S52226 Burke v. Oxford House of Oregon Chapter V

SUPREME COURT CASES

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State: Oregon

Docket No: none

Case Date: 06/22/2006

FILED: June 22, 2006

IN THE SUPREME COURT OF THE STATE OF OREGON

KYRA BURKE,

Petitioner on Review,

OXFORD HOUSE OF OREGON CHAPTER V,
an unincorporated association,
OXFORD HOUSE-RAMONA,
an unincorporated association,
OXFORD HOUSE, INC.,
a Delaware non-profit corporation,

Respondents on Review.

(CC 0105-05394; CA A119933; SC S52226)

On review from the Court of Appeals.*

Argued and submitted November 1, 2005.

Edward Johnson, Oregon Law Center, Portland, argued the cause for petitioner on review. With him on the briefs were Mark G. Passannante, of Broer & Passannante, and Maureen Leonard.

Craig Colby, Portland, argued the cause for respondents on review. With him on the brief was Frank Wall.

Kathleen L. Wilde and James A. Wrigley, Oregon Advocacy Center, Portland, filed a brief on behalf of amici curiae Fair Housing Council of Oregon and Oregon Advocacy Center.

Adam Scott Arms, McKanna, Bishop, Joffe & Sullivan, LLP, Portland, filed a brief on behalf of amici curiae Community Alliance of Tenants and JOIN.

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

CARSON, J.

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

*Appeal from Multnomah County Circuit Court, John A. Wittmayer, Judge. 196 Or App 726, 103 P3d 1184 (2004).

**Chief Justice when case was argued.

***Chief Justice when decision was rendered.

CARSON, J.

This case requires us to decide whether defendants were subject to the requirements of the Residential Landlord and Tenant Act (RLTA), ORS chapter 90. Plaintiff brought an action against defendants, Oxford House, Inc.; Oxford House of Oregon, Chapter V; and Oxford House-Ramona, because they evicted her from her residence without following the requirements of the RLTA. Defendants moved for summary judgment, claiming, among other things, that the nature of their relationship with plaintiff exempted them from the RLTA. The trial court, in denying defendants' motion for summary judgment, rejected that argument and granted plaintiff's cross-motion for summary judgment, concluding that the RLTA applied to defendants' arrangement with plaintiff. Defendants appealed, and the Court of Appeals reversed the judgment of the trial court, concluding that defendants' arrangement with plaintiff fit within two separate exemptions from the RLTA's requirements. Burke v. Oxford House of Oregon Chapter V, 196 Or App 726, 744, 103 P3d 1184 (2004). We allowed plaintiff's petition for review and now reverse the decision of the Court of Appeals and affirm the judgment of the trial court.

The following facts are undisputed. Defendant Oxford House, Inc., is a nonprofit corporation established "to allow recovering alcoholics and drug addicts to support each other on the road to independent living." To further that mission, Oxford House, Inc., grants charters to Oxford House chapters, and those chapters establish and maintain individual Oxford House residences. Those residences are unsupervised, and Oxford House provides no professional services to members living at its residences. The essential purpose of the Oxford House structure is to allow recovering alcoholics and drug addicts to live together in a common drug-and-alcohol-free residence. Oxford House, Inc., also provides support services to assist Oxford House chapters and individual Oxford Houses in establishing common residences for Oxford House members. Oxford House, Inc., requires, as a condition of being granted a charter and of maintaining that charter, that each Oxford House chapter, and the houses run by that chapter, comply with three rules: (1) each Oxford House must be run democratically, with most decisions made by a majority vote of members living in the house; (2) each Oxford House must be financially self-supporting; and (3) any member who relapses and begins using drugs or alcohol must be expelled from the house immediately. (1)

Defendant Oxford House of Oregon, Chapter V (Oxford House Chapter V) is an unincorporated association of recovering alcoholics and drug addicts. Oxford House, Inc., has granted a charter to Oxford House Chapter V and has authorized Oxford House Chapter V to establish and maintain individual Oxford House residences.

Defendant Oxford House-Ramona is an individual Oxford House residence, established under the Oxford House Chapter V charter. Oxford House-Ramona provides housing for three to six recovering alcoholics or drug addicts in a single house leased in the name of Oxford House Chapter V. Oxford House members living in Oxford House-Ramona are assigned their own bedrooms but share all other living spaces in the house. Members pay a monthly membership fee, the majority of which goes toward paying the rent for the house. The monthly fee also covers shared expenses such as electricity and cable television, and part of the fee is sent to Oxford House, Inc., as a "contribution."

Plaintiff lived at Oxford House-Ramona. In February 2001, following a dispute with a fellow member, a majority of the members of Oxford House-Ramona found that plaintiff had violated a rule prohibiting disruptive behavior. Consequently, they evicted plaintiff from Oxford House-Ramona and gave her 15 minutes' notice to remove her belongings. Plaintiff was unable to remove all her belongings, and other Oxford House members moved the remaining belongings to the garage. Some of plaintiff's belongings were lost or stolen before she could retrieve them. Plaintiff sued defendants, seeking a declaratory judgment that defendants were subject to the requirements of the RLTA and seeking damages for her lost property and statutory damages (2) for what she asserted was an unlawful eviction.

