consideration of evidentiary questions on appellate review. First, "[n]o judgment shall be reversed or modified except for error substantially affecting the rights of a party." ORS 19.415(2). See Mable Shoup v. Wal-Mart Stores, Inc., 335 Or 164, 173, 61 P3d 928 (2003) ("The possibility that an error might have resulted in a different jury verdict is insufficient under [ORS 19.415(2)]. Instead, the court must be able to conclude, from the record, that the error 'substantially affect[ed]' the right of the losing party."). Second, "[e]rror may not be predicated upon a ruling which admits or excludes evidence unless a substantial right of the party is affected[.]" OEC 103(1).

The Court of Appeals summarized the facts as follows:

"Plaintiff was a professional package delivery truck driver for UPS. On April 22, 1996, she reported that her regular truck was difficult to shift. Two days later, she again reported trouble with shifting. On April 29, the truck was taken in for servicing, and plaintiff was given a replacement truck. Plaintiff, however, reported that the replacement vehicle also was difficult to shift. On April 30, the individual responsible for truck maintenance and service spoke with plaintiff about the shifting problem with the replacement truck. He told plaintiff that the replacement truck was unsafe and that she should wait until later that morning to do her rounds, when her regular truck would be available.

"Plaintiff declined to wait. She loaded the replacement truck with parcels, turned on the ignition, and pulled the truck forward approximately 10 feet. Immediately, however, she encountered difficulty with the gear shift. She moved the transmission shift lever to 'neutral.' She believes that she set the parking brake, because that was her usual practice. With the engine still running, she got out of the truck and walked behind it to retrieve some additional packages. While she was standing between the rear of the truck and the loading dock, the truck rolled back and pinned her against the dock, causing severe injuries.

"Before trial, plaintiffs moved to exclude evidence of the UPS safety rules concerning the proper procedure for the disposition of delivery trucks before getting out of them. Initially, the trial court ruled that the rules are relevant to the issues of comparative negligence and denied plaintiffs' motion. The following day, however, the trial court reconsidered. The court drew a distinction between internal company safety rules and a safety-related law or regulation. Citing Jones v. Mitchell Bros, 266 Or 513, 511 P2d 347 (1973), and Jones v. Montgomery Ward, 49 Or App 231, 619 P2d 907 (1980), the court held that the former are not relevant, while the latter are. Accordingly, the trial court decided to allow plaintiffs' motion to exclude evidence of UPS safety rules.

"At trial, Ford offered the testimony of Isfeld, a UPS driver trainer with 27 years of experience in the package delivery business. When Ford asked him about the standards that he uses in training UPS drivers, plaintiffs objected on the basis of the trial court's earlier ruling about internal UPS safety rules. An offer of proof followed, during which Isfeld testified about UPS rules concerning shifting the vehicle into park, setting the parking brake, and turning off the vehicle before getting out. The trial court ruled that Isfeld could not refer to any internal UPS safety rules because they were not relevant."

183 Or App 263-64.

At trial, the issue for the jury was whether Ford had manufactured a defective product and, if so, to what extent plaintiff's negligence had caused her injuries. If the jury decided that Ford was liable, then the jury had to determine the extent of plaintiff's responsibility for her injuries under principles of comparative fault.

Ford sought to introduce the UPS safety rules to prove that plaintiff had acted negligently, i.e., that plaintiff had acted unreasonably in getting out of the delivery truck without shifting into park, setting the parking brake, and turning the motor off. At trial, however, several experienced delivery drivers offered testimony that was consistent with the substance of the UPS rules. Plaintiff's expert, a UPS Fleet Manager with experience in training UPS drivers, testified on cross-examination:

"Q Sir, as someone with this background, it would be fair to say, wouldn't it, that you consider it safe practice to make sure your vehicle, especially if you are driving a [delivery truck] such as the one that Mrs. Jett was driving, if you were driving a [delivery truck], you would want to make sure that vehicle was in park before you got out of it; correct?

"A Correct.

"Q Sir, if you were in a [delivery truck] and * * * couldn't get it into park after you had started the engine and taken it out of park and driven it forward, then you tried to put it into park and you couldn't do that, with your background, it would be safe in your view, a safe practice to make sure, at least to get that engine turned off before you get out if you don't know - if you don't know that you are in park; right?

"A Correct."

Another UPS driver with sixteen years' experience testified:

"Q Over the years you have learned that when you exit a vehicle you set the parking brake, haven't you?

"A Yes, sir.

"Q And you learned that you shut the vehicle off when you exit the vehicle, haven't you?

"A Yes."

Another UPS driver with ten years' experience testified on cross-examination by Ford's counsel:

"Q [W]henever you left your vehicle, you set that parking brake, didn't you?

"A Are you asking if I did that consistently or are you asking if I do that?

"Q Was that your practice to set the parking brake?

"A Yes.

"Q And it was not your practice to leave the engine running without setting the parking brake, was it?

"A No.

"Q And, in fact, it was not your practice to leave your engine running if you weren't in park; right?

"A No, I wouldn't leave my engine running if I was not in park in an automatic transmission vehicle.

"Q Right. You understood it would not be a safe practice to do that?

"A That's correct."

