S51594 State v. Davids

SUPREME COURT CASES

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State: Oregon

Docket No: CC990231301;CAA111231;SCS51594

Case Date: 08/04/2005

FILED: August 4, 2005

IN THE SUPREME COURT OF THE STATE OF OREGON

STATE OF OREGON,

Petitioner on Review,

BRANT GREGORY DAVIDS,

Respondent on Review.

(CC 990231301; CA A111231; SC S51594)

En Banc

On review from the Court of Appeals.*

Argued and submitted January 6, 2005.

Janet A. Klapstein, Assistant Attorney General, Salem, argued the cause and filed the brief for petitioner on review. With her on the brief were Hardy Myers, Attorney General, Mary H. Williams, Solicitor General, and Joanna L. Jenkins, Assistant Attorney General.

Susan F. Drake, Deputy Public Defender, Salem, argued the cause and filed the brief for respondent on review. With her on the brief were Peter A. Ozanne, Executive Director, and Peter Gartlan, Chief Defender, Office of Public Defense Services.

GILLETTE, J.

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

*Appeal from Multnomah County Circuit Court, William C. Snouffer, Judge (Motions); Jan Wyers, Judge (Trial and Sentencing). 193 Or App 178, 90 P3d 1 (2004).

GILLETTE, J.

This case is one of three that we decide today concerning the proper interpretation and application of two "speedy trial" statutes, ORS 135.747 and ORS 135.750. (1) The three cases have certain issues of statutory construction in common, which we addressed in our opinion in State v. Johnson, ___ Or ___, ___ P3d ___ (Aug 4, 2005). This case presents two additional issues that are case-specific: (1) whether defendant impliedly waived his speedy trial objection by engaging in certain allegedly dilatory tactics; and (2) whether the trial court properly denied defendant's motion to dismiss the case because the state, in fact, had brought defendant to trial within a "reasonable period of time" under ORS 135.747. For the reasons that follow, we conclude that defendant did not waive his speedy trial right by engaging in dilatory tactics. We further conclude that the state violated defendant's statutory right to a speedy trial. We therefore affirm the decision of the Court of Appeals, which took the same view.

The record discloses the following facts. On December 30, 1998, police officers arrested defendant on suspicion of Driving Under the Influence of Intoxicants (DUII), ORS 813.010, and Driving While Suspended (DWS), ORS 811.182. On February 16, 1999, a Multnomah County grand jury indicted defendant for those crimes, and an arrest warrant issued that same day. The police did not arrest defendant on the warrant until January 31, 2000 -- some 11 and one-half months after the indictment issued. It appears that, between the date that the warrant issued and the date of defendant's arrest, the police made no attempt to execute the warrant.

After his arrest on the warrant, defendant appeared in Multnomah County Circuit Court for arraignment. Defendant pleaded not guilty, and the court set a trial "call" date (2) of March 20, 2000. The court also ordered defendant to appear in court on February 8, 2000, for a preliminary proceeding. Defendant failed to appear for that proceeding and thereafter was brought in on a "failure to appear" arrest warrant. The court then appointed defense counsel and released defendant.

On March 20, 2000, the state requested and obtained a three-day setover. Thereafter, defendant sought and obtained two brief setovers and also filed a motion to dismiss on statutory and constitutional speedy trial grounds. On May 5, 2000, the trial court denied defendant's speedy trial motion and set defendant's trial for May 15. However, on May 15, defendant apparently was being detained in Wasco County on a new DUII charge and, consequently, did not appear for the trial. Defendant ultimately was tried on July 18, 2000, and a jury convicted him of both charges.

Defendant appealed, arguing that the trial court erred by denying his motion to dismiss on both statutory and constitutional speedy trial grounds. The Court of Appeals reversed. That court first determined that, in light of the 11 and one-half month delay in the warrant service, the state had not brought defendant to trial within a "reasonable period of time" under ORS 135.747 and that dismissal of the indictment consequently was required. The court further observed that, because the charges against defendant were, respectively, a felony and a Class A misdemeanor, ORS 135.753(2) ordinarily would entitle the state to reindict him. In this case, however, dismissal pursuant to ORS 135.747 provided defendant with complete relief, because the statute of limitations for both crimes had expired. State v. Davids, 193 Or App 178, 90 P3d 1 (2004). We allowed the state's petition for review.

Before this court, the state raises a number of general arguments about the meaning and application of the speedy trial statutes, including that: (1) this court must review the trial court's ruling under ORS 135.747 under an "abuse of discretion" standard; (2) the requirement of ORS 135.747 that the state must bring a criminal defendant to trial within a "reasonable period of time" applies only after the defendant has been arraigned; and (3) defendants who request or consent to any delay, as defendant did here, are categorically excluded from the remedy provided in ORS 135.747. We already have considered and rejected those same arguments in Johnson, ___ Or at ___ (slip op at 6-37). What remains are the issues that are specific to this case: (1) whether defendant impliedly consented to or waived objection to the 11 and one-half month delay in executing the arrest warrant by requesting a number of setovers and by failing to appear at a scheduled proceeding; and (2) whether, in light of workload and budgetary pressures on the law enforcement agency charged with executing the arrest warrant, the 11 and one-half month delay in executing the warrant was "reasonable."

