S51773 Richards v. Board of Parole

SUPREME COURT CASES

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State: Oregon

Docket No: (CAA124095;SCS51773)

Case Date: 08/18/2005

FILED: August 18, 2005

IN THE SUPREME COURT OF THE STATE OF OREGON

DICKEY A. RICHARDS,

Petitioner on Review,

BOARD OF PAROLE AND POST-PRISON SUPERVISION,

Respondent on Review.

(CA A124095; SC S51773)

En Banc

On review from the Court of Appeals.*

Argued and submitted June 21, 2005.

Walter J. Ledesma, Deputy Public Defender, Salem, argued the cause for petitioner on review. With him on the briefs were Peter A. Ozanne, Executive Director, and Peter Gartlan, Chief Defender, Office of Public Defense Services.

Stacey RJ Guise, Assistant Attorney General, Salem, argued the cause for respondent on review. With her on the brief were Hardy Myers, Attorney General, and Mary H. Williams, Solicitor General.

DE MUNIZ, J.

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

*Appeal from Court of Appeals Order of Dismissal dated September 9, 2004. Mary J. Diets, Chief Judge.

DE MUNIZ, J.

This case requires this court to determine whether petitioner, an inmate, was "adversely affected or aggrieved" by an order of the Board of Parole and Post-Prison Supervision (board). Petitioner initially sought administrative review of a board order that delayed his release date for two years and required that he undergo a psychological evaluation before release. In response, the board entered a new order that changed petitioner's projected release date to one year, but retained the requirement that petitioner undergo a psychological evaluation. Petitioner again sought administrative review, arguing that he should not have to undergo a psychological evaluation and that the board should release him in a year without such an evaluation. The board rejected that argument. Petitioner then sought judicial review in the Court of Appeals. The board moved to dismiss, arguing that the board's order did not adversely affected or aggrieved petitioner in the manner necessary to establish appellate jurisdiction. The Court of Appeals agreed with the board and dismissed the petition for judicial review by order for lack of jurisdiction. We allowed petitioner's petition for review and now conclude that the Court of Appeals erred in dismissing petitioner's petition.

The pertinent procedural facts are undisputed. Petitioner is imprisoned for crimes that he committed in 1980. In early 2003, petitioner underwent a psychological examination. Following that examination, the board concluded in Board Action Form (BAF) 10 that petitioner suffered from a present severe emotional disturbance that constitutes a danger to the health or safety of the community. The board, acting in that instance through two of its members, deferred petitioner's release date for 24 months.

Petitioner requested administrative review of BAF 10 and advanced six arguments, one of which was that a board panel made up of only two members could only postpone petitioner's release date for one year. See former OAR 255-60-010(2) (1980). (1) In particular, petitioner stated that "[t]he Board postponed me (2) years, but could only postpone me (1) year as I seen [sic] a panel."

The board responded with Administration Review Response (ARR) 6 and BAF 11. In ARR 6, the board conceded that, applying the administrative rule that was in effect when petitioner committed his crimes, petitioner was correct in his understanding of former OAR 255-60-101(2) (1980) that a two-member panel could not extend a release date more than 12 months. In BAF 11, the board stated that petitioner's projected parole release date would be deferred 12 months, rather than 24 months, until October 3, 2004.

Petitioner sought administrative review of BAF 11, arguing that the board had failed to comply with OAR 255-60-010(2) (1980) in BAF 11. As petitioner stated his argument:

"The Rule that applies to my case, (Division 60, specifically [former OAR] 255-060-010(2) (1980)) states that the Board members I appeared before, constituting a panel, may order postponement of the scheduled release date (if a finding of present emotional disturbance etc.) "Not to exceed one year." This language is "specific" and mandates that my release date of 10/3/04 be a fixed date -- no additional postponements or extensions shall be administered. My prison term should expire on 10/3/04."

(Emphasis in original.)

The board responded in the aforementioned ARR 6, discussing petitioner's argument at some length:

"You allege that [former OAR 255-60-010 (1980)] indicates that the board is limited to postponing your scheduled parole release date for 12 months and afterwards, [and] it is required to release you onto parole supervision. You further allege that the board cannot require that you participate in a psychological evaluation after it has postponed your scheduled parole release date for 12 months. You are incorrect on both points. Pursuant to ORS 144.125, in effect at the time you committed your crimes, the board, after finding that an offender suffered from a present severe emotional disturbance such as to constitute a danger to the health or safety of the community could defer the offender's scheduled parole release date to a specified future date. * * * There is nothing in either the statute or the rule that indicates an offender is to be released onto parole supervision after a 24-month postponement or a 12-month postponement of the scheduled parole release date. Furthermore, pursuant to ORS 144.223, in effect at the time you committed your crimes, the board could require any prisoner being considered for parole to participate in a psychological evaluation. Finally, the board found that you were suffering from a present severe emotional disturbance such as to constitute a danger to the health or safety of the community after conducting an exit interview with you. After making this finding, the board is authorized to postpone the scheduled parole release date of an offender. Pursuant to rule and statute, the board must make this finding in order to defer an offender's scheduled parole release date. Only in the absence of such a finding is an offender entitled to release onto parole supervision after an exit interview. Your interpretation of [former] OAR 255-60-010 [(1980)] is illogical and if true would render the entire parole process superfluous as well as being unconstitutional. Therefore, your allegation has no merit. The board did not violate any rules, policies, statutes, or constitutions when it made its decision in your case."

