S53276 Hamilton v. Paynter

SUPREME COURT CASES

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State: Oregon

Docket No: CC03CV0551;CAA125029;SCS53276

Case Date: 12/07/2006

FILED: December 7, 2006

IN THE SUPREME COURT OF THE STATE OF OREGON

BRENDA HAMILTON,

Petitioner on Review,

GEORGE PAYNTER,
dba Seahawk Seafood;
CARVALHO FISHERIES, INC.;
and WILLIAM CARVALHO,

Respondents on Review.

(CC 03CV0551; CA A125029; SC S53276)

En Banc

On review from the Court of Appeals.*

Argued and submitted November 2, 2006.

David M. Hernandez, Hernandez & Associates, LLC, Bandon, argued the cause and filed the briefs for petitioner on review.

John L. Langslet, Martin, Bischoff, Templeton, Langslet & Hoffman, LLP, Portland, argued the cause for respondent on review George Paynter. With him on the brief was Camille Tourje.

Robert A. Ford, Kurtz, Ford & Johnson, LLP, Eugene, argued the cause and filed the brief for respondents on review Carvalho Fisheries, Inc., and William Carvalho.

W. Eugene Hallman, Hallman & Dretke, Pendleton, argued the cause and filed a brief on behalf of amicus curiae Oregon Trial Lawyers Association.

DE MUNIZ, C. J.

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

*On appeal from Coos County Circuit Court, Michael J. Gillespie, Judge. 204 Or App 119, 129 P3d 203 (2006).

DE MUNIZ, C. J.

In this case, we consider whether a payment to an injured party tolled the statute of limitations. The trial court dismissed the action, because it concluded that the payment did not toll the statute. The Court of Appeals affirmed. Hamilton v. Paynter, 204 Or App 119, 129 P3d 203 (2006). We hold that the payment did toll the statute of limitations, and we therefore reverse the decision of the Court of Appeals and the judgment of the circuit court.

Because the trial court granted a motion to dismiss the complaint, we treat the allegations in the complaint as true. See Juarez v. Windsor Rock Products, Inc., 341 Or 160, 163, 144 P3d 211 (2006) (on motion to dismiss, court "assume[s] the truth of all well-pleaded facts alleged in the complaint"). Brenda Hamilton, the petitioner on review, filed an action against defendants George Paynter, doing business as Seahawk Seafood; Carvalho Fisheries, Inc.; and William Carvalho. Hamilton's first amended complaint alleged three facts relevant to this appeal. First, it alleged that Hamilton had been injured on August 19, 2001, when defendant Paynter rear-ended her vehicle with a forklift owned by defendants Carvalho and Carvalho Fisheries. Second, the complaint alleged that, on November 2, 2001, defendants paid Hamilton $1,000 as a "partial payment" for the injuries that Hamilton had suffered in the accident. And finally, the complaint alleged that none of defendants ever gave Hamilton written notice of when the statute of limitations would expire on her cause of action.

Hamilton did not file her action until November 28, 2003, two years and three months after the accident.

Defendants moved to dismiss the complaint, contending that it was barred by the two-year statute of limitations in ORS 12.110(1). (1) Hamilton argued, however, that the $1,000 payment by defendants had tolled the statute of limitations. She relied on ORS 12.155 (quoted below), which tolls the statute of limitations if a "person" makes an "advance payment" without giving written notice of the expiration date of the statute of limitations.

Defendants responded that ORS 12.155 applied to only insurers who made advance payments. See Minisce v. Thompson, 149 Or App 746, 756, 945 P2d 582 (1997) (Court of Appeals concluded that "the advance payment statutes do not toll the statute of limitations outside the setting of third-party claims against insurers"). Because defendants were not insurers, defendants contended, ORS 12.155 did not toll the statute of limitations.

The trial court ruled for defendants, and Hamilton appealed. The Court of Appeals' majority relied on Minisce and affirmed. Hamilton, 204 Or App at 120. Judge Wollheim concurred separately on stare decisis grounds; he suggested, however, that Minisce incorrectly had interpreted ORS 12.155. Id. at 120-28 (Wollheim, J., concurring). We allowed review.

The question here involves the correct interpretation of ORS 12.155, and we begin with the text of that statute.

