S52697 State v. Lane

SUPREME COURT CASES

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State: Oregon

Docket No: CC02FE0143;CAA119122;SCS52697

Case Date: 10/05/2006

FILED: October 5, 2006

IN THE SUPREME COURT OF THE STATE OF OREGON

STATE OF OREGON,

Petitioner on Review,

ISSAC JEROME LANE,

Respondent on Review.

(CC 02FE0143; CA A119122; SC S52697)

On review from the Court of Appeals.*

Argued and submitted May 9, 2006.

Jennifer S. Lloyd, Assistant Attorney General, Salem, argued the cause and filed the brief for petitioner on review. With her on the brief were Hardy Myers, Attorney General, and Mary H. Williams, Solicitor General.

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

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

BALMER, J.

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

*Appeal from Crook County Circuit Court, Daniel Ahern, Judge. 198 Or App 173, 108 P3d 20 (2005).

** Riggs, J., retired September 30, 2006, and did not participate in the decision of this case.

BALMER, J.

Defendant fled from a courtroom after the trial court revoked his pretrial release status and remanded him to the custody of the sheriff for transportation to the county jail. As we discuss below, a person who unlawfully flees from "custody" commits the crime of third-degree escape, ORS 162.145(1), while a person who unlawfully flees from a "correctional facility" commits the crime of second-degree escape, ORS 162.155(1)(a). The state charged defendant with both second-degree escape and the less serious crime of third-degree escape in connection with the incident. Following a bench trial, the trial court convicted defendant of second-degree escape on the theory that the courtroom was a "correctional facility." The Court of Appeals reversed on a different theory, holding that the state had failed to prove that defendant had the requisite mental state to sustain a conviction for escape from a correctional facility. State v. Lane, 198 Or App 173, 108 P3d 20 (2005). We granted review and now reverse the decision of the Court of Appeals and affirm the judgment of the circuit court.

The facts are undisputed. The police arrested defendant and three others for burglary and placed them in the Crook County Jail. Defendant was released from jail pending trial when he signed a release agreement requiring that he remain in regular contact with his defense counsel. Defendant's counsel later moved to withdraw, however, because defendant had failed to remain in contact with him as required by the release agreement. Shortly thereafter, defendant appeared at a status hearing before Judge Thompson. Also present at the hearing were two codefendants, who continued to be held at the Crook County Jail. A deputy sheriff from the Crook County Jail escorted the codefendants to court and remained in the courtroom during the status hearing.

At the hearing, the state moved to revoke defendant's release agreement on the ground that he had violated the requirement that he remain in contact with his defense counsel. Judge Thompson allowed the motion, signed the order in defendant's presence, told defendant that he had revoked defendant's release, and informed him that he had been "reduced to custody." Shortly thereafter, defendant left the courtroom by a side door. As defendant was leaving, Judge Thompson reminded him that he had been remanded to custody. Court staff notified the local police, and defendant was apprehended several blocks from the courthouse.

Defendant's indictment charged him with escape in the second degree, ORS 162.155, for escaping from a correctional facility, and escape in the third degree, ORS 162.145, for escaping from custody. Following a bench trial, the trial court found that defendant unlawfully had departed from a "correctional facility" when he left the courtroom after being "reduced to custody" by Judge Thompson. The trial court reasoned that, after Judge Thompson had revoked defendant's release and remanded him to custody, the courtroom was, in effect, a place of confinement for defendant. The trial court also noted that the presence of the deputy sheriff established that defendant was in the constructive custody of a correctional facility, as of the time that Judge Thompson had remanded him to custody. The court therefore found defendant guilty of second-degree escape and dismissed the charge of third-degree escape.

On appeal, the Court of Appeals held that, for the trial court to convict defendant of second-degree escape under ORS 162.155(1)(c), the state had to prove that defendant knew that he was escaping from a correctional facility. The Court of Appeals observed that "the state presented no evidence that defendant knew, or circumstances existed under which he can be held to have known, that he was escaping from a correctional facility when he fled from the courtroom." Lane, 198 Or App at 181. The Court of Appeals therefore reversed the conviction for second-degree escape and remanded the case for entry of judgment of conviction for third-degree escape. (1) The state sought review, which we granted.