Defendants filed a motion for summary judgment, asserting that (1) they were not subject to the requirements of the RLTA because their arrangement with plaintiff was exempt from that act's coverage; (2) they had formed no landlord-tenant relationship with plaintiff; and (3) the RLTA was preempted by federal law. Plaintiff filed a cross-motion for summary judgment, opposing each of defendants' legal arguments and asserting that she was entitled to prevail on her claims as a matter of law. More specifically, plaintiff argued, both in the trial court and before the Court of Appeals, that defendants could not qualify as exempt from the RLTA because they had structured their relationship with plaintiff to avoid application of the RLTA, in violation of ORS 90.110. In response to those motions, the trial court concluded that (1) defendants and plaintiff had a landlord-tenant relationship covered by the RLTA; (2) defendants were not exempt from the requirements of the RLTA; (3) the RLTA was not preempted by federal law; and (4) plaintiff was entitled to her requested relief. (3)

Defendants appealed, and the Court of Appeals concluded that defendants' relationship with plaintiff fit within two exemptions from the RLTA's coverage. Id. Based upon that conclusion, the Court of Appeals reversed the judgment of the trial court and remanded the case for entry of a judgment in defendants' favor. Id. Plaintiff sought and we allowed review of the Court of Appeals decision.

Before this court, defendants assert only that(1) they were not subject to the requirements of the RLTA because their relationship with plaintiff was exempt from that act's coverage and (2) they had formed no landlord-tenant relationship with plaintiff. Defendants concede that the RLTA was not preempted by federal law.

We consider only defendants' first argument because defendants did not raise their second argument to the Court of Appeals below. The trial court specifically concluded that defendants and plaintiff had formed a landlord-tenant relationship. Before the Court of Appeals, defendants argued only that they were not subject to the requirements of the RLTA because their relationship with plaintiff was exempt from that act's coverage and that federal law preempted the RLTA. On appeal, defendants presented no argument that they had formed no landlord-tenant relationship with plaintiff. On review, questions before this court "include all questions properly before the Court of Appeals that the petition or the response claims were erroneously decided by that court." ORAP 9.20(2). Because defendants failed to present the Court of Appeals with the question whether defendants and plaintiff had formed a landlord-tenant relationship, we decline to consider it.

Therefore, the sole issue before this court is whether defendants were subject to the requirements of the RLTA. Fortunately, that issue is more interesting than it is difficult. For the reasons that follow, we conclude that the RLTA applied to the relationship between plaintiff and defendants.

The RLTA "applies to, regulates and determines rights, obligations and remedies under a rental agreement, wherever made, for a dwelling unit located within this state." ORS 90.115. However, ORS 90.110 lists various residential arrangements that are exempt from the RLTA's requirements. That statute provides, in part:

"Unless created to avoid the application of [the RLTA], the following arrangements are not governed by [the RLTA]:

"(1) Residence at an institution, public or private, if incidental to detention or the provision of medical, geriatric, educational, counseling, religious or similar service, but not including residence in off-campus nondormitory housing.

"* * * * *

"(3) Occupancy by a member of a fraternal or social organization in the portion of a structure operated for the benefit of the organization."

Although not exempt from the requirements of the RLTA, drug-and-alcohol-free housing facilities enjoy expedited eviction procedures under certain circumstances. See former ORS 90.400(9) (1999), renumbered as ORS 90.398 (2005) (providing for termination of tenancy on 48 hours' notice if tenant uses drugs or alcohol while living in drug-and-alcohol-free housing). To qualify for those expedited eviction procedures, the drug-and-alcohol-free housing providers must meet the following requirements, among others:

"(a) Each of the dwelling units on the premises is occupied or held for occupancy by at least one tenant who is a recovering alcoholic or drug addict and is participating in a program of recovery;

"(b) The landlord is a nonprofit corporation * * * or a housing authority * * *;

"(c) The landlord provides:

"(A) A drug and alcohol free environment, covering all tenants, employees, staff, agents of the landlord and guests;

"(B) An employee who monitors the tenants for compliance with the requirements of paragraph (d) of this subsection;

"(C) Individual and group support for recovery; and

"(D) Access to a specified program of recovery; and

"(d) The rental agreement is in writing and includes the following provisions:

"(A) That the tenant shall not use, possess or share alcohol, illegal drugs, controlled substances or prescription drugs without a medical prescription, either on or off the premises;

"* * * * *

"(C) That the tenant shall participate in a program of recovery, which specific program is described in the rental agreement;

"* * * * *

"(F) That the landlord has the right to terminate the tenant's tenancy in the drug and alcohol free housing for noncompliance with the requirements of this paragraph, pursuant to ORS 90.400(1) and (9) or 90.630."

