S056041, Opinion — In re Hendrick

98
Argued and submitted December 10, 2008, case remanded to Disciplinary Board
for appointment of new trial panel to hear charges against the accused
April 2, 2009
In re Complaint as to the Conduct of
R. KEVIN HENDRICK,
Accused.
(OSB 06-110; SC 8056041)
208 P3d 488

Cite as 346 Or 98 (2009) 	99
CJS, Attorney and Client § 88.
En Banc
On review of the decision of a trial panel of the Disciplinary
Board.
Mary A. Cooper, Assistant Disciplinary Counsel, Tigard,
argued the cause and filed the brief for the Oregon State Bar.
Andrew P. Ositis, Salem, argued the cause and filed the
brief for the accused.
PERCURIAM
The case is remanded to the Disciplinary Board for the
appointment of a new trial panel to hear the charges against
the accused.
Kistler, J., dissented and filed an opinion, in which
Linder, J., joined.

100 	In re Hendrick
PERCURIAM
The issues in this lawyer disciplinary proceeding are
whether the Oregon State Bar (Bar) committed a procedural
error in connection with the accused's disciplinary proceed-
ing and, if it did, whether the remedy for such an error is dis-
missal of the charges against the accused. For the reasons
that follow, we conclude that the Bar did commit a procedural
error, but that the appropriate remedy is to remand the case
for a hearing before a new trial panel.
In October 2006, the Bar filed a complaint against
R. Kevin Hendrick (the accused), charging him with various
violations of the Rules of Professional Conduct (RPC). In
January 2007, the Disciplinary Board appointed a trial panel
to hear the Bar's case against the accused. The accused and
the Bar each made a peremptory challenge to a member of
the trial panel pursuant to Bar Rule of Procedure (BR) 2.4(g),
set out post 346 Or at 103; in each instance, the Disciplinary
Board replaced the challenged member. After the replace-
ment trial panel members were appointed, the hearing was
scheduled for July 24 - 25, 2007.
On July 10, 2007, the Bar sent a letter to the
accused's lawyer explaining that, before the hearing, it
intended to deliver to the accused and to the trial panel note-
books that contained the exhibits on which the Bar intended
to rely at the hearing. The Bar requested that the accused
review the exhibits and notify it of any objections that the
accused might have. The accused did not make any objection
to that procedure at that time. On July 17, 2007, the Bar sent
the accused and the trial panel a copy of its trial memoran-
dum. In the cover letter accompanying that document, the
Bar informed the trial panel that it would be providing the
trial panel and the accused with the notebook of proposed
exhibits before the hearing, and again asked the accused's
lawyer to notify it of any objections that the accused might
have to any of those exhibits. Again, the accused offered no
objection either to the delivery of the trial memorandum or to
the Bar's plan to deliver its proposed exhibits to the trial
panel in advance of the hearing. On July 19, 2007, the Bar
hand-delivered the exhibit notebooks to the trial panel and to
the accused. Again, the accused did not object.

Cite as 346 Or 98 (2009) 	101
On July 24, 2007, the first day of the hearing, the
accused filed a motion to dismiss the charges, claiming that
the Bar's early delivery of the exhibit notebooks constituted
an improper ex parte communication with the trial panel.
The trial panel denied the accused's motion, asserting that
the communication was not ex parte because the Bar had pro-
vided the accused with the same documents, at the same
time, as it had the trial panel. The panel also noted that the
accused had had advance notice of the Bar's intent to serve
the exhibit notebooks and had not objected.
The hearing proceeded. At some point, a document
was introduced into evidence that revealed to one of the trial
panel members that she had opposed the accused in another,
possibly related, matter. After a brief conversation off the
record involving Bar counsel, the accused, and the accused's
counsel about the possible conflict, the parties elected not to
proceed with the existing trial panel. The trial panel chair-
person closed the hearing and dismissed the trial panel,
announcing that "a new panel needs to be appointed."
In August 2007, the Disciplinary Board appointed a
new trial panel. The new panel did not include any of the for-
mer panel members. Five days later, the accused served
notice that he intended to challenge peremptorily one of the
new trial panel members. The Bar objected, noting that the
accused previously had exercised a peremptory challenge to a
member of the former trial panel and asserting that, under
the relevant Bar rule, the accused was not entitled to an addi-
tional peremptory challenge. The accused responded that the
appointment of a new trial panel entitled him to a new per-
emptory 	challenge. 	The 	Disciplinary Board 	chairperson
rejected the accused's argument, disallowed the peremptory
challenge, and notified the parties that a panel consisting of
the three members appointed in August 2007 would hear the
case.
A hearing before the new trial panel was scheduled
for February 2008. This time, the Bar did not distribute its
exhibit notebooks in advance and the new trial panel did not
see the exhibits until the trial date. The hearing proceeded.
On March 31, 2008, the panel issued its opinion, which was
adverse to the accused in some respects. The accused then

