S52119 Morales v. SAIF

SUPREME COURT CASES

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State: Oregon

Docket No: WCB02-07850;CAA122935;SCS52119

Case Date: 12/15/2005

FILED: December 15, 2005

IN THE SUPREME COURT OF THE STATE OF OREGON

In the Matter of the Compensation of
Robert M. Morales, Claimant.

ROBERT M. MORALES,

Petitioner on Review,

SAIF CORPORATION
and BRING RECYCLING,

Respondents on Review.

(WCB 02-07850; CA A122935; SC S52119)

En Banc

On review from the Court of Appeals.*

Argued and submitted September 9, 2005.

Christopher D. Moore, of Malagon, Moore & Jensen, Eugene, argued the cause and filed the brief for petitioner on review.

Jerome P. Larkin, SAIF Corporation, Salem, argued the cause and filed the brief for respondents on review.

DE MUNIZ, J.

The decision of the Court of Appeals and the order of the Workers' Compensation Board are affirmed.

*Judicial review from final order of the Workers' Compensation Board. 196 Or App 693, 103 P3d 654 (2004).

DE MUNIZ, J.

The issue in this workers' compensation case is whether ORS 656.325(5)(b) entitled claimant's former employer to cease paying benefits for temporary total disability and to begin paying benefits for temporary partial disability when claimant's attending physician approved work in a modified job that the former employer would have offered claimant if claimant had not been terminated for violating a work rule. We conclude that the statute authorized the payment changes at issue in this case and, therefore, affirm the order of the Workers' Compensation Board (board) and the decision of the Court of Appeals.

We take the procedural history and facts from the Court of Appeals opinion:

"In 1997, claimant suffered a shoulder injury at work, which employer accepted as nondisabling. Claimant returned to his job without time loss. In 1998, employer terminated claimant's employment for a violation of work rules. Claimant began working for a different employer, Foss Furniture Clinic (Foss). Meanwhile, in 2000, employer implemented a written policy to assist workers to return to work after an injury by offering modified work.

"In 2002, claimant's shoulder condition became worse and he was unable to continue working at Foss. He has not returned to work since that time. In July 2002, employer accepted an aggravation claim relating to the shoulder injury and reclassified the original claim as disabling. Employer began paying benefits for temporary total disability as of September 19, 2002. Claimant had surgery on his shoulder on September 23, 2002, and his attending physician released him for modified work on September 30, 2002. On October 9, 2002, the attending physician approved a modified job that employer would have offered to claimant as of October 14, 2002, had he remained employed. In response to the physician's release, employer ceased payment of temporary total disability as of October 14. The board upheld employer's termination of benefits [under ORS 656.325(5)(b) set out post], and claimant seeks judicial review. The only question on review is whether employer was authorized to cease paying temporary total disability benefits."

Morales v. SAIF Corp., 196 Or App 693, 695, 103 P3d 654 (2004).

On appeal, claimant argued that (1) ORS 656.325(5)(b) does not apply to aggravation claims; (2) even if ORS 656.325(5)(b) were applicable, the statute's provisions had not been satisfied because claimant's termination had not occurred while his aggravation claim was pending; and (3) employer did not have a written return-to-work policy in effect at the time of that termination. The Court of Appeals, however, affirmed the board's termination of claimant's temporary total disability benefits. The Court of Appeals reasoned that, although claimant could not return to work for employer because employer had terminated him, employer nevertheless had satisfied the requirements of ORS 565.325(5)(b) by (1) creating a job modified to accommodate claimant's injury; (2) implementing a written policy of offering such modified work to injured workers; and (3) receiving approval from claimant's physician regarding claimant's ability to do that modified work. Morales, 196 Or App at 699.

We subsequently allowed claimant's petition for review to examine the legislature's intent in enacting ORS 656.325(5)(b). On review, claimant reasserts the arguments that he presented to the board and the Court of Appeals, which question the meaning and applicability of ORS 656.325(5)(b), which provides:

"If the worker has been terminated for violation of work rules or other disciplinary reasons, the insurer or self-insured employer shall cease payments pursuant to ORS 656.210 and commence payments pursuant to ORS 656.212 when the attending physician or nurse practitioner authorized to provide medical services under ORS 656.245 approves employment in a modified job that would have been offered to the worker if the worker had remained employed, provided that the employer has a written policy of offering modified work to injured workers."