The board then informed petitioner that he could seek judicial review of BAF 11, under ORS 144.335, by filing a petition with the Court of Appeals within 60 days.

Petitioner filed a timely petition for review of BAF 11, stating that he had exhausted his administrative remedies via ARR 6. He also asserted that he was adversely affected or aggrieved by BAF 11.

The board filed a motion to dismiss, arguing that the Court of Appeals lacked jurisdiction because petitioner was not "adversely affected or aggrieved" under ORS 144.335 because BAF 11 had granted petitioner the relief that he had requested in changing his projected release date to 12 months from 24 months. Petitioner responded that, while the board indeed had granted him partial relief, it had not granted him all the relief that he had sought. He argued:

"The unambiguous text of the rule states that the board was authorized to perform only one action[:] defer a release date for up to one year. The text does not support a reading that the board was authorized to set another hearing with a new invasive psychological report from a psychologist hired by the board with the possibility of another deferral. Under petitioner's reading of the rule, any time in prison after one year adversely affects petitioner."

Petitioner further contended that "[t]he exercise of nonexistent authority by the board to postpone petitioner's release date and subject him to a subsequent hearing with another privacy invading psychological evaluation adversely affects or aggrieves petitioner."

The Court of Appeals dismissed the petition for judicial review by order, stating simply that "petitioner is not adversely affected or aggrieved by the challenged order." As noted, we allowed petitioner's ensuing petition for review.

Legislation, rather than common law, defines appellate jurisdiction in Oregon. See State v. Snyder, 337 Or 410, 416, 97 P3d 1181 (2004) (right to appeal is statutory); Benton County v. Friends of Benton County, 294 Or 79, 82, 653 P2d 1249 (1982) (common law does not provide jurisdictional authority). We begin with the pertinent statute describing the requirements for appellate jurisdiction over board orders. ORS 144.335 (1) provides:

"A person over whom the State Board of Parole and Post-Prison Supervision exercises its jurisdiction may seek judicial review of a final order of the board as provided in this section if:

"(a) The person is adversely affected or aggrieved by a final order of the board; and

"(b) The person has exhausted administrative review as provided by board rule."

Although this court has not scrutinized the meaning of "adversely affected or aggrieved" as that phrase is used in ORS 144.335, the term is one of art when used in connection with judicial review of a final order. (2) This court's most comprehensive discussion of the meaning of the phrase appears in People for Ethical Treatment v. Inst. Animal Care, 312 Or 95, 817 P2d 1299 (1991) ("PETA"), a case on which both parties in this dispute rely:

"From the legislative history and from our prior interpretations of 'aggrieved' person, we conclude that a person is 'aggrieved' under ORS 183.480(1) if the person shows one or more of the following factors: (1) the person has suffered an injury to a substantial interest resulting directly from the challenged governmental action; (2) the person seeks to further an interest that the legislature expressly wished to have considered; or (3) the person has such a personal stake in the outcome of the controversy as to assure concrete adverseness to the proceeding. The legislature has not granted standing under ORS 183.480(1) to those persons who merely are 'dissatisfied with the agency's order,' or who have only an 'abstract interest * * * in the question presented,' or who are mere bystanders."

312 Or at 101-02 (citations omitted).

PETA involved a third party that wished to object to the treatment of animals in a university laboratory setting. Accordingly, the court established a broad theoretical understanding of how third parties might be "aggrieved" for purposes of seeking appellate review.

Here, unlike in PETA, petitioner argues that he did not obtain the relief that he had sought, and that he was entitled to receive, in the administrative review proceeding. That is the ordinary circumstance of most parties who seek judicial review. In such an instance, it is not difficult to determine whether a party is either "adversely affected" or "aggrieved." Nothing is remarkable about the observation that, if a party did not obtain the relief that it had sought before an administrative tribunal, such a party is either "adversely affected" or "aggrieved" by the denial of that relief. See Snyder, 337 Or at 417-18 (party aggrieved by Court of Appeals decision in which party did not prevail in the manner in which it had sought to prevail).

Here, petitioner sought judicial review of BAF 11. A BAF is an appealable final order of the board under ORS 144.335(1)(a). Norris v. Board of Parole, 331 Or 194, 197 & n 2, 13 P3d 104 (2000). Petitioner exhausted administrative review by seeking the reassessment that resulted in ARR 6. See OAR 255-080-0005(1) (inmate may request administrative review by sending Administrative Review Request Form to board, explaining how case fits criteria for review listed in OAR 255-080-0010). The remaining issue under ORS 144.335(1) is whether BAF 11 adversely affected or aggrieved petitioner.