102 	In
sought review by this court pursuant to ORS 9.536(1) and
BR 10.1.
On review, the accused does not raise directly any
issue concerning the substance of the trial panel's decision.
Instead, the accused argues that two alleged procedural
errors by the trial panel so deprived him of important proce-
dural rights that this court should dismiss the entire discipli-
nary action against him. The accused contends, first, that the
Bar violated his due process rights by engaging in ex parte
contacts with the first trial panel and, therefore, the first trial
panel 	should 	have 	dismissed the 	charges 	against him.
Second, the accused argues that he was improperly denied
the right to exercise a peremptory challenge to a member of
the second trial panel and, therefore, this court should dis-
miss the charges against him. As we shall explain, we find no
merit in the accused's first claim, but some merit in the
second.
With respect to the accused's first argument (con-
cerning the Bar's allegedly improper ex parte communica-
tions with the first trial panel), the accused argues at some
length why he thinks that the Bar's conduct in delivering its
exhibits to the trial panel in advance of the disciplinary pro-
ceeding violated the Bar's rules for the conduct of such pro-
ceedings and why ex parte communications with a factfinder
are not permissible. However, in making those arguments,
the accused neglects several key points, any one of which is
fatal to his position. We discuss fully only the most funda-
mental one.
That fundamental point is that the Bar's communi-
cations with the trial panel were not ex parte. Black's Law
Dictionary defines the phrase ex parte as follows: "Done or
made at the instance and for the benefit of one party only,
and without notice to, or argument by, any person adversely
interested; of or relating to court action taken by one party
without notice to the other, usu. for temporary or emergency
relief." Black's Law Dictionary 616 (8th ed 2004). Thus, an
essential feature of an ex parte communication is that it is
made without notice to the opposing party. Here, documents
attached to the accused's own opening brief show that the
Bar fully apprised the accused of its intent to provide the trial

Cite as 346 Or 98 (2009) 	103
panel with an advance copy of its exhibits and that, when it
did so, it also provided the accused with copies of everything
that it gave the trial panel. The Bar did not engage in ex parte
communications with the trial panel. The accused's argu-
ment in that respect is not well taken. 1
The accused's second argument is that the regional
chairperson in charge of ruling on challenges to members of
trial panels erred in failing to permit him under BR 2.4(g) to
exercise a peremptory challenge to a member of the second
trial panel, that the error was prejudicial, and that the
charges against him therefore should be dismissed. We set
out certain details of the trial panel appointment process to
explain our analysis of the accused's argument.
The Bar's Disciplinary Board consists of a state
chairperson, six regional chairpersons, and at least six addi-
tional members from each of the regions. BR 2.4(a). When the
Bar files a formal complaint and Bar Counsel notifies the
Disciplinary Board of that filing, BR 4.l(a), the regional
chairperson "appoint[s] a trial panel from the members of the
regional panel and a chairperson thereof." BR 2.4(£)( 1).
Once "a trial panel" has been appointed, both the
accused and the Bar may, under BR 2.4(g), challenge the par-
ticipation of members of that trial panel. That section is at
the heart of our inquiry. It provides, in part:
"The Bar and an accused * * * shall be entitled to one per-
emptory challenge and an unlimited number of challenges
for cause as may arise under the Code of Judicial Conduct
or these rules. Any such challenge shall be filed in writing
within seven days of written notice of an appointment of a
trial panel with the Disciplinary Board Clerk, with copies to
the regional chairperson for disciplinary proceedings * * *.
Challenges for cause shall state the reason for the chal-
lenge. The written ruling on the challenge shall be filed
with the Disciplinary Board Clerk, and the regional chair-
person * * * shall serve copies of the ruling on all parties.
These provisions shall apply to all substitute appointments,
except that neither the Bar nor the accused shall have more
than [one] peremptory challenge.***."
1 The accused's argument also fails because the Bar's communication was to a
separate trial panel that did not decide his case.

