S53873 Towers v. Myers

SUPREME COURT CASES

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State: Oregon

Docket No: (SCS53873)

Case Date: 10/19/2006

FILED: October 19, 2006

IN THE SUPREME COURT OF THE STATE OF OREGON

ARTHUR TOWERS,

Petitioner,

HARDY MYERS,
Attorney General,
State of Oregon,

Respondent.

(SC S53873)

On petition to review ballot title.

Submitted on the record September 18, 2006.

Steven C. Berman, of Stoll Stoll Berne Lokting & Shlachter, PC, Portland, filed the petition and the reply for petitioner.

Steven R. Powers, Assistant Attorney General, Salem, filed the answering memorandum for respondent. With him on the answering memorandum were Hardy Myers, Attorney General, and Mary H. Williams, Solicitor General.

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

CARSON, J.

Ballot title referred to Attorney General for modification.

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

CARSON, J.

This ballot title review proceeding, brought under ORS 250.085(2), concerns the Attorney General's certified ballot title for a proposed initiative measure that the Secretary of State has denominated as Initiative Petition 28 (2008). Initiative Petition 28 proposes an addition to the Oregon Revised Statutes which, if adopted, would restrict the time period within which certain procedural challenges to initiated measures could be brought. Petitioner is an elector who timely submitted written comments to the Secretary of State concerning the Attorney General's draft ballot title and, therefore, is entitled to seek review of the resulting certified ballot title in this court. See ORS 250.085(2) (stating that requirement). We review the Attorney General's certified ballot title to determine whether it substantially complies with the requirements of ORS 250.035. ORS 250.085(5). For the reasons that follow, we conclude that it does not, and we refer the ballot title to the Attorney General for modification.

The proposed measure is set out in its entirety in the Appendix, and we briefly describe its substantive provisions here. If adopted, the proposed measure would require that all legal challenges to initiative measures asserting that a measure violates a "procedural requirement" of the Oregon Constitution be brought within "60 days after the date the Secretary of State approve[s] the petition for circulation." "Procedural" challenges not raised within that time period would be prohibited. The proposed measure further provides that

"'procedural requirements' shall include but not be limited to the single subject requirement, the separate vote requirement, the full text requirement, and the requirement that only the State Legislative Assembly may propose a revision of the Oregon Constitution." (1)

Additionally, the proposed measure would require that those procedural challenges be filed directly with this court and would establish a 90-day time period within which this court would be required to render its decision. If that time period passes without a decision respecting the procedural challenges raised, then those challenges would be deemed denied. Finally, the proposed measure would limit the effect that a procedural challenge could have. Specifically, the proposed measure provides that

"[a] challenge regarding the sufficiency or accuracy of * * * a measure's ballot title, ballot description, or official explanatory statement shall not be grounds for: (i) voiding signatures collected on the initiative petition, (ii) delaying or not canvassing the votes cast for or against the measure, or (iii) nullifying the passage of the measure."

The Attorney General certified the following ballot title for Initiative Petition 28:

"ELIMINATES POST-ELECTION CHALLENGES TO INITIATIVE'S LAWFUL PLACEMENT ON BALLOT; PROVIDES DIRECT, EXPEDITED SUPREME COURT REVIEW

"RESULT OF 'YES' VOTE: 'Yes' vote eliminates all post-election legal challenges to an initiative's lawful placement on ballot; provides direct, expedited Supreme Court review; sets timelines for pre-election challenges.

"RESULT OF 'NO' VOTE: 'No' vote retains current law allowing legal challenges both before and after an election on whether an initiative meets certain requirements for placement on ballot.

"SUMMARY: Under current law, lawsuits claiming that ballot measures fail to meet certain legal requirements in the Oregon Constitution for placement on ballot must be filed in circuit court within 60 days of time that Secretary of State approves the measure for circulation; challenges may also be filed after a measure passes under certain circumstances. Measure requires specified challenges to be filed within 60 days of date that Secretary of State approves the measure for circulation; eliminates specified post-election challenges. Measure requires legal challenges be filed directly with Oregon Supreme Court; challenge is deemed denied if not decided within 90 days of filing. Further judicial review is not allowed. Filing of such challenge would not delay approval of challenged measure to circulate for signatures. Other provisions."