In seeking judicial review, petitioner maintained that the board had acted outside its rules and authority in postponing review of petitioner's release date by more than one year and thereby (according to petitioner) had violated former OAR 255-60-010(2) (1980). The board granted relief by scheduling review for one year in the future. Petitioner then objected that his OAR 255-60-010(2) argument was broader than merely resetting an earlier date for parole consideration. He clarified his argument that the board had violated former OAR 255-60-010(2) (1980) by conditioning future consideration for release on a psychological examination. Although petitioner could have made a clearer argument earlier, perhaps even when he challenged BAF 10, he clarified his argument to the board after it issued BAF 11. Afterwards, the board considered and rejected petitioner's argument in ARR 6. Whatever the merits of petitioner's argument, he did not receive all the relief that he had sought under former OAR 255-60-010(2) (1980) when the board entered BAF 11 including the requirement that petitioner undergo another psychological evaluation. We therefore conclude that petitioner was "adversely affected or aggrieved" by BAF 11 for purposes of ORS 144.335(1)(a), and that the Court of Appeals erred in concluding otherwise.

The board offers several arguments in support of its position that petitioner was not adversely affected or aggrieved by BAF 11. First, the board argues that, because the board had granted petitioner the specific relief that he had requested, petitioner was not adversely affected or aggrieved by BAF 11. As we explained previously, however, petitioner advanced an argument regarding the board's statutory authority to postpone his projected release date. The board understood petitioner's objection to be that the board had no authority to postpone such a date more than 12 months and granted relief. In fact, as petitioner made clear in his subsequent review request, he was making a broader argument about the board's statutory authority under former OAR 255-60-010(2) (1980). The board rejected that argument in ARR 6 and, in doing so, adversely affected or aggrieved petitioner by denying him the relief that he had sought.

Second, the board argues that a statement in BAF 11 that did nothing more than "express the board's expectation that it will take certain actions at some point in the future" did not adversely affect or aggrieve petitioner. In other words, the board argues that petitioner's claim will not be ripe until the board takes action -- specifically, until it conduct another psychological examination of petitioner. The board, however, did take action when it denied petitioner the relief that he had sought. Petitioner, moreover, was required to challenge the board's order, under the board's own rules, within 45 days of the mailing date on the board's final action on the reviewed issue. OAR 255-080-0005(2). He then was required to file a timely petition for review. ORS 144.355(4) (60-day time limit to file petition for review). The board denied future relief to petitioner after evaluating his arguments. In light of the board's refusal to grant relief, petitioner was required to act pursuant to the pertinent administrative and statutory requirements to preserve appellate review of his grievance. Under the statutory time constraints, petitioner could not wait for the board to subject him to another psychological evaluation before challenging the board's order.

Third, the board argues that petitioner should have made his argument challenging the board's authority in response to BAF 10, rather than BAF 11, and that, because he challenged the later order, he is not adversely affected or aggrieved. The board's argument (and, by inference from the wording of its decision, the Court of Appeals' acceptance of it) reflects a fundamental misunderstanding of the triage function performed by ORS 144.335(1)(a). That provisions's requirement that, to obtain judicial review, the person seeking review be "adversely affected or aggrieved" is a requirement of standing -- it has nothing to do with the legal merits of petitioner's case. That is, the requirement serves only to separate those who are entitled to have their arguments considered on the merits from those who are not so entitled.

Properly understood, the board's argument respecting BAF 10 and BAF 11 is not about whether petitioner met that threshold requirement of ORS 144.335(1)(a). Rather, it is about whether petitioner is entitled to review on the merits in light of his alleged failure to challenge the proper BAF and, having failed to do so, whether the doctrine of issue preclusion bars petitioner from asserting successfully the legal theory that he now wishes to assert.

The board's argument may or may not be correct; we express no opinion concerning it in this case. It is clear, however, that the argument is not about whether petitioner is adversely affected or aggrieved by BAF 11. Patently, he is adversely affected: BAF 11 placed him under a disability, that, he asserts, legally cannot be imposed on him. Petitioner's legal theory supporting his claim may or may not succeed, but he has established that he is entitled to have it addressed either directly on the merits or, if the doctrine applies, as a matter of issue preclusion. We hold here only that the Court of Appeals is not excused from addressing petitioner's theory by virtue of the threshold requirement -- "adversely affected or aggrieved" -- of ORS 144.335(1)(a). Its contrary holding was error and must be reversed.

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

1. Former OAR 255-60-010(2) (1980) provided:

"Following the hearing, a panel may order postponement of the scheduled release of a prisoner found to have a present emotional disturbance which the Board finds poses a threat to the health or safety of the community until after a specified future date not to exceed one year or until the prisoner or institution presents evidence that the emotional disturbance is over or in remission."

Because it is unnecessary to our disposition of this proceeding, we express no opinion respecting the merits of petitioner's substantive arguments in that regard.

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2. ORS 183.480(1), a part of the Oregon Administrative Procedure Act, provides:

"Except as provided in ORS 183.415(5)(b) [regarding an informal disposition of a contested case], any person adversely affected or aggrieved by an order or any party to an agency proceeding is entitled to judicial review of a final order, whether such order is affirmative or negative in form."

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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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