S53429 State v. Howard/Dawson

SUPREME COURT CASES

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State: Oregon

Docket No: CC01122854;CAA121011(Control)

Case Date: 04/26/2007

FILED: April 26, 2007

IN THE SUPREME COURT OF THE STATE OF OREGON

STATE OF OREGON,

Respondent on Review,

SHARON DAWN HOWARD,

Petitioner on Review.

(CC 01122854; CA A121011 (Control))

STATE OF OREGON,

Respondent on Review,

GARY DEAN DAWSON,

Petitioner on Review.

(CC 01122853; CA A121012; SC S53429)
(Cases Consolidated)

On review from the Court of Appeals.*

Argued and submitted November 7, 2006.

Patrick M. Ebbett, of Chilton, Ebbett & Rohr, LLC, Portland, argued the cause and filed the briefs for petitioners on review.

Douglas F. Zier, Assistant Attorney General, Salem, argued the cause and filed the brief for respondent on review. With him on the brief were Hardy Myers, Attorney General, and Mary H. Williams, Solicitor General.

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

KISTLER, J.

The decision of the Court of Appeals and the judgment of the circuit court are affirmed.

*Appeal from Linn County Circuit Court, Carol R. Bispham, Judge. 204 Or App 438, 129 P3d 792 (2006).

**Carson, J., retired December 31, 2006, and did not participate in the decision of this case. Linder, J., did not participate in the consideration or decision of this case.

KISTLER, J.

The question in this case is whether Article I, section 9, of the Oregon Constitution prohibits the police from engaging in a warrantless search of garbage that a sanitation company had picked up in the regular course of business and turned over to the police. The Court of Appeals held that, because defendants did not retain a possessory or privacy interest in the garbage once the sanitation company picked it up, the trial court correctly denied defendants' motion to suppress the evidence resulting from the search. State v. Howard/Dawson, 204 Or App 438, 129 P3d 792 (2006). We allowed review and now affirm the Court of Appeals decision and the trial court's judgment.

The relevant facts are straightforward. The police learned that Sharon Howard had made multiple purchases of iodine -- a chemical used to manufacture methamphetamine. Based on that information, a police officer spoke with the sanitation company that regularly picked up Howard's garbage from her home and asked whether the company would turn Howard's garbage over to him after the company had collected it. The company agreed to do so and, on two different occasions, gave the garbage that it had picked up on the regularly scheduled collection day to the police officer. Based on information that the officer gleaned from that garbage, the police applied for and received a warrant to search Howard's home. During that search, the police uncovered additional evidence of drug manufacturing and use.

The state charged Howard and Gary Dawson, a resident of Howard's home, with manufacturing and possessing methamphetamine and also with frequenting a place where controlled substances are used. Before trial, defendants moved to suppress the evidence that the police had obtained both from the garbage and from the resulting search of Howard's home. At the hearing on that motion, defendants testified that they had not expected that the police would look through their garbage. They recognized, however, that they lost control over their garbage once the sanitation company picked it up. As Dawson testified, "once the trash leaves your house * * * you have no control over anything the trash man does to your garbage."

Based on that and other evidence, the trial court found that, when defendants left their garbage for the sanitation company to collect, "there [wa]s an intent to give up ownership." That is, the trial court found that defendants relinquished their ownership in the garbage once the sanitation company collected it. The trial court reasoned that, when the sanitation company later permitted the police to look through the garbage, the police did not invade any constitutionally protected possessory or privacy interest that defendants retained in the garbage. The court denied defendants' motion to suppress, and the case went to the jury, which found defendants guilty of the charged offenses.