Petitioner challenges the caption and the "yes" vote result statement. Petitioner's primary argument is that the phrase "lawful placement on ballot," which appears in both the caption and the "yes" vote result statement, is misleading. Petitioner also asserts that the caption and "yes" vote result statement exceed the applicable, statutorily established word limits because the Attorney General counted "hyphenated phrases" as one word, contrary to "the Attorney General's own internal policies and standards." For the reasons that follow, we agree with petitioner's first argument and decline to consider his second argument.

We begin by explaining our reasons for declining to consider petitioner's second argument. As noted, petitioner claims that the caption and "yes" vote result statement exceed their statutory word limits because "hyphenated phrases" used in those parts of the ballot title should be counted as two separate words. Assuming, but in no way deciding, that "hyphenated phrases" should be counted as two words, both the draft and certified ballot titles would fail to meet their statutory word limits. However, petitioner's written comments to the Secretary of State concerning the Attorney General's draft ballot title failed to raise any word count objection to the caption and "yes" vote result statement; petitioner raised that argument for the first time in his petition for review. By failing to raise his word count objection in his written comments to the Secretary of State, petitioner did not preserve that argument, and we decline to consider it. (2) See ORS 250.085(6) (failure to raise claim in written comments to Secretary of State generally precludes this court's consideration of it).

We turn now to petitioner's primary argument, that the caption and "yes" vote result statement are misleading. ORS 250.035(2)(a) requires that the caption of a ballot title contain a statement of not more than 15 words "that reasonably identifies the subject matter of the state measure." The caption is the "cornerstone for the other portions of the ballot title" and must identify the proposed measure's subject matter in terms that will not "confuse or mislead potential petition signers and voters." Mabon v. Myers, 332 Or 633, 637, 33 P3d 988 (2001). Additionally, the caption must not "understate or overstate the scope of the legal changes that the proposed measure would enact." Kain/Waller v. Myers, 337 Or 36, 40, 93 P3d 62 (2004).

As set out above, the caption provides:

"ELIMINATES POST-ELECTION CHALLENGES TO INITIATIVE'S LAWFUL PLACEMENT ON BALLOT; PROVIDES DIRECT, EXPEDITED SUPREME COURT REVIEW"

Petitioner argues that the phrase "lawful placement on ballot" is misleading because, "under the [proposed measure], no post-election challenge could be brought for an initiative that is either properly (meaning legally) or improperly (meaning illegally) placed on the ballot." We agree. The proposed measure purports to prohibit a certain class of "procedural" challenges that are not filed within "60 days after the date the Secretary of State approve[s] the petition for circulation." Thus, the practical effect of the proposed measure would be to prohibit any of those kinds of challenges from being brought after an election, whether or not the initiative being challenged was "lawfully" or "unlawfully" placed on the ballot. Under the proposed measure, whether a challenge is prohibited or not depends upon the type of claim raised in the challenge and its timing. Addition of the phrase "lawful placement on ballot" therefore is inaccurate in that it suggests a distinction that does not exist and could "confuse or mislead potential petition signers and voters." Mabon, 332 Or at 637. It follows that the caption does not "reasonably identif[y] the subject matter" of the proposed measure as required under ORS 250.035(2)(a).

ORS 250.035(2)(b) requires that a "yes" vote result statement describe, in "simple and understandable" terms, the "result" if the measure is approved. The Attorney General's "yes" vote result statement, like the Attorney General's caption, uses the phrase "lawful placement on ballot" and therefore suffers from the same defect that we identified respecting the caption. Consequently, the "yes" vote result statement does not describe accurately the "result" if the proposed measure is adopted and fails to meet the requirements of ORS 250.035(2)(b).

In conclusion, we hold that the caption and the "yes" vote result statement of the Attorney General's certified ballot title do not substantially comply with the requirements set out in ORS 250.035(2)(a) and (b). The ballot title is referred to the Attorney General for modification. See ORS 250.085(8) (authorizing that disposition).

Ballot title referred to Attorney General for modification.

APPENDIX

Be It Enacted by the People of the State of Oregon:

The following section shall be added to and made part of the Oregon Revised Statutes:

Section 1. Timing of procedural challenges to initiatives. It is the purpose of this 2008 Act to insure that legal challenges, which might nullify the legitimate petition signatures or votes of Oregon voters, not be filed or decided after the fact, but be brought only at the beginning of the process.

