S51598 State v. Adams

SUPREME COURT CASES

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State: Oregon

Docket No: CCD9906823T;CAA119362;SCS51598

Case Date: 08/04/2005

FILED: August 4, 2005

IN THE SUPREME COURT OF THE STATE OF OREGON

STATE OF OREGON,

Petitioner on Review,

MICHAEL C. ADAMS,
aka MICHAEL CORY ADAMS,

Respondent on Review,

(CC D9906823T; CA A119362; SC S51598)

En Banc

On review from the Court of Appeals.*

Argued and submitted January 12, 2005.

Christina M. Hutchins, 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 Janet A. Klapstein, Assistant Attorney General.

William Uhle, Portland, argued the cause and filed the brief for respondent on review.

GILLETTE, J.

The decision of the Court of Appeals and the judgment of the circuit court are affirmed.

*Appeal from Washington County Circuit Court, Hollie M. Pihl, Judge. 193 Or App 469, 89 P3d 1283 (2004).

GILLETTE, J.

This is the third of three cases that we decide today under the so-called speedy trial statutes, ORS 135.745 to 135.750. This case arises out of defendant's motion to dismiss on the ground that the state had failed to bring him to trial within a "reasonable period of time" under ORS 135.747. (1) The case differs from the other two cases in that the trial court here granted defendant's motion, (2) and the Court of Appeals affirmed that ruling. State v. Adams, 193 Or App 469, 89 P3d 1283 (2004). In seeking review of the Court of Appeals decision, the state focuses on the reasoning that the trial court and the Court of Appeals shared -- namely, that defendant's trial had been delayed unreasonably, that most of the delay could be traced to certain funding choices that the state legislature made, that the state ultimately must be held responsible for that part of the delay, and that the indictment therefore must be, and properly was, dismissed under ORS 135.747. The state argues that that reasoning is erroneous because it suggests that a lack of judicial resources is not a legitimate justification for trial delay under ORS 135.747. We conclude that, whether or not the reasoning of the trial court and the Court of Appeals was erroneous, the ultimate conclusion of both courts that defendant had not been brought to trial within a reasonable time was correct.

The relevant facts are as follows. On November 16, 1999, police cited defendant for Driving Under the Influence of Intoxicants (DUII), ORS 813.010, and ordered him to appear in Washington County Circuit Court on December 15, 1999. Five days later, police cited defendant for another DUII offense and ordered him to appear in circuit court (again, in Washington County) on December 20, 1999. Defendant failed to appear on December 15, but he did appear on December 20, 1999, and pleaded "not guilty" to both charges at that time. The trial court then ordered him to appear on February 14, 2000, for a pretrial conference.

Defendant failed to appear for the scheduled pretrial conference. (3) However, defendant's attorney appeared in court on February 28, 2000, to file a "demand for speedy trial." A few days later, on March 2, 2000, defendant attended a rescheduled pretrial conference and, at that time, rejected a plea offer by the state. The trial court then scheduled a trial on both charges for August 18, 2000.

A month before the scheduled trial, the state moved for a continuance on the ground that an essential witness would be unavailable. The trial court granted the state's motion and rescheduled defendant's trial for January 30, 2001. On January 30, 2001, defendant requested a continuance on the ground that defendant's lawyer had a scheduling conflict. The trial court granted defendant's request and rescheduled the trial for May 31, 2001. On May 31, 2001, the trial court reset the trial on its own motion for October 17, 2001, on the ground that no judges were available to try the case. On October 12, 2001, the trial court again reset the date of trial because no judges were available -- this time for March 7, 2002.

Prior to the March 7, 2002, trial date, defendant filed a motion to dismiss on statutory and constitutional speedy trial grounds. The trial court denied defendant's motion, and the trial occurred as scheduled. At the close of the trial, the jury convicted defendant of the second (November 21, 1999) DUII charge, but could not reach a decision on the first (November 16, 1999) DUII charge. The court declared a mistrial on that charge and set the matter over for retrial on August 20, 2002.

A few weeks before the scheduled retrial, defendant filed another motion to dismiss for lack of a speedy trial, again raising both statutory and constitutional arguments. On August 20, 2002, the judge assigned to try the case considered defendant's motion and decided that the indictment should be dismissed on statutory grounds. The judge opined that defendant's trial had been "unduly" delayed and noted that a substantial portion of the delay had occurred because of a persistent shortage of judges to hear criminal cases in Washington County. The judge noted that, in his view, that shortage was the result of a deliberate funding decision by the state legislature. (4) The judge concluded that the state ultimately was responsible for the delay and that the indictment must be dismissed.

The state appealed, arguing that the trial court had erred in (1) refusing to recognize that, by failing to object to certain postponements, defendant had consented to those postponements for purposes of ORS 135.747, and (2) holding that the delay in question was unreasonable for purposes of ORS 135.747, in spite of the fact that it arose out of a lack of judicial resources.