Even plaintiff admitted under cross-examination that she knew that she should turn the engine off and set the parking brake:

"Q You knew that whenever you had stopped your vehicle to get out of it that you needed to turn your engine off, did you not?

"A Yes. I knew that that's what they wanted you to do and that's what you should do.

"Q And you also knew that you were to always put the vehicle into park whenever you got out of the vehicle as well, right?

"A Yes."

As previously noted, to provide a basis for reversal or modification of a judgment, any evidentiary error must substantially affect a party's rights. The record that we have set out reflects an accumulation of testimony establishing that the applicable standard of care for a delivery driver in plaintiff's situation included putting the vehicle in park, turning off the motor, and setting the brake before getting out of the delivery vehicle. Indeed, plaintiff's testimony appears fairly to acknowledge the existence of rules to that effect and the fact that she had violated those rules. Therefore, even if we assume that excluding the UPS safety rules from evidence was an error, we cannot conclude that the error substantially affected Ford's rights because ample evidence in the record made the same point that Ford had sought to make by introducing the UPS safety rules. Thus, Ford has failed to demonstrate prejudicial error sufficient to justify reversal of the trial court judgment under ORS 19.415(2). See Shoup, 335 Or at 174 (describing burden of party on appeal to obtain reversal of judgment).

We now address one of the remaining questions, viz., the Court of Appeals' conclusion that Ford did not properly preserve its objection to the trial court's comparative fault instruction. The jury was instructed as follows:

"A special rule of comparative negligence applies only to a products liability case.

"When considering the negligence, if any, of the plaintiff, carelessness or negligent failure to discover or guard against the product defect is not an appropriate defense and may not be considered by the jury.

"Other forms of negligent conduct by plaintiff, if any, such as unreasonableness, misuse of the product, or unreasonable use despite knowledge of the dangerous defect in the product and awareness of the risk posed by that defect may be considered by the jury."

183 Or App at 264-65. That instruction is known as a "Sandford" instruction, after Sandford v. Chevrolet Division of General Motors, 292 Or 590, 642 P2d 624 (1982), in which this court held that a plaintiff's negligence may be considered in a products liability action, "unless the user's alleged negligence consists in the kind of unobservant, inattentive, ignorant, or awkward failure to discover or guard against the defect that goes toward making the product dangerously defective in the first place." Id. at 598.

At trial, Ford objected to the comparative fault instruction quoted above. Specifically, Ford disagreed with the paragraph in the instruction that stated, "When considering the negligence, if any, of the plaintiff, carelessness or negligent failure to discover or guard against the product defect is not an appropriate defense and may not be considered by the jury." Ford protested that it had not alleged that plaintiff had been careless or negligent regarding a product defect, but that plaintiff had known that she was supposed to have acted in a particular manner (i.e., in accordance with the UPS safety rules), and had not. Plaintiff, however, argued that the instruction properly was given. Her theory was that the design of the truck's shifting mechanism was prone to defective operation. According to plaintiff, the instruction was proper, because the defective design of the truck's shifting mechanism could mislead a driver into believing that the truck was shifted into neutral when it was actually between gears or in reverse, and plaintiff should not be faulted for that kind of mistake.

The Court of Appeals held that Ford had failed to preserve its objection to the instructions because Ford had failed to explain the basis of the exception as ORCP 59 H requires. (2) Jett, 183 Or App at 269. However, as the foregoing recitation demonstrates, that conclusion was incorrect. Ford had explained its objection to the trial court, thus giving the court the opportunity to change the instruction, and Ford had renewed its objection just before and after the court gave the instruction to the jury. See Davis v. O'Brien, 320 Or 729, 737, 891 P2d 1307 (1995) (rules pertaining to preservation of error are intended to advance goals such as ensuring that parties clearly present arguments to trial court and that parties are not taken by surprise, misled, or denied opportunities to contest opposing arguments); Delaney v. Taco Time Intern, Inc., 297 Or 10, 18, 681 P2d 114 (1984) (purpose of requiring exceptions to jury instructions is to give trial court opportunity to correct instruction). We, therefore, conclude that the objection to the instruction was preserved. On remand, the Court of Appeals must address the merits of Ford's assignment of error concerning the "Sandford" instruction. See State ex rel Carlisle v. Frost, 326 Or 607, 617, 956 P2d 202 (1998) ("When this court concludes that the Court of Appeals has erred in not deciding an issue on the merits, it usually remands the case to that court to consider the issue in the first instance.").

The decision of the Court of Appeals is reversed, and the case is remanded to the Court of Appeals for further proceedings.

1. Plaintiff's husband also filed a claim against Ford. He is not a party on review.

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2. ORCP 59 H provides:

"No statement of issues submitted to the jury pursuant to subsection C(2) of this rule and no instruction given to a jury shall be subject to review upon appeal unless its error, if any, was pointed out to the judge who gave it and unless a notation of an exception is made immediately after the court instructs the jury. Any point of exception shall be particularly stated and taken down by the reporter or delivered in writing to the judge. It shall be unnecessary to note an exception in court to any other ruling made. All adverse rulings, including failure to give a requested instruction or a requested statement of issues, except those contained in instructions and statements of issues given, shall import an exception in favor of the party against whom the ruling was made."

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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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