(a) A lawsuit or other legal challenge claiming that an initiative petition or ballot measure violates any of the procedural requirements of the Oregon Constitution may not be filed later than 60 days after the date the Secretary of State approved the petition for circulation.

(b) For purposes of this section, "procedural requirements" shall include but not be limited to the single subject requirement, the separate vote requirement, the full text requirement, and the requirement that only the State Legislative Assembly may propose a revision of the Oregon Constitution.

(c) A lawsuit or other legal challenge subject to this section shall be filed directly with the Oregon Supreme Court and decided expeditiously so as to minimize any wasted signature collection efforts. However, the filing of a legal challenge under this section shall not delay approval of the petition for circulation.

(d) If 90 days after the filing of a legal challenge under this section, the Court has not decided that an initiative petition violates one or more of the procedural requirements of the Oregon Constitution, the initiative petition shall be deemed to have complied with those requirements and no further review shall be made.

(e) A challenge regarding the sufficiency or accuracy of all or part of a measure's ballot title, ballot description, or official explanatory statement shall not be grounds for:

(i) voiding signatures collected on the initiative petition,

(ii)delaying or not canvassing the votes cast for or against the measure, or

(iii) nullifying the passage of the measure.

(f) This 2008 Act supersedes any pre-existing statute or rule conflicting herewith. If any phrase, clause or part of this Act is invalidated by a court of competent jurisdiction, the remaining phrases, clauses and parts shall remain in full force and effect.

1. Those "procedural requirements" can be found in the following provisions of the Oregon Constitution: Article IV, section 1(2)(d) (single-subject requirement and full-text requirement), Article XVII, section 1 (separate-vote requirement), and Article XVII, section 2(1) (only Legislative Assembly may propose revision of Oregon Constitution).

Return to previous location.

2. Upon referral, the Attorney General, nevertheless, may choose to consider petitioner's concern. See Carley/Towers v. Myers, 340 Or 222, 230 n 4, 132 P3d 651 (2006) (suggesting same).

Return to previous location.

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Filed: June 30, 2011 IN THE SUPREME COURT OF THE STATE OF OREGON In Re: Complaint as to the Conduct of J. MARK LAWRENCE, Accused. (OSB 08-115; SC S058778) En Banc On review of the decision of a trial panel of the Disciplinary Board. Argued and submitted May 2, 2011. Paula Lawrence, McMinnville, argued and cause and filed the briefs for accused. Stacy Hankin, Assistant Disciplinary Counsel, Tigard, argued the cause and filed the brief for the Oregon State Bar. PER CURIAM The complaint is dismissed. PER CURIAM The issue in this lawyer disciplinary proceeding is whether the accused, by releasing a partial transcript of a juvenile hearing to the press, violated Rule of Professional Conduct (RPC) 8.4(a)(4), which prohibits a lawyer from engaging in conduct that is prejudicial to the administration of justice. A trial panel found the accused guilty of violating RPC 8.4(a)(4) and suspended him for 60 days. We review the decision of the trial panel de novo. ORS 9.536(2); BR 10.6. Because we conclude that

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the Bar failed to prove by clear and convincing evidence that the accused's conduct caused prejudice to the administration of justice, we dismiss the complaint. The facts are straightforward and largely undisputed. In 2007, the accused represented a juvenile male who, along with another male friend, allegedly had touched or swatted several female classmates on the buttocks and had danced in front of the females in a lascivious manner. The incident occurred at the students' middle school. After being informed of the youths' behavior, the vice principal and a police officer interviewed the victims. Based on those interviews, the accused's client and his friend were arrested by a McMinnville Police Officer on February 22, 2007. On February 23, the Yamhill County Juvenile Department filed a delinquency petition alleging that the accused's client had committed acts that, if done by an adult, would have constituted five counts of first-degree sexual abuse and five counts of third-degree sexual abuse. At an initial detention hearing that same day, the court ordered the youths to remain in custody. The events giving rise to this disciplinary action arose out of a second detention hearing held on February 27, 2007, before Judge John Collins. The accused called two of the victims to testify on behalf of his client. The female victims testified that the youths were their friends and that they did not find the youths to be threatening in any way. Regarding the alleged sexual abuse, the female victims testified that the touching or swatting was not sexual in nature but rather was mere horseplay. The victims also testified that they felt pressured by the vice principal and the police officer to make the touching sound hurtful and uncomfortable when it was not. By the second detention hearing, the case was receiving substantial media 2