ORS 12.155 provides:

"(1) If the person who makes an advance payment referred to in ORS 31.560 or 31.565 gives to each person entitled to recover damages for the death, injury or destruction, not later than 30 days after the date the first of such advance payments was made, written notice of the date of expiration of the period of limitation for the commencement of an action for damages set by the applicable statute of limitations, then the making of any such advance payment does not suspend the running of such period of limitation. The notice required by this subsection shall be in such form as the Director of the Department of Consumer and Business Services prescribes.

"(2) If the notice required by subsection (1) of this section is not given, the time between the date the first advance payment was made and the date a notice is actually given of the date of expiration of the period of limitation for the commencement of an action for damages set by the applicable statute of limitations is not part of the period limited for commencement of the action by the statute of limitations."

The term "advance payment" is defined in ORS 31.550:

"As used in ORS 12.155 and 31.550 to 31.565, 'advance payment' means compensation for the injury or death of a person or the injury or destruction of property prior to the determination of legal liability therefor."

ORS 12.155 cross-references two other statutes, ORS 31.560 and ORS 31.565. (2) The first statute, ORS 31.560, provides that an advance payment on a personal injury or death claim does not constitute an admission of liability:

"(1) Advance payment made for damages arising from the death or injury of a person is not an admission of liability for the death or injury by the person making the payment unless the parties to the payment agree to the contrary in writing.

"(2) For the purpose of subsection (1) of this section, advance payment is made when payment is made with or to:

"(a) The injured person;

"(b) A person acting on behalf of the injured person with the consent of the injured person; or

"(c) Any other person entitled to recover damages on account of the injury or death of the injured or deceased person."

The second statute cross-referenced by ORS 12.155, ORS 31.565, similarly provides that an advance payment on a property damage claim does not constitute an admission of liability:

"Any advance payment made for damages arising from injury or destruction of property is not an admission of liability for the injury or destruction by the person making the payment unless the parties to the payment agree to the contrary in writing."

In this case, the parties do not dispute that the payment to Hamilton was an "advance payment" as defined in ORS 31.550. The dispute here turns on whether defendants were "person[s] who [made] an advance payment" within the meaning of ORS 12.155.

The Oregon Revised Statutes specifically define the word "person":

"As used in the statute laws of this state, unless the context or a specially applicable definition requires otherwise:

"* * * * *

"(5) 'Person' includes individuals, corporations, associations, firms, partnerships, limited liability companies and joint stock companies."

ORS 174.100. All the defendants are "persons" within that definition. Defendants, then, must identify some statutory context to show that the word "person," as used in ORS 12.155, has a different and narrower definition. See ORS 174.100 (its definition of "person" applies "unless the context * * * requires otherwise").

Defendants claim to find that context in the last sentence of ORS 12.155(1). That sentence requires that the notice of the statute of limitations "be in such form as the Director of the Department of Consumer and Business Services prescribes." Defendants note that the Department of Consumer and Business Services (DCBS) oversees insurers, not the general public. (3) Thus, they contend, ORS 12.155 must apply to only advance payments by insurers.

In our view, however, that sentence is entirely consistent with the broad definition of "person" found in ORS 174.100. The plain text of ORS 12.155 simply requires any "person who makes an advance payment," whether an insurer or not, to use the DCBS's form. The sentence that mandates use of a DCBS form does not "require[]" a narrower definition of the word "person." ORS 174.100.

Defendants do not identify any other context that would limit the meaning of the word "person" to "insurer." Defendants claim, however, that two prior decisions of this court support their argument. We conclude that both decisions are distinguishable and therefore give defendants no aid here.

Defendants first rely on Duncan v. Dubin, 276 Or 631, 556 P2d 105 (1976). In that case, this court concluded that the text and legislative history of ORS 12.155 and the related advance payments statutes showed that

"the legislation had a two-fold purpose. One was to allow an insurer to make advance payments without admitting liability for a claim and to encourage such payments by eliminating any apprehension on the part of the insurer that evidence of advance payments could be admissible in court to prove liability. The other objective, which is clearly discernible, was to protect an injured party from being misled into believing that a limitation period upon his claim is no longer applicable because the insurer has, in effect, acknowledged that its insured is liable for the claim."