As noted, the Court of Appeals rejected both arguments and affirmed. With respect to the first argument, the court concluded that, for purposes of ORS 135.747, "consent" to a delay must involve some affirmative statement or action, not a mere failure to object. Adams, 193 Or App at 473. With respect to the state's second argument, the court rejected the state's underlying premise that the court should not hold the state responsible for the delay in question because it was beyond the state's control:

"[I]t could not be argued that the delay resulted from unavoidable circumstances over which the state had no control. The state, as a unitary political entity, is the plaintiff in this case: State v. Adams. 'The state' includes the legislative branch as well as the executive officers who apprehended and prosecuted defendant and the judicial officers who tried him. As such an entity, 'the state' has evidently chosen not to expend the resources necessary to bring defendant to trial in under 23 months. That may or may not have been a reasonable decision; it is not our office to sit in judgment on the reasonableness of the legislature's funding priorities. It is our office, however, to interpret the legislature's command that defendants be brought to trial within a reasonable period of time, a different inquiry entirely. In the present case, the state did not do so."

Id. at 475 (boldface type in original).

Before this court, the state continues to press its theory that, for purposes of ORS 135.747, "consent" includes a mere failure to object. This court's cases are, however, contrary to that position. See, e.g., State v. Chadwick, 150 Or 645, 650, 47 P2d 232 (1935) ("where the statute refers to the consent of defendant, it means his express consent").

The state also argues that defendant must be deemed to have consented affirmatively or expressly to certain delays in this case that, thus far, have not been counted against him. Only one of those delays is of any significance -- the five-month delay occasioned by the state's July 17, 2000, motion for a postponement. That delay occurred on the state's written application. However, the state points to a statement in the state's application that "the defense attorney * * * does not object to this reset request," and asserts that that statement shows that defendant expressly consented to the delay. We disagree. In cases like the present one, a lack of objection is just (and only) that: a lack of objection. It conveys no message that the defendant either joins in the motion or waives any rights that he has that are affected by the motion. It follows that we agree with the Court of Appeals that, in this statutory context, a recital by the state that defense counsel has "no objection" is insufficient to place a defendant's express consent on the record, as Chadwick requires.

We turn, then, to the state's other argument -- that the dismissal was erroneous because a lack of judicial resources caused the delay in question and the delay, therefore, was "reasonable" for purposes of ORS 135.747. Before we consider that argument, however, we first must identify the period of delay with more particularity. In the present case, a period of 27 months passed from the time that defendant was charged by complaint on the first DUII citation (5) on December 10, 1999, until he was tried on that and the other DUII charge on March 7, 2002. In evaluating the reasonableness of that time period, we must exclude from consideration any postponement that occurred "upon the application of the defendant or by the consent of the defendant." ORS 135.747. In the present case, that means that we subtract the four-month postponement that resulted from defendant's January 30, 2001, request for a setover from the 27-month period. Thus, our task is to determine whether the remaining period -- 23 months -- was a "reasonable period of time" for the state to bring defendant to trial. (6)

For purposes of ORS 135.747, a "reasonable period of time" is "such length of time as may reasonably be allowed or required having regard to attendant circumstances." State v. Emery, 318 Or 460, 467, 869 P2d 859 (1994) (quoting State v. Jackson, 228 Or 371, 377, 365 P2d 294 (1961)). The "attendant circumstances" include the circumstances that cause delay, i.e., the reasons for delay. State v. Johnson, ___ Or ___, ___, ___ P3d ___ (Aug 4, 2005) (slip op at 27). This court's older cases hold that a trial court has "good cause" to continue a trial until a later date if it has no room for the case on its present docket. See, e.g., State v. Bateham, 94 Or 524, 529, 186 P 5 (1919) (continuing case for lack of judicial time is "good cause" for denying statutory speedy trial motion); State v. Lee, 110 Or 682, 687, 224 P 627 (1924) (right to speedy trial not contravened when "accumulation of business render[s] trial impossible"); State of Oregon v. Kuhnhausen, 201 Or 478, 537-38, 266 P2d 698, 272 P2d 225 (1954) (trial court may find that an accumulation of cases already set constitutes good cause for continuing a criminal case). That principle recognizes the obvious fact that trial courts must have some ability to reschedule proceedings to deal with an unpredictable workload. The trial courts, in other words, must have control over their own dockets.

Although the state relies heavily on the foregoing point, it also seems to be suggesting that docket congestion becomes an even more compelling justification for delay -- and thus makes an even longer delay "reasonable" -- if it arises out of a legislative policy choice. (7) If that is the state's point, then we disagree. The question whether a legislative policy choice is reasonable within the universe of considerations that go into that policy choice is entirely separate from the question of whether a time period required to bring a defendant to trial is "reasonable" for purposes of ORS 135.747. Accordingly, the fact that docket congestion ultimately arises out of a legislative policy neither expands (as the state argues) nor contracts (as the trial court apparently believed) the period of time that otherwise would be considered reasonable.