We begin our analysis with claimant's assertion that the Court of Appeals and the board "erroneously applied ORS 656.325(5)(b) to an accepted aggravation claim, denying [claimant] the protection of temporary disability benefits afforded by the workers' compensation statutes." Claimant contends that an aggravation claim is not subject to ORS 656.325 because an aggravation claim is a separate and independent claim governed by ORS 656.273, (1) which does not refer to or incorporate ORS 656.325.

In support of that contention, claimant initially argues that this court's decision in Buddenberg v. Southcoast Lumber, 316 Or 180, 850 P2d 360 (1993), established that "ORS 656.325 does not apply to aggravation claims because they are new claims in their own right, independent of the prior adjudicated claim." Claimant's reliance on Buddenberg is misplaced.

In Buddenberg, this court held that "a claim for aggravation independently fits the definition of a 'claim,'" 316 Or at 183 n 1. However, the court also concluded that entitlement to benefits for an aggravation claim depends "on how the claimants's circumstances fit within the provisions of the Worker's Compensation Law governing that particular claim." Id. at 186. Here, the Court of Appeals in applying Buddenberg, reasoned that, "although an aggravation claim is a separate claim, the general provisions of the Workers' Compensation Law regarding the availability of and limitations on particular types of benefits apply to aggravation claims." Morales, 196 Or App at 700.

The Court of Appeals cited correctly this court's statement in Buddenberg in rejecting claimant's argument. However, in Buddenberg this court did not analyze ORS 656.325(5)(b) under the now-familiar methodology for construing statutes that this court summarized in PGE v. Bureau of Labor and Industries, 317 Or 606, 859 P2d 1143 (1993). This case presents the opportunity to do so. Under that methodology, we first examine the text of the statute, in context, in an effort to discern the intent of the legislature. Id. at 610. If the meaning of the statute is clear at that level of analysis, then further inquiry is unnecessary. Id. at 611.

The text of ORS 656.325(5)(b) does not indicate explicitly whether its provisions are applicable or inapplicable to aggravation claims. However, the statute applies to "payments" made under ORS 656.210 and ORS 656.212, and does not specifically exclude payments for aggravations claims. If the legislature had intended to exempt aggravation claims from ORS 656.325(5)(b), it could have included an exclusionary preamble. (2) No such preamble exists, and in interpreting a statute, this court will not insert what the legislature has omitted. ORS 174.010. The legislature's omission of any exemptions demonstrates that the legislature intended the provisions of ORS 656.325(5)(b) to have plenary effect.

Furthermore, in determining the statute's applicability, we also must consider previous decisions of this court interpreting ORS 656.325(5). In Cutright v. Weyerhaeuser, 299 Or 290, 702 P2d 403 (1985), the court determined that

"[a]s applied to aggravation claims, [former ORS 656.325(5) (1983)] dictates that a worker receiving [temporary total disability] benefits must not refuse wage earning employment prior to the aggravation claim determination if the worker is capable of working. Thus, a claimant who has retired from the labor market cannot qualify for [temporary total disability] benefits because of the claimant's decision to refuse further wage earning employment."

Id. at 300. In the 20 years following the Cutright decision, the legislature has not amended the text of ORS 656.325(5) to restrict its application to initial claims only or otherwise explicitly made the statute inapplicable to aggravation claims. (3) For the reasons described above, we conclude that the legislature intended that temporary total disability benefits deriving from an aggravation claim be subject to termination in the circumstances set forth in ORS 656.325(5)(b).

Claimant next argues that, even if ORS 656.325 applies to aggravation claims generally, the statute is "reasonably susceptible to more than one meaning." Claimant contends that the statute does not clearly indicate when its provisions are triggered. Claimant argues that ORS 656.325(5)(b) applies only if termination occurred during the aggravation claim and a written return-to-work policy was in effect at the time of that termination. As claimant interprets ORS 656.325(5)(b), employer failed to satisfy either of those requirements.

Claimant further argues that his claim is new and independent, separate from the initial claim, and that this court should analyze it based on present circumstances and not on events that preceded it. As claimant views it, his 1998 termination should have no bearing on whether he is entitled to benefits under the current aggravation claim, and he should not be "punished" for an event that occurred at a prior employment.