We first must determine whether, as the state argues, the courtroom qualified as a correctional facility for purposes of ORS 162.155(1)(c). If it did, we then must decide whether defendant possessed the requisite mental state to be convicted of second-degree escape under that statute.

ORS 162.155(1)(c) provides that "[a] person commits the crime of escape in the second degree if * * * [t]he person escapes from a correctional facility[.]" Other statutes define the key terms of ORS 162.155(1)(c). "'Escape' means the unlawful departure of a person from custody or a correctional facility." ORS 162.135(5). "'Correctional facility' means any place used for the confinement of persons charged with or convicted of a crime or otherwise confined under a court order[.]" ORS 162.135(2).

Previously, this court has suggested that a prisoner serving a sentence may be within a correctional facility during a court appearance, if the prisoner came to the courtroom from prison and is returning to prison after that court appearance. In State v. Palaia, 289 Or 463, 468, 614 P2d 1120 (1980), the defendant was an inmate of a correctional facility, but escaped from custody before entering a vehicle to return to prison following a court appearance. The court stated in dictum that, "[u]nder the facts of this case, the defendant could * * * have been charged and convicted of escape from a correctional facility." 289 Or at 469 (citing State v. Hutcheson, 251 Or 589, 447 P2d 92 (1968), in which convicted prisoner escaped from work release program). The defendant in Palaia was a prisoner both before and after his court appearance, which made it easier for the court to suggest that his escape while temporarily outside the prison was from a correctional facility. By that reasoning, wherever the prisoner goes, even if it is outside the prison, the prisoner still is deemed to be in a correctional facility.

Similarly, in State v. Smith, 277 Or 251, 257, 560 P2d 1066 (1977), this court stated in dictum:

"[T]he crime of 'escape' does not require that the act of escape be done or completed at the physical location of the jail, as in the case of a prisoner who escapes while on a work release program; * * * a prisoner is considered to be confined within a 'correctional facility' from the time of his original commitment until his lawful discharge." (2)

Both Palaia and Smith suggest that, for purposes of the "escape" statutes, a courtroom can be considered a correctional facility when a convicted prisoner serving a sentence in a correctional facility is transported to a courtroom or place of work temporarily, with the expectation that the prisoner will be returned to the correctional facility after the court appearance.

In contrast, third-degree escape consists merely of escaping from custody. ORS 162.145(1) ("A person commits the crime of escape in the third degree if the person escapes from custody"); see Palaia, 289 Or at 469 ("Escape from custody, without more, supports a conviction only under ORS 162.145, escape in the third degree."). "'Custody' means the imposition of actual or constructive restraint by a peace officer pursuant to an arrest or court order[.]" ORS 162.135(4).

Defendant, while conceding that he committed third-degree escape, argues that he did not commit second-degree escape because the courtroom did not qualify as a correctional facility. Instead, he contends that he merely was in custody. The state counters that defendant was constructively in a correctional facility once the trial court revoked his conditional release. The state emphasizes that defendant earlier had been in jail and then had been conditionally released and that he was to be returned to jail following the trial court's revocation of his release. In those circumstances, the state argues, the trial court constructively had returned defendant to jail (although defendant was physically in the courtroom) as soon as the trial court had revoked his conditional release. The state further argues that the trial court, in revoking defendant's release, established the courtroom as a place of "confinement" of defendant -- a person charged with a crime -- and the courtroom therefore was a correctional facility, as that term is defined in ORS 162.135(2), quoted above.

The first issue is whether a courtroom qualifies as a correctional facility for purposes of ORS 162.155(1)(c) when a judge orders that a defendant, who is present in the courtroom and had been on pretrial release, be remanded to the sheriff's custody, as the judge did here. For the reasons set out below, we conclude that, when Judge Thompson stated that defendant had been reduced to custody, he effectively established the courtroom as a correctional facility for purposes of ORS 162.155(1)(c). Before being remanded to custody at the hearing, defendant had enjoyed conditional release status and, during that period, he was neither in custody nor in a correctional facility. At the hearing, however, Judge Thompson informed defendant that he was "reduced to custody." In other words, Judge Thompson effectively told defendant that his pretrial release status had been revoked, that he was not free to leave the courtroom, and that he was required to go to the county jail pending trial.