The Court of Appeals, sitting en banc, affirmed the trial court's judgment. Howard/Dawson, 204 Or App at 449. The majority concluded that defendants had relinquished their possessory interests in the garbage and, as a result, their privacy interests as well. Id. at 443-44. In the majority's view, defendants had no basis to object to the sanitation company's decision to permit the police to search the garbage, and the subsequent search did not infringe any constitutionally protected interest that defendants retained. Id. The dissent reached a different conclusion. It reasoned that the police had invaded a protected privacy interest because the officers' acts, "if engaged in wholly at the discretion of the government, will significantly impair the people's freedom from scrutiny." Id. at 450 (Schuman, J., dissenting) (internal quotation marks omitted) (quoting State v. Campbell, 306 Or 151, 171, 759 P2d 1040 (1988)). We allowed review to consider the state constitutional issue that divided the Court of Appeals. (1)

Article I, section 9, of the Oregon Constitution provides in part: "No law shall violate the right of the people to be secure in their persons, houses, papers, and effects, against unreasonable search, or seizure." As its terms imply, Article I, section 9, applies only when government officials engage in a "search" or a "seizure." State v. Owens, 302 Or 196, 205-06, 729 P2d 524 (1986). "A 'search' occurs when a person's privacy interests are invaded," and a "'seizure' occurs when there is a significant interference with a person's possessory or ownership interests in property." Id. at 206-07. When, as in this case, the police act without a warrant and no exception to the warrant requirement applies, the question whether the police have violated Article I, section 9, reduces to whether the officers' acts invaded either a constitutionally protected possessory or privacy interest.

We note, as an initial matter, that defendants do not argue on review that they retained either an ownership or a possessory interest in the garbage once the sanitation company picked it up. (2) It follows that, if defendants had no ownership or possessory interest in the garbage once the sanitation company collected it, the officers did not seize the garbage in violation of defendants' Article I, section 9, rights; that is, the officers did not interfere, significantly or otherwise, with defendants' ownership or possessory interests. See Owens, 302 Or at 207 (explaining that a seizure occurs when government officials significantly interfere with a person's "possessory or ownership interests in property"). Rather, the sanitation company lawfully possessed the property once it collected it. See Haslem v. Lockwood, 37 Conn 500 (1871) (citizen who raked into piles horse manure abandoned on public thoroughfare lawfully possessed it as against other citizens). If any entity had a constitutionally protected possessory interest, it was the sanitation company but that company voluntarily turned the property over to the police.

Defendants focus on review solely on the question whether they retained a protected privacy interest in the garbage, the invasion of which would give rise to a "search." See Owens, 302 Or at 206 (defining a search as an invasion of a protected privacy interest). On that issue, as we noted above, defendants do not contend that they retained an ownership or possessory interest in the garbage once the sanitation company picked it up. Similarly, they have not identified any other subconstitutional right or relationship that would prohibit the sanitation company from doing what it did here. For instance, defendants have not claimed that their contract with the sanitation company limited what the company could do with the garbage once the company took possession of it.

On this record, defendants retained no more right to control the disposition of the garbage once they turned it over to the sanitation company than they would had they abandoned it. As this court consistently has recognized, a person retains no constitutionally protected privacy interest in abandoned property. See State v. Purvis, 249 Or 404, 410-11, 438 P2d 1002 (1968) (holding that, under Article I, section 9, a person has no constitutionally protected privacy interest in abandoned property); State v. Crandall, 340 Or 645, 653, 136 P3d 30 (2006) (reaffirming Purvis). Indeed, we do not see a material distinction between the facts in this case and the facts in Purvis.

In Purvis, a police officer asked the hotel staff to keep the trash that they collected from the defendant's hotel room separate and then to give that trash to the officer. 249 Or at 405. Looking through the trash that the staff had turned over to him, the officer discovered evidence of the defendant's illegal drug use. Id. at 406. Although the defendant in Purvis argued that the police had invaded his privacy rights in violation of the state and federal constitutions, this court held otherwise. The court began by recognizing that the "[d]efendant's claim to privacy terminated with respect to items discarded by him and which he impliedly authorized to be hauled away." Id. at 410. As the court explained, "the objects which [the] defendant deposited in the ash trays and waste baskets can be regarded as abandoned property," in which he retained no protected privacy interest. (3) Id. at 411.

In this case, when defendants turned the garbage over to the sanitation company without any restriction on its disposition, they effectively abandoned that property in the same way that the defendant in Purvis did. Because the defendants in this case retained no greater protected privacy interest in the garbage than the defendant in Purvis did, the police did not violate defendants' Article I, section 9, rights when they looked through it.