In essence, claimant relies on the underlying purpose of the Workers' Compensation Law, which is to "restore the injured worker physically and economically to a self-sufficient status in an expeditious manner and to the greatest extent practicable[.]" ORS 656.012(2)(c). Claimant argues that "interpreting ORS 656.325(5) to include workers * * * who have remained in the workforce and have worked successfully for later employers and then suffer an aggravation of their compensable condition, frustrates the Workers' Compensation Law's policies and punishes the employee for an earlier alleged work rule violation." Claimant's policy argument is reasonable, and it parallels the stated purposes of the Workers' Compensation Act. Furthermore, claimant is correct that ORS 656.325(5)(b) applies "[i]f a worker has been terminated for violation of work rules or other disciplinary reasons" and does not state explicitly by whom the worker must have been terminated.

However, the text of ORS 656.325(5)(b) indicates only that it applies if the employer-at-injury terminated the claimant, and it does not address any subsequent employment. ORS 656.325(5)(b) provides that, if a worker has been terminated, and "the attending physician * * * approves employment in a modified job that would have been offered to the worker if the worker had remained employed," then the employer is permitted to cease payment of temporary total disability and commence payment of temporary partial disability. (Emphasis added.) The employer permitted to reduce payments under the statute is the employer-at-injury, and the hypothetical modified job is a job that would have been offered by the employer-at-injury had the claimant remained employed by the employer-at-injury. As we view it, the text allows for no other interpretation.

Claimant also argues that ORS 656.325(5)(b) applies only if the injured worker is receiving temporary total disability benefits at the time of termination. ORS 656.325(5) provides that "[t]he insurer or self-insured employer shall cease [temporary total disability] payments and commence [temporary partial disability] payments when the attending physician * * * approves employment in a modified job that would have been offered to the worker if the worker had remained employed." ORS 656.325(5) unambiguously conditions both the obligation to stop paying temporary total disability and the obligation to begin paying temporary partial disability on the attending physician's approval of employment in a modified job. The text of the statute does not support claimant's interpretation, because it requires only that the termination of employment precede the physician's approval of a modified job

Finally, claimant contends that ORS 656.325(5)(b) requires the employer to have the written policy in place at the time of termination, not merely at the time that the physician approves the modified job. We disagree. The statute refers to a hypothetical job, which would have been offered had the claimant not been terminated. Here, employer's policy was in effect both at the time that the aggravation of the injury occurred and at the time that the attending physician approved employment in a modified job. Under ORS 656.325(5)(b), the obligation to have a return-to-work policy is satisfied if the employer has that policy in place at the time the worker's attending physician approves a modified job.

Based on the foregoing, we conclude that employer satisfied the requirements under ORS 656.325(5)(b) and was authorized to cease paying temporary total disability benefits and commence reduced temporary partial disability benefits payments.

The decision of the Court of Appeals and the order of the Workers' Compensation Board are affirmed.

1. ORS 656.273(1)(a) and (b) provides:

"After the last award or arrangement of compensation, an injured worker is entitled to additional compensation for worsened conditions resulting from the original injury. A worsened condition resulting from the original injury is established by medical evidence of an actual worsening of the compensable condition supported by objective findings. However, if the major contributing cause of the worsened condition is an injury not occurring within the course and scope of employment, the worsening is not compensable. A worsened condition is not established by either or both of the following:

"(a) The worker's absence from work for any given amount of time as a result of the worker's condition from the original injury; or

"(b) Inpatient treatment of the worker at a hospital for the worker's condition from the original injury."

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2. An example of such a preamble can be found in ORS 656.325(5)(a), which provides, in part:

"Except as provided by ORS 656.268(4)(c) and (10), an insurer * * * shall cease making payments pursuant to ORS 656.210 and shall commence making payment of such amounts as are due pursuant to ORS 565.212 when an injured worker refuses wage earning employment prior to claim determination * * *."

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3. In 1995, the legislature amended ORS 656.325(5), renumbering that provision as ORS 656.325(5)(a) and adding two new paragraphs. In so doing, the legislature chose to incorporate the text of former ORS 656.325(5) (1983) as the entirety of subparagraph (5)(a). Therefore, the legislature demonstrated an intent to extend the circumstances in which an injured worker becomes entitled to temporary partial disability as opposed to temporary total disability to both paragraphs (5)(b) and (c).

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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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