S53033 State v. Dinsmore

SUPREME COURT CASES

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State: Oregon

Docket No: CC9909234CR;CAA122052;SCS53033

Case Date: 11/24/2006

FILED: November 24, 2006

IN THE SUPREME COURT OF THE STATE OF OREGON

STATE OF OREGON,

Petitioner on Review,

KAREN RUTH DINSMORE,

Respondent on Review.

(CC 9909234CR; CA A122052; SC S53033)

On review from the Court of Appeals.*

Argued and submitted September 6, 2006.

Doug M. Petrina, Assistant Attorney General, argued the cause for petitioner on review. With him on the briefs were Hardy Myers, Attorney General, and Mary H. Williams, Solicitor General, Salem.

Robert M. McCrea, McCrea, PC, Eugene, argued the cause and filed the briefs for respondent on review.

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

DE MUNIZ, C. J.

The decision of the Court of Appeals is affirmed. The judgment of the circuit court is reversed, and the case is remanded to the circuit court for further proceedings.

*Appeal from Harney County Circuit Court, W. D. Cramer, Jr., Judge. 200 Or App 432, 116 P3d 226 (2005).

**Riggs, J., retired September 30, 2006, and did not participate in the consideration or decision of this case. Kistler and Walters, JJ., did not participate in the consideration or decision of this case.

DE MUNIZ, C. J.

This criminal case requires that we resolve two issues: (1) whether the trial court erred in reinstating charges that it previously had dismissed pursuant to a plea agreement between defendant and the state; and (2) whether breath test evidence that is inadmissible in a prosecution for driving under the influence is also inadmissible in a homicide prosecution arising from the same incident. Under the circumstances of this case, we answer both of those questions in the affirmative.

We take the facts from the record and the Court of Appeals' prior opinions in this case. In June 1999, defendant was driving her vehicle late at night on Highway 20 in Harney County when she collided with two other vehicles that were stopped on the highway waiting to turn left at an intersection. That collision killed the driver of one vehicle and severely injured the occupants of the other vehicle. At the on-scene investigation that followed, a police officer approached defendant to ask her about the collision and noticed a faint odor of alcohol on her breath. The officer began questioning defendant without first advising her of her Miranda rights, and defendant told the officer that she had consumed one beer approximately nine hours earlier. She also said that she had been using medications for high blood pressure and allergies. Shortly thereafter, the officer arrested defendant for reckless driving and driving under the influence of intoxicants (DUII). He then informed defendant of her Miranda rights. Defendant subsequently agreed to perform some field sobriety tests at the crash site and answered additional questions about the collision. The officer then drove defendant to the police station where she agreed to take a Breathalyzer test to establish the alcohol content of her blood. Although defendant asked to speak to an attorney and did so by telephone before taking the test, a police officer nevertheless remained within defendant's sight and hearing while that conversation took place. The Breathalyzer test showed, approximately four hours after the accident, that defendant had a blood alcohol content of .06.

The state charged defendant with second-degree manslaughter, ORS 163.125, third-degree assault, ORS 163.165, fourth-degree assault, ORS 163.160, DUII, ORS 813.010, and reckless driving, ORS 811.140. In response, defendant moved to suppress (1) the officer's observation that he had smelled alcohol on defendant's breath at the crash site; (2) defendant's statements to police authorities made during interviews at the crash site; (3) the results of defendant's field sobriety tests; and (4) the result of defendant's Breathalyzer test. Those pretrial motions were denied.

Before trial, however, the state and defendant negotiated a plea agreement. See ORS 135.405 (district attorney may engage in discussion with criminal defendant for purpose of reaching plea agreement). The written agreement, authored by the prosecution, provided, in part:

"In return for [defendant's] conditional plea of 'No Contest' pursuant to ORS 135.335(3) to the charge of Criminally Negligent Homicide (the lesser included charge of Count I), the State agrees to dismiss [the] remaining counts in the indictment. Pursuant to ORS 135.335(3), the defendant reserves the right to appeal the judgment of this court denying the pretrial motions filed by defendant."

(Emphasis added.) Defendant agreed to the prosecutor's terms and, in exchange, the state dismissed the remaining charges against her. The prosecutor later stated in an affidavit submitted to the trial court that "the issue of proceedings on remand did not arise except as addressed in ORS 135.335(3), to wit: That the defendant could withdraw her conditional no contest plea if she prevailed in the Court of Appeals."

After entering her plea, defendant pursued an appeal and was partially successful in that endeavor. Although the Court of Appeals rejected most of defendant's arguments, it did conclude that the trial court should have suppressed the statements that defendant had made during the police interview at the crash site before being given her Miranda warnings. State v. Dinsmore, 182 Or App 505, 49 P3d 830 (2002). Consequently, defendant sought, on remand, to withdraw her prior no contest plea to the criminally negligent homicide charge.

In response, the state requested that the trial court reinstate all the previously dismissed charges. The state argued that defendant's withdrawal of her original plea was a breach or repudiation of the parties' original bargain and that, as a result, the original plea agreement had been extinguished. The trial court agreed, ruling that

"[y]ou want the benefit of the bargain, of the plea agreement, then that's based upon maintaining the plea that you entered. You withdraw your plea, we in fact do go back to square one. All charges are reinstituted and we're proceeding, in this court's perspective, on all the charges."