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attention. Judge Collins allowed the press to attend the detention hearing, but prohibited the press from recording the proceedings. The parties dispute whether the judge prohibited only video recordings or also prohibited audio recordings.1 A number of newspaper and television stories reported the events and testimony at the hearing. After the hearing, the accused obtained a copy of the official audio recording of the hearing and had a partial transcript prepared that contained the victims' testimony. In March 2007, a reporter contacted the accused about the February 27 hearing. The reporter, who was not present at the hearing, expressed disbelief that the female victims had felt pressured by the vice principal and the police officer to make the youths' actions seem sexual. The accused offered to give the reporter a copy of the partial transcript when it was available. The accused believed that it would have been improper to give the reporter the official audio recording of the hearing but thought that the transcript could be released. The accused contacted Deborah Markham, the deputy district attorney handling the case, to see if she objected to releasing the transcript. Markham told the accused that she believed that the court would have to consent. The accused then released the transcript to the reporter without obtaining permission from Judge Collins. Deputy District Attorney Deborah Markham testified that Judge Collins prohibited video recording. Judge Collins testified that he might have prohibited the press from recording the detention hearing, but that he did not remember whether he did so or not. He did remember allowing video recording at a later hearing in the proceeding. The accused testified that Judge Collins prohibited video recording but that he could not remember if the judge prohibited audio recording.
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When Judge Collins learned that the transcript had been released -following news reports that cited the transcript -- he called a meeting with Markham and the accused and told them to release no other transcripts. The testimony from the accused, Markham, and Judge Collins differs regarding that meeting. The accused described the meeting as relaxed and said that Judge Collins had stated that the release of the transcript was permissible. Markham testified that Judge Collins was "very concerned" about the release of the transcript and that Judge Collins said that the accused's disclosure violated the law. Judge Collins testified that the accused did not get his consent to release the transcript, but that he was not sure if the accused needed to do so under the circumstances of the case, particularly given the presence of the press at the hearing. In Judge Collins's description, the meeting was not contentious; although he requested that the parties refrain from releasing any additional transcripts, he did not "feel like [he] needed to be firm" and so did not issue an order barring further releases. In April 2008, several months after the juvenile case was resolved, Tim Loewen, director of the Yamhill County Juvenile Department, reported the accused's action of releasing the transcript to the Bar. After investigating the matter, the Bar charged the accused with violating RPC 8.4(a)(4)2 by releasing to the press "information
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RPC 8.4(a) provides, in relevant part: "It is professional misconduct for a lawyer to: "* * * * * "(4) engage in conduct that is prejudicial to the administration of

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appearing in the record" of a juvenile case without court consent, in violation of ORS 419A.255(1) and (3).3 The Bar alleged that the accused had "usurped" Judge Collins's authority to control the proceeding by not seeking the court's consent before releasing the transcript, and thereby had caused prejudice to the administration of justice. In the proceeding before the trial panel, the accused argued that his release of the transcript did not violate ORS 419A.255 for each of three independent reasons: (1) the transcript that he had prepared was not a part of the record of the case and so was not subject to ORS 419A.255; (2) Judge Collins had consented to the release of the information contained in the transcript when he allowed the press to attend and report on

justice[.]"
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ORS 419A.255 provides, in relevant part:

"(1) The clerk of the court shall keep a record of each case, including therein the summons and other process, the petition and all other papers in the nature of pleadings, motions, orders of the court and other papers filed with the court, but excluding reports and other material relating to the child, ward, youth or youth offender's history and prognosis. The record of the case shall be withheld from public inspection but is open to inspection by the child, ward, youth, youth offender, parent, guardian, court appointed special advocate, surrogate or a person allowed to intervene in a proceeding involving the child, ward, youth or youth offender, and their attorneys. The attorneys are entitled to copies of the record of the case. "* * * * * "(3) Except as otherwise provided in subsection (7) of this section, no information appearing in the record of the case or in reports or other material relating to the child, ward, youth or youth offender's history or prognosis may be disclosed to any person not described in subsection (2) of this section without the consent of the court * * * ."