We do agree with the state's narrower point, viz., that an overcrowded docket or, as the state would phrase it, a "lack of judicial resources" can justify at least some trial court decisions to postpone a trial for a certain length of time. Certainly, in ordinary circumstances, we would not think of a trial court's decision to postpone because of docket congestion as creating an unreasonable delay per se.

However, the fact of an overcrowded docket can only go so far in expanding the period of time that will be considered "reasonable" for purposes of ORS 135.747. At some point, the focus must shift away from whether the various postponement requests and decisions individually are justifiable to whether the overall period of time to bring the defendant to trial is "reasonable" in toto.

We think that the time period at issue here -- 23 months, excluding the delay that defendant himself caused -- goes beyond the reasonable limit. Although it is difficult to identify the point at which delay becomes unacceptable, we think that a delay that roughly equals the statute of limitations for the crime at issue is too long. (8) Although statutes of limitation clearly serve a different purpose than the speedy trial statutes, they nevertheless provide some indication of what the legislature views as the outer limit of reasonableness for proceeding against a defendant for a given crime. If two years is the limit for commencing a DUII prosecution, then it certainly must be beyond the reasonable time for bringing to trial a defendant whom the state already has charged with DUII. (9)

We hold that defendant in the present case was not brought to trial within a "reasonable period of time" for purposes of ORS 135.747. The trial court properly dismissed the indictment, and the Court of Appeals properly affirmed the trial court's decision to dismiss. (10)

The decision of the Court of Appeals and the judgment of the circuit court are affirmed.

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."

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2. In State v. Johnson, 193 Or App 250, 90 P3d 4, adh'd to on recons, 194 Or App 28, 92 P3d 766 (2004), the trial court denied the defendant's motion to dismiss. The Court of Appeals reversed and remanded to the trial court with instructions to dismiss without prejudice. We affirmed the Court of Appeals decision. State v. Johnson, 339 Or ___, ___ P3d ___ (Aug 4, 2005). In State v. Davids, 193 Or App 178, 90 P3d 1 (2004), the trial court also had denied the defendant's motion to dismiss. The Court of Appeals concluded that the trial court should have dismissed without prejudice pursuant to ORS 135.747. The Court of Appeals noted, however, that, because the statute of limitations for defendant's crimes had passed, the trial court's dismissal on remand must be final. Id. at 182. We affirmed that decision. State v. Davids, ___ Or ___, ___ P3d ___ (Aug 4, 2005).

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3. The trial court issued a "failure to appear" arrest warrant when defendant failed to appear, but revoked the warrant when defendant appeared to file his speedy trial motion. A notation on the revocation order suggests that the trial court found that defendant had been told, in error, not to appear for the February 14, 2000, pretrial conference.

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4. The judge explained, in that regard:

"[T]he legislature has chosen -- now, I know they have a limited amount of money called the general fund * * * and they have to make decisions in where to spend it. * * * And I agree with [another judge] that the reason this case did not go to trial within a reasonable period of time, within what we call the statutory aspects of the case, is because the legislature chose to spend our money elsewhere."

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5. As discussed in Johnson, ___ Or at ___ (slip op at 35), the clock begins to run, for purposes of the "reasonable period of time" determination of ORS 135.747, when the defendant is "charged with a crime."

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6. Before this court, the state also argues that defendant is categorically excluded from the dismissal remedy provided in ORS 135.747 because trial was postponed at least once on defendant's application. We rejected that construction of ORS 135.747 in Johnson, ___ Or at ___ (slip op at 37).

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7. The state suggests, for example, that "[i]f the legislature has directed courts to operate on restricted budgets, those limited resources will necessarily drive the inquiry of what constitutes a 'reasonable' time within which to bring an offender to trial."

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8. Defendant's crime of DUII is a misdemeanor. The general statute of limitations for misdemeanors is two years. ORS 131.125(6)(b).

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9. Our utilization of the applicable statute of limitations in this case does not, of course, mean that only such extreme delays will require dismissal pursuant to ORS 135.747; Johnson and Davids illustrate otherwise. Neither are we holding that a delay of that magnitude never can be justified; we do not have the ability to foresee every possible variation of facts that may occur. We simply hold here that the delay is extreme and is not justified by the reason that the state presents.

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10. In Johnson, ___ Or at ___ (slip op at 30), we concluded that trial courts have discretion to continue, in spite of an unreasonable delay in bringing a defendant to trial, if "sufficient reason" to override the mandate of dismissal is shown. Here, where the trial court granted defendant's motion to dismiss, there is no occasion to consider that additional step.

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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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