The dissenting opinion in the Court of Appeals, which defendants appear to adopt, would have reached a different conclusion. The dissenting opinion reasoned that, under this court's decision in Campbell, the officers' acts invaded a constitutionally protected privacy interest because those acts, "if engaged in wholly at the discretion of the government, will significantly impair the people's freedom from scrutiny." Howard/Dawson, 204 Or App at 450 (Schuman, J., dissenting) (internal quotation marks omitted) (quoting Campbell, 306 Or at 171). As this court recognized in Campbell, however, the freedom from scrutiny that Article I, section 9, protects turns in large part on "social and legal norms of behavior." Campbell, 306 Or at 170; cf. State v. Meredith, 337 Or 299, 306-07, 96 P3d 342 (2004) (explaining that freedom from scrutiny turns on the applicable legal and factual context in which the government acts).

Here, the legal relationship between defendants and the sanitation company effectively controls the question whether defendants retained a constitutionally protected privacy interest in the garbage. See State v. Cook, 332 Or 601, 607-08, 34 P3d 156 (2001) (recognizing that proposition). To be sure, the privacy that Article I, section 9, protects is not necessarily coextensive with property law. Compare State v. Dixon/Digby, 307 Or 195, 211-12, 766 P2d 1015 (1988) (the presence of a trespass does not necessarily mean that police officers have invaded a constitutionally protected privacy interest), with Campbell, 306 Or at 169 (the absence of a trespass does not necessarily mean that the police officers have not invaded a constitutionally protected privacy interest). Rather, the degree to which property law informs questions of privacy varies with the context in which the challenged action occurs. In this context, the court has recognized that, when a person gives up all rights to control the disposition of property, that person also gives up his or her privacy interest in the property in the same way that he or she would if the property had been abandoned. See Purvis, 249 Or at 410-11 (recognizing that proposition).

Defendants advance an alternative argument. They note that, as they testified at the suppression hearing, they did not expect that the sanitation company would look through their garbage or permit someone else to do so. However, we need not decide whether defendants' subjective expectations were reasonable because, as this court has explained, "the privacy protected by Article I, section 9, is not the privacy that one reasonably expects but the privacy to which one has a right." Campbell, 306 Or at 164 (emphasis in original). It follows that defendants' subjective expectations are not necessarily dispositive to our analysis under Article I, section 9. Indeed, the defendant in Purvis may have expected that the hotel staff would dispose of his trash without inspecting it or permitting the police to do so. The court's holding in Purvis did not turn on that expectation, however. It turned instead on the proposition that, in effectively abandoning his interests in the property, the defendant gave up any right to control its disposition and, as a result, any protected privacy interest in it. That holding applies with equal force here. The officer did not violate defendants' Article I, section 9, rights when he examined the garbage that the sanitation company had collected from defendants and turned over to him.

The decision of the Court of Appeals and the judgment of the circuit court are affirmed.

1. Because the Fourth Amendment to the United States Constitution does not prohibit the police from searching a person's garbage after the sanitation company has collected it, California v. Greenwood, 486 US 35, 108 S Ct 1625, 100 L Ed 2d 30 (1988), defendants have based their argument solely on Article I, section 9, of the Oregon Constitution.

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2. A person may have a right to possess property that he or she does not own. See Wisbey v. Nationwide Mut. Ins. Co., 264 Or 600, 603, 507 P2d 17 (1973) (recognizing that the plaintiff lawfully could have possessed a car without owning it). In this case, the trial court found that defendants had relinquished their ownership interests in the garbage, and defendants have not claimed that they retained any possessory interest in the garbage.

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3. The court was careful to make clear in Purvis that the police could not have entered the defendant's hotel room without a warrant or an exception to the warrant requirement to look through his garbage. See 249 Or at 411 (explaining that, although entering the room would not violate any privacy interest that the defendant retained in the trash, it would violate his right to privacy in the room). Similarly, in this case, the officers waited until the sanitation company had removed defendants' garbage from Howard's property before examining it.

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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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