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the hearing; and (3) the information in the transcript could be released under ORS 419A.255(5)(b) and (d), which list certain exceptions to the confidentiality of juvenile records. Even assuming that he did violate ORS 419A.255, the accused asserted, he did not violate RPC 8.4(a)(4), because his conduct was not prejudicial to the administration of justice. That was so, according to the accused, because the defendant and the victims supported releasing the transcript and because the information contained in the transcript had already been made public as a result of the press attending and reporting on the hearing. Thus, in the accused's view, no harm -- actual or potential -- resulted from his conduct. The trial panel found by clear and convincing evidence that the accused had violated RPC 8.4(a)(4) and suspended the accused from the practice of law for 60 days. The trial panel first determined that ORS 419A.255(3) prohibited the accused from releasing the partial transcript to the press without the consent of the trial court and that the accused had violated the statute in doing so. With little discussion, the trial panel then found that the evidence that the accused had violated the statute also was sufficient to show prejudice to the administration of justice and thus that the accused had violated RPC 8.4(a)(4). The accused sought review in this court. To prove a violation of RPC 8.4(a)(4), the Bar must prove (1) that the accused lawyer's action or inaction was improper; (2) that the accused lawyer's conduct occurred during the course of a judicial proceeding; and (3) that the accused lawyer's conduct had or could have had a prejudicial effect upon the administration of justice. See In re Kluge, 335 Or 326, 345, 66 P3d 492 (2003) (citing In re Haws, 310 Or 741, 746-48, 6

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801 P2d 818 (1990)) (so stating for identically worded former DR 1-102(A)(4)). Because we find the issue to be dispositive, we begin by examining the third element -- whether the accused's conduct had or could have had a prejudicial effect on the administration of justice -- and assume, without deciding, that the accused's conduct violated ORS 419A.255(3) and otherwise satisfied the test set out in Kluge and Haws. Prejudice to the administration of justice "may arise from several acts that cause some harm or a single act that causes substantial harm to the administration of justice." Kluge, 335 Or at 345. This court has identified two components to the "administration" of justice: "1) The procedural functioning of the proceeding; and 2) the substantive interest of a party in the proceeding." Haws, 310 Or at 747. "A lawyer's conduct could have a prejudicial effect on either component or both." Id. The Bar argues that the accused's conduct, a single act, resulted in prejudice to the administration of justice because it had the potential to cause substantial harm to the procedural functioning of the court. The Bar asserts, "Substantial potential harm to the administration of justice occurs whenever a lawyer interferes in or usurps the court's ability to do its job in a proceeding pending before it." The Bar states that the accused "usurped" the court's authority by not seeking Judge Collins's consent prior to releasing the transcript. The Bar cites three disciplinary cases to support its position that the accused's conduct resulted in substantial potential harm to the administration of justice. First, in In re Eadie, 333 Or 42, 36 P3d 468 (2001), this court found a violation of former DR 1-102(A)(4) where the accused lawyer submitted a proposed order containing a 7

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misrepresentation that was intended to influence the judge in changing the trial date. Id. at 58. That conduct substantially harmed the procedural functioning of the court because it resulted in the judge acquiescing to a trial date preferred by the accused and made it necessary for the judge to resolve a dispute resulting from the accused's misrepresentation and to redraft an order. Id. Second, in In re Morris, 326 Or 493, 953 P2d 387 (1998), this court concluded that the accused lawyer had engaged in a single act of conduct that had the potential to cause substantial harm, either to the procedural functioning of the court or to the substantive interests of the parties, when she knowingly filed a notarized document that she had altered. Id. at 502-03. Third, in In re Thompson, 325 Or 467, 940 P2d 512 (1997), this court found a violation of former DR 1-102(A)(4) where the accused lawyer physically confronted a judge after receiving an adverse decision. That conduct caused substantial harm to the administration of justice because the accused's ex parte communication with the judge "unfairly attack[ed] the independence, integrity, and respect due a member of the judiciary." Id. at 475. The conduct also had the potential to cause substantial harm, because it could have influenced the judge to change her decision or to recuse herself from the case. Id. In each of the preceding cases, the accused lawyer engaged in conduct that had the potential to disrupt or to improperly influence the court's decision-making process, Thompson, 325 Or at 475; that created unnecessary work for the court, Eadie, 333 Or at 58; or that had the potential to mislead the court, Morris, 326 Or at 503. Moreover, in Eadie and Morris, the accused lawyers made knowing misrepresentations to the court. Similarly, in Kluge, the accused lawyer's conduct in knowingly filing an 8