Id. at 636. Duncan quoted the legislative testimony of a witness, the Insurance Commissioner, who discussed how ORS 12.155 would affect insurers. Id. at 637. (4)

Duncan, however, did not involve the question whether the term "person" in ORS 12.155 applied to noninsurers; the payment there had come from an insurer. Rather, the issue in Duncan concerned whether that insurer's advance payments solely for property damage had tolled the statutes of limitation for both property damage and personal injury damage. 276 Or at 636. The court concluded that it had. Id. at 637-38. That holding neither explicitly nor implicitly controls the result here.

Defendants note that the legislative history of ORS 12.155 quoted in Duncan -- the testimony of the Insurance Commissioner in favor of the act -- speaks of only advance payments by insurers. See 276 Or at 637 (setting out testimony) (quoted above, ___ Or at ___ n 4 (slip op at 7 n 4)). But the statutory text shows that, even if the legislature had a particular problem in mind, it chose to use a broader solution. As this court previously has observed,

"Statutes ordinarily are drafted in order to address some known or identifiable problem, but the chosen solution may not always be narrowly confined to the precise problem. The legislature may and often does choose broader language that applies to a wider range of circumstances than the precise problem that triggered legislative attention. * * * When the express terms of a statute indicate such broader coverage, it is not necessary to show that this was its conscious purpose."

South Beach Marina, Inc. v. Dept. of Rev., 301 Or 524, 531, 724 P2d 788 (1986) (footnote omitted).

In sum, Duncan did not hold that ORS 12.155 applies to only insurers, and the court's discussion in Duncan of legislative history does not justify the narrow reading of the text for which defendants argue. Duncan does not control the outcome of this case.

Defendants also argue that this court's decision in Ben Rybke Co. v. Royal Globe Insurance Co., 293 Or 513, 651 P2d 138 (1982), controls the result here. It is true, as defendant Paynter asserts, that the court in Ben Rybke did state that ORS 12.155 and the related advance payment statutes "make more sense if read to refer to claims against the insured." Id. at 519. We conclude that Ben Rybke does not control here, however, because that opinion dealt only with what constituted a "statute of limitations" under ORS 12.155. To explain why, we must explore the decision in some detail.

In Ben Rybke, the plaintiff was the insured on two fire insurance policies. See id. at 515 (plaintiff sought recovery from two insurers); id. at 517 (particular statute applied to only fire insurance policies). By statute (ORS 743.660), all fire insurance policies had to include a provision that required any action on the policy to be brought within one year of the date of loss. Id. at 517. After plaintiff's business had been damaged by fire, the insurers made advance payments. Id. at 515. Plaintiff, however, did not file an action against the insurers until more than one year after the fire. Id. The trial court, concluding that the statute of limitations barred the action, entered judgment for the insurers. Id.

On appeal, the Court of Appeals affirmed. Ben Rybke Co. v. Royal Globe Insurance Co., 55 Or App 833, 640 P2d 620 (1982). Based on the legislative history quoted in Duncan, the Court of Appeals concluded that the legislature had intended ORS 12.155 to apply to advance payments "made by an insurer to a person making a claim against its insured," not to advance payments between insurer and its own insured. Id. at 839-40. But, having said that, the Court of Appeals recognized that legislative purpose alone could not resolve the question before it: "The issue then is whether the words used will sustain a broader application of the statute." Id. at 840. The Court of Appeals concluded that the text of the statute did not support a broader application because ORS 12.155 and its related statutes repeatedly used terms that sounded in tort, while the dispute between the insurer and its insured in Ben Rybke sounded in contract. Id. at 841; see, e.g., ORS 12.155(1) (advance payment to "person entitled to recover damages for the death, injury or destruction"). "Plaintiff's action here is an action on the insurance contract; it is not an action 'for damages arising from injury or destruction of property' as between this plaintiff and its insurer." 55 Or App at 841 (emphasis in original; quoting renumbered version of ORS 31.565).

This court granted review and affirmed on other grounds. Ben Rybke, 293 Or at 513. While the Court of Appeals had affirmed because an action on an insurance contract was "not an action 'for damages arising from injury or destruction of property' as between this plaintiff and its insurer," 55 Or App at 841, this court affirmed because the one-year time limit was not a "statute of limitations" within the meaning of ORS 12.155. 293 Or at 520. Although ORS 743.660 required every fire insurance policy to include that one-year time limit, that statute

"is not a statute of limitations. It requires a particular contractual arrangement between the parties to insurance policies. It applies to those parties by operation of contract, whereas a statute of limitations applies to all plaintiffs by operation of statute."