Consistently with that ruling, the trial court reinstated the original charges against defendant and she pleaded not guilty to all of them.

Prior to trial, defendant once again moved to suppress evidence from the Breathalyzer test that she had taken while in police custody. The state conceded that the police officer's presence during defendant's telephone call to her lawyer before the test had violated defendant's right to a private consultation with counsel, see State v. Durbin, 335 Or 183, 63 P3d 576 (2003) (discussing right), and agreed that the result of the breath test could not be admitted to support the DUII charge. The state argued, however, that the result nevertheless could be used in conjunction with the other counts against defendant, such as the manslaughter charge. The trial court agreed with the state and held that the Breathalyzer test result was admissible for that purpose. At trial, a jury convicted defendant on all charges, including second-degree manslaughter.

Defendant once again appealed. She first argued that the state could not reinstate charges other than the criminally negligent homicide charge once the trial court had dismissed them pursuant to the plea agreement. She then argued that, in light of the state's concession that the result of her breath test was inadmissible with regard to the DUII charge, the trial court had erred in refusing to suppress that evidence with respect to the homicide charge as well. The Court of Appeals agreed with both arguments and remanded for a new trial. State v. Dinsmore, 200 Or App 432, 116 P3d 226 (2005). We subsequently allowed the state's petition for review to examine both of those issues.

On review, the state first contends that the trial court did not err in reinstating the state's original roster of charges against defendant. The specifics of that argument focus on what the state perceives to be the trial court's inherent authority to now proceed on defendant's original indictment and the Court of Appeals' impropriety in examining that authority on its own motion. There is, however, a more fundamental issue at play here, the resolution of which makes it unnecessary to address those particular arguments. As it has maintained throughout this case, the state again asserts on review that (1) defendant repudiated the plea agreement when she withdrew her "no contest" plea; and (2) reinstating the charges against defendant simply restored the status quo ante following defendant's breach of that agreement. As we explain below, however, the state is wrong in both respects, largely because it erroneously has conflated the statutory plea provisions of ORS 135.335(3) with the provisions of the plea agreement reached by the parties.

ORS 135.335(3) permits a defendant to plead guilty or no contest to a criminal charge while retaining the right to appeal adverse rulings on issues raised before trial. Should a defendant prevail on such an appeal, the statute expressly allows the defendant to withdraw the plea. The statute provides:

"With the consent of the court and the state, a defendant may enter a conditional plea of guilty or no contest reserving, in writing, the right, on appeal from the judgment, to a review of an adverse determination of any specified pretrial motion. A defendant who finally prevails on appeal may withdraw the plea."

(Emphasis added.) Before the addition of ORS 135.335(3) to Oregon's statutes in 1999, a criminal defendant who pleaded guilty or no contest to a criminal charge had a limited right of review on appeal. At that time, the only bases for appellate review following a guilty plea were that a sentence either (1) exceeded the maximum allowed by law; or (2) was unconstitutionally cruel and unusual. See ORS 138.050(1) (1997), amended by Or Laws 1999, ch 134, § 3 (so stating). Consequently, a defendant who, for example, was unsuccessful in pretrial efforts to suppress evidence, was required to enter a plea of not guilty and proceed to trial -- often a trial on stipulated facts -- to preserve the ability to contest the adverse pretrial ruling.

Today, however, under ORS 135.335(3), a criminal defendant -- with the consent of the trial court and the state -- may enter a conditional plea of guilty or no contest, litigate pretrial issues on appeal and then, if successful, later withdraw the plea. Under that option, the parties -- and with them, the trial courts -- save both time and resources by sidestepping proceedings conducted solely to facilitate the appeal of pretrial matters.

As the state correctly recognizes, ORS 135.335(3) anticipates a return to the status quo ante following a successful appeal and subsequent plea withdrawal; i.e., a defendant will face the same array of charges that he or she faced prior to entering the conditional plea. That is true, however, only because ORS 135.335(3) does not, by its plain terms, require the parties to exchange considerations -- such as dismissing some charges in exchange for a particular plea to others -- to implement a conditional plea. It is therefore no surprise that, when a conditional plea is entered as an expediency under ORS 135.335(3), the parties begin anew on the charges subject to the plea if the defendant's appeal is successful and the defendant opts to withdraw the conditional plea. To be clear, the only "condition" expressly associated with the conditional plea statute is the one allowing a defendant to withdraw a plea if the defendant's pretrial challenge is ultimately successful on appeal.

That, however, is not the case when the state and a defendant enter into a plea agreement that, by it terms, disposes of specific criminal charges. Such agreements are grounded in the bargain created by a mutually binding, quid pro quo exchange between the parties. As this court recently noted in State v. Tannehill, 341 Or 205, 211, 141 P3d 584 (2006),

"a plea often results from an agreement between the parties in which, 'in return for the defendant's admission of guilt on some or all of the charged offenses, the state agrees either to dismiss some of the charges or to recommend a reduced sentence.'"