With respect to the first issue, we note that, in Johnson, we rejected the state's broader theory that ORS 135.747 categorically precludes dismissal when a defendant has requested or consented to any delay. Johnson, ___ Or at ___ (slip op at 37). The state argues, however, that certain actions by a defendant, or combinations of actions, are so inherently inconsistent with a desire for a speedy trial that courts must treat them as impliedly waiving any right to dismissal under the statutory speedy trial statutes. Applying that proposed principle to the present case, the state contends that, by seeking two setovers and failing to appear at a scheduled proceeding, defendant impliedly waived the remedy provided in ORS 135.747. (3)

Assuming, without deciding, that a defendant's dilatory tactics could operate as an implied waiver in the manner that the state has described, the facts of this case are insufficient to establish such an implied waiver. The setovers in question all were relatively brief and, to all appearances, legitimate. The circumstances surrounding the one relevant "failure to appear" incident, on February 8, 2000, are unknown, but there is nothing in the record that suggests a particularly dilatory purpose. In short, there is no evidence in the record suggesting a pattern of tactics at odds with demanding dismissal as provided by ORS 135.747.

We turn, next, to the question whether the state brought defendant to trial within a "reasonable period of time." Defendant expressly requested or cooperated with a number of delays, that together account for about three of the 15 months that passed between defendant's indictment and his motion to dismiss. We do not consider such delays in our "reasonable period of time" analysis. ORS 135.747; Johnson, ___ Or at ___ (slip op at 37). We focus, instead, on the period of delay that was beyond defendant's control, i.e., the 11 and one-half months that the state took to serve the arrest warrant that issued at the time when a grand jury indicted defendant.

In Johnson, we held that, when the state takes longer than ordinarily would be expected to bring a defendant to trial, the circumstances that caused the delay generally determine whether the delay is reasonable. Johnson, ___ Or at ___ (slip op at 27). We also held that, in the absence of a good explanation, we deem a 21-month interval in arraigning a defendant on an arrest warrant issued pursuant to an indictment to be unreasonable.

The delay at issue here is somewhat shorter than the one at issue in Johnson -- only 11 and one-half months, as compared to 21 months. For the purpose of serving a warrant, however, we think that such a period is sufficiently exceptional to require an explanation. (4) Before the trial court, the state did not attempt to explain the delay, except to say that "we weren't able to serve the warrant until that time." The trial court apparently concluded that the delay was the product of simple neglect. (5)

The state now argues that there was good reason for the delay, namely, that the sheriff's office was operating under budgetary constraints and workload pressures that prevented it from executing lower priority warrants, such as traffic offense warrants, in a timely fashion. The state contends that the trial court was aware of those problems, pointing to the following statement that the trial court made before it denied defendant's motion to dismiss:

"It's very frustrating for the trial courts because we have these hundreds of delays sitting around. The police department has thousands of warrants out there. The police department is understaffed. Lovely if we could send out about 20 people who did nothing but go out and serve warrants and get those suckers cleaned up and get the backlog cleaned up."

The state acknowledges that there was no affirmative evidence in the record pertaining to that explanation for the delay. The state suggests, however, that the above-quoted statement reveals that the trial court was utilizing its own knowledge that the time period for warrant service was "within the normal range," given the resource deficiencies that Multnomah County law enforcement agencies were facing. The state contends that we must defer to that factual finding, because the trial court, "which handles these cases and is confronted with that backlog on a daily basis," was in the best position "to evaluate whether the delay in warrant service is beyond what is typical, given county resources."

The state's argument fails, because there is no basis in this record to make any factual finding respecting what is a "typical" period of delay in serving warrants of this type. Moreover, and even if we were willing to accept the foregoing "finding," we would not accept the two further assumptions underpinning the state's argument. First, we do not accept the state's assumption that a trial judge's direct knowledge of the "typical" time frame for warrant service in cases in his courtroom somehow extends to an equally direct knowledge of how that time frame relates to county resources. Second, we do not accept the state's assumptions that, if a time frame for warrant service is "typical" for a given jurisdiction or courtroom, it necessarily is "reasonable" for purposes of ORS 135.747.

In sum, we reject the state's suggestion that the trial court could find on this record that resource limitations of the relevant law enforcement agency caused the delay. There is no evidentiary support in the record for such a finding, and we know of no other basis on which the trial court could have made it. In the end, given the length of the delay, the state's failure to offer any reasons for that delay to the trial court, and the lack of factual support in the record for the state's present explanation to this court, we conclude that the delay was unreasonable and that the trial court erred in denying defendant's motion to dismiss. (6)

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

1. ORS 135.747 provides:

"If a defendant charged with a crime, whose trial has not been postponed upon the application of the defendant or by the consent of the defendant, is not brought to trial within a reasonable period of time, the court shall order the accusatory instrument to be dismissed."

ORS 135.750 provides:

"If the defendant is not proceeded against or tried, as provided in ORS 135.745 and 135.747, and sufficient reason therefor is shown, the court may order the action to be continued and in the meantime may release the defendant from custody as provided in ORS 135.230 to 135.290, for the appearance of the defendant to answer the charge or action."

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2. This "call" procedure is a feature of the local rules in Multnomah County.

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3. The state refers to the two instances on February 8, 2000, and May 15, 2000, in which defendant failed to appear for scheduled proceedings. However, the second incident occurred after defendant's motion to dismiss was decided and, therefore, cannot serve as justification for the trial court's decision.

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4. As we noted in Johnson, ___ Or at ___ n 12 (slip op at 27 n 12), we generally expect that the police will execute warrants of this sort within a matter of weeks, not months.

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5. Before issuing his order denying defendant's motion, the trial judge indicated that he "was very concerned about the fact that apparently there was no effort to serve this warrant during the nearly one-year period after the indictment was handed down." The trial court ultimately denied the motion because it concluded that "the fact that the warrant collected cobwebs for nearly a year really does not impact upon the motion for speedy trial."

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6. Our disposition of the case on this basis leaves open the question whether an extraordinary delay in service of a warrant, even if caused by limited resources, could be "reasonable" for purposes of ORS 135.747. We express no opinion respecting that question.

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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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