293 Or at 518. Furthermore, "[t]he effect of ORS 743.660 is not to displace the statute of limitations, but only to take from insurers the power to contractually impose a shorter limitation of less than 12 months." Id.

The sentence in Ben Rybke upon which defendants rely in this case fell within the following paragraph (with the sentence emphasized):

"Arguably, the general purpose of ORS 12.155 might best be advanced by reading the phrase 'statute of limitations' to include alternative contractual provisions. If ORS 12.155 refers to insureds[,] it would be anomalous to permit an insurer to relieve itself of notice responsibilities under ORS 12.155 by the simple expedient of contractually reducing the limitation. That argument fails, however, because, as the Court of Appeals held, the terms of ORS 12.155 and the responsibilities imposed by it apply to third party claimants rather than to insureds. ORS 12.155 applies only to advance payments made pursuant to ORS [31.560] and [31.565]. If the ORS 12.155 phrase 'each person entitled to recover damages for the death, injury or destruction' is deemed ambiguous for failure to exclude insured persons absolutely, the constructional scales are tipped by reference to the latter two statutes. Their terms, while also not entirely immune from a larger construction, also make more sense if read to refer to claims against the insured. The elaborate constructional analysis in the opinion of Chief Judge Joseph for the Court of Appeals is apt on this point. We find simple reference to the sense of the words of ORS 12.155, [31.560] and [31.565] to be most persuasive. Moreover, the legislature could reasonably conclude that written advice of the applicable statute of limitations is desirable for the protection of a claimant other than the insured, but not as necessary for an insured who has already been given written advice of the contractual limitation in the policy itself. Those considerations reinforce our conclusion that the ORS 12.155 phrase 'statute of limitations' is to be given its plain meaning."

293 Or at 518-19 (footnote omitted; emphasis added).

In context, the sentence that defendants emphasize does not support a narrow interpretation of the statutory term "person." As in Duncan, this court in Ben Rybke discussed ORS 12.155 in the insurance context, but without deciding whether that statute reached other types of cases as well. The quoted paragraph from Ben Rybke explains why ORS 12.155 does not apply to claims between an insurer and its insured. The paragraph says little or nothing about when ORS 12.155 does apply.

To the extent that the parties and the Court of Appeals concluded that Duncan and Ben Rybke limited ORS 12.155 to insurers, they read too much into those opinions. Each of those cases involved a dispute between an insurance company and an insured; neither case suggested -- much less held -- that the term "person" in the statute extended to only insurance companies.

We thus agree with Hamilton. Defendants qualify as "person[s] who [made] an advance payment" under ORS 12.155(1), but, under the allegations of the complaint, they did not give timely written notice of the statute of limitations. ORS 12.155(2) thus tolled the statute of limitations. The trial court erred when it dismissed the complaint.

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

1. ORS 12.110 provides, in part:

"(1) An action * * * for any injury to the person or rights of another, not arising on contract, and not especially enumerated in this chapter, shall be commenced within two years * * *."

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2. Both of those statutes have been renumbered twice. ORS 31.560 was originally numbered as ORS 41.960 and later renumbered as ORS 18.520. ORS 31.565 was originally numbered as ORS 41.970 and later renumbered as ORS 18.530. The opinions quoted below often refer to those statutes by one or the other set of those numbers. To avoid confusion, we have altered those references to use the current statutory numbers.

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3. The Department of Consumer and Business Services is responsible for, among other things, administering the insurance laws. See, e.g., ORS 731.016 ("The Insurance Code * * * shall be administered and enforced by the Director of the Department of Consumer and Business Services to give effect to the policy stated in ORS 731.008.").

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4. Duncan quoted the following from the legislative history:

"Insurance Commissioner Bateson testified before the Senate Judiciary Committee on May 10, 1971, as follows:

"'Section 5 deals with a problem inherent in a complicated and extensive personal injury case where the insurance company makes advance disability payments. In that situation it would be entirely possible for the statute to run and then the company could say, "That's too bad; you didn't file suit and the statute of limitations has expired." House Bill 1299 therefore required that[,] within 30 days after advance payment is made, there must be a notification to the payee that the statute may be running and the making of the advance payment does not suspend it. If there is no such notice, the statute is tolled between the time of the first payment and the time the first notice is actually given.'"

276 Or at 637.

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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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