(Quoting Gonzalez v. State of Oregon, 340 Or 452, 457, 134 P3d 955 (2006).) The terms of the resulting bargain define the parties' obligations to each other, while the bargain itself is part of a process that, as the United States Supreme Court has noted,

"must be attended by safeguards to insure the defendant what is reasonably due in the circumstances. Those circumstances will vary, but a constant factor is that when a plea rests in any significant degree on a promise or agreement of the prosecutor, so that it can be said to be part of the inducement or consideration, such promises must be fulfilled."

Santobello v. New York, 404 US 257, 262, 92 S Ct 495, 30 L Ed 2d 427 (1971).

In this case, it is undisputed that the plea agreement that the parties fashioned involved more than just a conditional plea entered pursuant to ORS 135.335(3). Both parties made major concessions to each other in reliance on their mutual promises. Under the terms of their agreement, the state agreed to dismiss all charges against defendant save one, in exchange for defendant's "conditional plea of 'No Contest' pursuant to ORS 135.335(3) to the charge of Criminally Negligent Homicide." As the prosecutor's trial affidavit made clear, defendant's right to withdraw her conditional plea if her appeal was successful was an integral and accepted part of that agreement. Defendant, in turn, waived a number of fundamental constitutional protections to plead to the remaining charge against her, knowing full well that, if her subsequent appeal was unsuccessful, she would be bound by her no contest plea.

Ultimately, defendant entered her conditional plea of no contest to the agreed-upon charge of criminally negligent homicide, and the state, as agreed, dismissed the other charges. Defendant, however, prevailed on appeal, and subsequently withdrew her plea, actions that were in keeping with the specific terms of the parties' agreement. As a result, the state's first argument that defendant's plea withdrawal constituted a repudiation of her plea agreement is unavailing. Indeed, withdrawal of the conditional plea as permitted by ORS 135.335(3) was one of the incentives that the state offered to defendant in exchange for her no contest plea. The state's second argument -- that reinstatement of all the charges against defendant simply restores the status quo ante following defendant's repudiation of the agreement -- is similarly unavailing. The status quo ante of the parties' relationship in this case was defined by the terms of the parties' agreement, and defendant fully has performed her end of that bargain. She did not breach the agreement, she remains fully within its ambit, and she is now entitled to enforce its terms. The trial court erred in ratifying the state's contrary position. Should the state go forward with its case against defendant, it must do so -- per its own agreement -- on the single charge of criminally negligent homicide.

We turn next to the question whether evidence of defendant's breath test is admissible in the criminally negligent homicide case that remains.

In State v. Spencer, 305 Or 59, 750 P2d 147 (1988), this court concluded that Article I, section 11, of the Oregon Constitution -- providing, among other things, that an accused person shall have the right to be heard in all "criminal prosecutions" -- gave arrested drivers who were asked to take Breathalyzer tests the right to a reasonable opportunity for consultation with legal counsel. In Spencer, this court was required to construe the phrase "criminal prosecutions" in Article I, section 11, and consider, in turn, (1) what constitutes a criminal prosecution, and (2) when do such proceedings begin. In answering those questions, the court wrote:

"A person taken into formal custody by the police on a potentially criminal charge is confronted with the full legal power of the state, regardless of whether a formal charge has been filed. Where such custody is complete, neither the lack of a selected charge nor the possibility that the police will think better of the entire matter changes the fact that the arrested person is, at that moment, ensnared in a 'criminal prosecution.' The evanescent nature of the evidence the police seek to obtain may justify substantially limiting the time in which the person may exercise his or her Article I, section 11, right, but it does not justify doing away with it."

Id. at 74. As a result, this court held that, under Article I, section 11, "an arrested driver has the right, upon request, to a reasonable opportunity to obtain legal advice before deciding whether to submit to a breath test." Id. at 74-75. The court then concluded that denial of that right required exclusion of the breath test result at trial. Id. at 76.

Although the criminal charge at issue in Spencer was a DUII, none of the observations that this court made in that case suggest that the principles announced there apply to only DUII prosecutions; indeed, the opposite is true. Here, it is undisputed that, at the time that police authorities were preparing to administer the Breathalyzer test to defendant, she had been "taken into formal custody by the police" and faced a "potentially criminal charge" that involved at least one fatality, not to mention the charges of DUII and reckless driving for which the arresting officer already had cited her. Having been formally taken into police custody, read her Miranda rights, and transported to a police station for further questioning, defendant's custody was, in fact, "complete," to use the parlance of Spencer. Moreover, as we already have noted, the state conceded that the police officer's presence during the telephone call violated defendant's right to a private consultation with her attorney and, by extension, violated her rights under Article I, section 11, as articulated in Spencer. The remedy for that violation of defendant's constitutional right is exclusion of the breath test result. Nothing in Spencer limited the scope of that case's holding or the scope of the remedy it provided. The state violated defendant's state constitutional right to counsel, and we therefore conclude that the result of defendant's breath test is inadmissible for all purposes, including the remaining homicide charge.

The decision of the Court of Appeals is affirmed. The judgment of the circuit court is reversed, and the case is remanded to the circuit court for further proceedings.

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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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