ORS 90.243(1) (1999), amended by Or Laws 2003, ch 378, § 10.

The Court of Appeals held that defendants' arrangement with plaintiff fit into two of the exempt arrangements listed in ORS 90.110. We need not consider the correctness of that interpretation, however, because we conclude that the introductory phrase of ORS 90.110 precludes defendants from qualifying for any of the exemptions listed in ORS 90.110.

The record in this case includes a memorandum from Oxford House, Inc., that explains Oxford House operating procedures to "new [Oxford House] groups, landlords, rental agents[,] and local officials * * *." That memorandum is entitled "OXFORD HOUSE: The Legal and Policy Reasons Underlying Oxford House Group Leas[es]." A subsection of that memorandum, entitled "Who Signs the Lease," provides:

"The signatory of the lease is the individual Oxford House; for example, Oxford House-Main Street. The effect of this commitment by the group to the landlord is important because of the nature of Oxford House and the application of local landlord-tenant laws.

"Oxford House works because an individual resident who returns to using alcohol or drugs–in or outside of the house–must be immediately expelled from the house. If the individual is a signatory to the lease the immediate eviction becomes difficult, if not impossible, because of local landlord-tenant rights. In many jurisdictions it takes up to ninety days to evict a tenant even for non-payment of rent. Since no individual is a signatory to a Oxford House lease, the relapsing individual who is being evicted has no legal rights to delay his or her departure. There is no way to accomplish this result without the signature on the lease being in the name of the particular Oxford House group."

(Emphasis added.) Defendants followed the procedures explained in that memorandum when establishing the lease agreement here. Specifically, the lease for Oxford House-Ramona was signed in the name of Oxford House Chapter V.

The introductory phrase of ORS 90.110 states that various listed arrangements are exempt from the application of the RLTA "[u]nless created to avoid the application of [the RLTA] * * *." The term "arrangements" includes not only the type of rental arrangement but also the procedures by which the parties have structured the rental arrangement. See ORS 90.110(2) (exempting from coverage of RLTA occupancy by purchaser of a dwelling prior to closing or by seller following closing if the occupancy is "permitted under the terms of an agreement for sale of [the] dwelling * * *.") The Oxford House memorandum clearly illustrates that defendants structure their lease arrangements to avoid application of the landlord-tenant laws. They readily proclaim that that is the purpose of their group lease requirement. Therefore, defendants may not avail themselves of any of the exemptions listed in ORS 90.110, and defendants were subject to the requirements of the RLTA. Consequently, plaintiff was entitled to summary judgment because defendants did not comply with the requirements of the RLTA when evicting her.

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

1. According to Oxford House rules, a member also can be expelled immediately, by a majority vote of house members, for engaging in disruptive behavior, stealing, or not paying rent. Conversely, the Residential Landlord and Tenant Act (RLTA) requires a landlord to give a tenant a minimum of 24 hours' notice before terminating a tenancy. See former ORS 90.400(3) (1999), renumbered as 90.396 (2005) (providing that landlord may terminate tenancy on 24 hours' written notice if tenant commits certain acts). Of particular interest here, former ORS 90.400(9) (1999), renumbered as 90.398 (2005), allows for speedy, although not immediate, termination of a tenancy for drug and alcohol free housing. That statute provides:

"If a tenant living for less than two years in drug and alcohol free housing uses, possesses or shares alcohol, illegal drugs, controlled substances or prescription drugs without a medical prescription, the landlord may deliver a written notice to the tenant terminating the tenancy for cause as provided in this subsection. The notice shall specify the acts constituting the drug or alcohol violation and shall state that the rental agreement will terminate in not less than 48 hours after delivery of the notice, at a specified date and time. The notice shall also state that the tenant can cure the drug or alcohol violation by a change in conduct or otherwise within 24 hours after delivery of the notice. If the tenant cures the violation within the 24-hour period, the rental agreement shall not terminate. If the tenant does not cure the violation within the 24-hour period, the rental agreement shall terminate as provided in the notice. If substantially the same act that constituted a prior drug or alcohol violation of which notice was given reoccurs within six months, the landlord may terminate the rental agreement upon at least 24 hours' written notice specifying the violation and the date and time of termination of the rental agreement. The tenant shall not have a right to cure this subsequent violation."

Former ORS 90.400(9) (1999).

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2. For example, ORS 90.375 allows a tenant to recover "up to two months' periodic rent or twice the actual damages sustained by the tenant * * *" for an unlawful eviction. Former ORS 90.425(16)(a) (1999), renumbered as ORS 90.425(a) (2005), allows a tenant to recover "up to twice the actual damages sustained by the tenant * * *" if the landlord fails to follow certain procedures when dealing with tenant property. Under ORS 90.245 a tenant may "recover in addition to the actual damages of the tenant an amount up to three months' periodic rent[ ]" if the landlord attempts to enforce certain, prohibited, rental agreement provisions.

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3. The parties subsequently agreed on the amount of plaintiff's damages, and the trial court entered judgment accordingly.

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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
2

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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