Previous decisions by this court have stated that a person who is incarcerated following a conviction is constructively within a "correctional facility" even when he is not within the walls of the prison. Rather, as this court noted in Smith, such a person "is considered to be confined in a correctional facility from the time of his original commitment until his lawful discharge." 277 Or at 257. Here, defendant's incarceration, conditional release, and revocation of release all occurred before trial, rather than after conviction, as in Smith. In our view, however, that factual distinction is irrelevant to the interpretation and application of ORS 162.155(1)(c), which applies to any escape from a "correctional facility," whether the defendant is incarcerated before trial or following conviction. Defendant was confined at the time of his "original commitment"; after Judge Thompson revoked his conditional release, he returned to his former status. Defendant can hardly argue that, at that point, he had been "lawfully discharged" as this court used those words in Smith. Accordingly, when Judge Thompson ordered defendant's release revoked and that he be returned to jail, that order plainly "confined" defendant to the courtroom, under the authority of the deputy sheriff, thus constituting the courtroom a "correctional facility" for purposes of the second-degree escape statute. See ORS 162.135(2) ("Correctional facility" defined as "any place used for the confinement of persons * * * confined under a court order.").

In that respect, we note an additional fact that removes the issue from doubt: the presence of the deputy sheriff who had brought the codefendants to court. Those two codefendants clearly remained in constructive custody, and the sheriff was the symbol of that status. Judge Thompson's order placed defendant directly under the authority of the deputy sheriff, i.e., placed defendant in the same position as his two codefendants. And that position was, as we have noted, constructive custody in a correctional facility. We conclude that defendant, when he left the courtroom, escaped from a correctional facility under ORS 162.155(1)(c).

The second issue is whether the state proved that defendant had the necessary mental state regarding the element of "escaping from a correctional facility." Defendant argued, and the Court of Appeals agreed, that defendant's conviction for second-degree escape was invalid because ORS 162.155(1)(c) requires the state to prove that defendant "knowingly" escaped from a correctional facility, and the state failed to do so. We disagree, because the trial court correctly found that the evidence proved that defendant had possessed the appropriate mental state respecting that element of the crime.

The indictment in this case charged defendant with "knowingly" escaping from a correctional facility. Generally, "a person is not guilty of an offense unless the person acts with a culpable mental state with respect to each material element of the offense that necessarily requires a culpable mental state." ORS 161.095(2). Having alleged that defendant acted knowingly, the state was required to prove defendant's knowledge.

Sufficient evidence exists in this record from which the trial court could have concluded that defendant knowingly escaped from a correctional facility. At the earlier proceeding, Judge Thompson had allowed the state's motion to revoke defendant's release status, signed the order in defendant's presence, and told defendant that he had revoked defendant's release. To clarify the effect of his order, Judge Thompson repeatedly informed defendant that he had been "reduced to custody." It was clear from the judge's words that defendant was being returned to jail. And, in a behavioral acknowledgment of the fact that defendant realized that he was being returned to jail, he fled. The state was not required to prove that defendant understood the statutory definitions contained in ORS 162.155(1)(c) or the specific differences between escape from "custody" and escape from a "correctional institution." Defendant knew that he previously had been lodged in the Crook County Jail and that, based on the judge's order, the deputy sheriff from the jail, who was present in the courtroom, would transport defendant back to the jail immediately after the hearing. That evidence was sufficient to prove that the defendant knew that he was escaping from a location that was deemed to be a correctional facility.

We conclude that the courtroom from which defendant fled was a correctional facility within the meaning of ORS 162.155(1)(c) and that Judge Thompson in effect made the courtroom a correctional facility by directing that defendant be reduced to custody. We also are satisfied that, when defendant escaped, he was aware that he was escaping from what constructively was a correctional facility.

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

1. Defendant conceded that he was guilty of third-degree escape under ORS 162.145(1).

Return to previous location.

2. The legislature has specified that failing to return to a state Department of Corrections correctional facility from a work release program "[c]onstitutes an escape from a correctional facility under ORS 162.155." ORS 144.500(2)(b).

Return to previous location.

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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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