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untimely motion to disqualify the trial judge and then failing to serve the motion on opposing counsel caused prejudice to "the procedural functioning of the judicial system by imposing a substantial burden upon both opposing counsel and [the trial judge] to undo the accused's actions." 335 Or at 346. In this case, the Bar has made no showing, as required by Kluge and Haws, that the accused's conduct harmed the procedural functioning of the judicial system, either by disrupting or improperly influencing the court's decision-making process or by creating unnecessary work or imposing a substantial burden on the court or the opposing party. Nor has the Bar shown that his conduct had the potential to result in any of the above. Certainly, Judge Collins did not testify that the accused's actions interfered with Judge Collins's conduct of the juvenile proceeding. Although the Bar correctly asserts that ORS 419A.255 gives the trial court control over the release of protected information in a juvenile record -- and, as noted, we assume without deciding that the accused acted improperly in not seeking the trial court's consent -- the Bar's theory fails to take into account the fact that the information contained in the partial transcript that the accused released was presented in open court and had already been reported by the press.4 It is difficult to see how the accused's release of the same information, in the context of this case, had the potential to cause any harm to the proceeding, much less substantial harm.

Article I, section 10, of the Oregon Constitution grants members of the public, including the press, the right to attend juvenile hearings. State ex rel Oregonian Pub. Co. v. Deiz, 289 Or 277, 284-85, 613 P2d 23 (1980).

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See Kluge, 335 Or at 345 (prejudice to the administration of justice may arise from "several acts that cause some harm or a single act that causes substantial harm"). Indeed, the Bar makes no effort to show that the accused's conduct could have resulted in new information being made public or that the release of the partial transcript itself had any potential impact on the proceeding. In fact, after the press attended the hearing and the accused released the transcript, Judge Collins allowed members of the press to listen to the official audio recording of the hearing. Nevertheless, the Bar asserts that Judge Collins was sufficiently "concerned" about the release of the information to call the accused and Markham to his chambers to discuss the incident. The fact that Judge Collins was "concerned" and met with the accused and Markham does not, by itself, demonstrate the potential for substantial harm to the procedural functioning of the court. Judge Collins himself stated that, although "in a perfect world," he probably would not have wanted the transcript released, in the context of this case and the open court provision of Article I, section 10, of the Oregon Constitution, the release of the partial transcript was likely permissible without his consent because "if [the press is] * * * going to know the information and report the information, at least get it right." Judge Collins's testimony, then, does not demonstrate that the accused's conduct impacted the procedural functioning of the court, even if the accused's conduct was cause for "concern." Nor does the Bar offer any evidence to prove that the release of the partial transcript harmed the substantive interests of the accused's client, the victims, or the state. The accused released the transcript, with the support of his client, in response to an 10

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inquiry from the media and in order to respond to inaccuracies appearing in some media reports. The accused maintained the confidentiality of the victims' names in the transcript, referring to them by their initials, consistent with an earlier order by Judge Collins. In this proceeding, the accused also submitted letters from the two victims who testified (and their parents) that stated their support for the release of the partial transcript. Finally, there was no testimony from the Yamhill County Juvenile Department that the release of the partial transcript had any effect on its substantive interests or its ability to prosecute the case. The Bar appears, instead, to take the position that virtually any violation of a statute, rule, or court order that occurs during the course of a court proceeding and relates to the conduct or any procedural aspect of that proceeding necessarily is prejudicial to the administration of justice. The Bar asserts, in effect, that "substantial potential" harm is implicit in the accused's conduct. Our cases, however, require proof by clear and convincing evidence that an accused's conduct in a specific judicial proceeding caused actual or potential harm to the administration of justice and, when only one wrongful act is charged, that actual or potential harm must be "substantial." Kluge, 335 Or at 345; Haws, 310 Or at 748. Here, the Bar's evidence did not prove that substantial harm resulted or could have resulted from the accused's conduct. We conclude that the Bar has not proved by clear and convincing evidence that the accused violated RPC 8.4(a)(4). The accused's conduct did not result in such prejudice, because there is no evidence that the release of the partial transcript, which contained solely information already presented in open court and reported by the press, 11

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harmed the procedural functioning of the judicial system. Nor is there any evidence that the substantive rights of the accused's client, the other juvenile defendant, the victims, or the state were harmed. "Prejudice to the administration of justice" requires such a showing. Haws, 310 Or at 747-48. The complaint is dismissed.

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