104 	In re Hendrick
The accused concedes that the rule, read in isolation,
is silent as to whether the "one peremptory challenge" limi-
tation in BR 2.4(g) applies to each appointed trial panel,
when two or more trial panels have been appointed serially,
or, instead, applies to the case as a whole. But, he argues,
when the rule is read in context with BR 2.4(h), which directs
the Disciplinary Board Clerk to "mail to the trial panel finally
selected" a copy of all pleadings, and then directs the trial
panel chairperson promptly to select a date and place for the
hearing, it becomes clear that the rule applies to each
appointed trial panel. The Bar, on the other hand, argues
that BR 2.4(g) is not silent on the matter because it states
specifically that its provisions concerning challenges "shall
apply to all substitute appointments, except that neither the
Bar nor the accused shall have more than [one] peremptory
challenge." The Bar argues that the second panel was a "sub-
stitute appointment ('for cause') of all members of the first
trial panel." (Emphasis in original.) And, the Bar explains,
BR 2.4(g) specifically provides that, no matter how many sub-
stitute appointments are made, each side may exercise only
one peremptory challenge.
We agree with the accused that BR 2.4(g) does not
clearly specify whether the allocation of one peremptory chal-
lenge per side applies to the case as a whole or to each sepa-
rate appointment of a complete trial panel, in cases in which
separate, successive trial panels are appointed. On the other
hand, we agree with the Bar that the wording in BR 2.4(g) on
which it relies could, at least when read in isolation, justify
the outcome that the Bar seeks. But we do not think that it is
appropriate to read the wording on which the Bar relies in
that way.
The reason that we do not find the wording on which
the Bar relies dispositive is that other wording of the rule
supports a contrary conclusion. The right to a peremptory
challenge does not arise until "a trial panel" has been
appointed. BR 2.4(g) specifies that "[a]ny such challenges
shall be filed in writing within seven days of written notice of
an appointment of a trial panel." (Emphasis added.) The
emphasized wording just as easily could be read to mean
"any" trial panel (the accused's reading) as it could be read to
mean "the one and only" trial panel (as the Bar would have

Cite as 346 Or 98 	105
it). Thus, both parties have legitimate-but hardly conclu-
sive-arguments to support their positions.
As noted, the Bar argues that there is separate con-
textual support for its view in this further provision of BR
2.4(g): "These provisions shall apply to all substitute appoint-
ments, except that neither the Bar nor an accused * * * shall
have more than [one] peremptory challenge." (Emphasis
added.) The Bar argues, in effect, that the second trial panel
was a "substitute" for the first, so that the accused is fore-
closed from making a peremptory challenge to any member of
the second trial panel. The accused responds that the refer-
ence to "substitute appointments" in the rule is a reference to
the replacement of a member of an existing trial panel, i.e.,
that the wording is intended to make it clear that the right to
challenge a member of a trial panel includes the right to chal-
lenge a substitute member, if the challenging party has not
already exercised its peremptory challenge by the time that
the substitute panel member is appointed.
In interpreting a Bar rule, this court looks to the
wording of the rule, read in context. See In re Haws, 310 Or
741, 746-48, 801 P2d 818 (1990) (using that methodology to
interpret disciplinary rule, focusing on meaning ofrule's key
words). Nothing in BR 2.4(g) tells us whether a "substitute
appointment" refers to appointment of persons to replace
individual members of a particular trial panel or, instead,
includes the more sweeping exercise of authority to appoint a
trial panel that is new and different in toto from an earlier
panel. No contextual or other clues resolve the ambiguity.
Lacking any other source to assist us, we look to the purposes
of the right to make a peremptory challenge.
The right is not a constitutional one. Due process
does not require that the Bar make peremptory challenges-
as opposed to challenges for cause-available at all. Instead,
like other procedural trial rights, the right to exercise a per-
emptory challenge is intended to foster a sense of confidence
in the system by those who are subject to disciplinary pro-
ceedings. Allowing an accused lawyer to remove a member of
a new, separately appointed trial panel by peremptory chal-
lenge would advance that purpose. As this case developed,
the accused exercised his right to a peremptory challenge

106 	In re Hendrick
before the first trial panel with the expectation that he at
least had been able to reduce the known members of the trial
panel to the two persons out of the original three whom he
thought were most likely to give him a fair hearing. With the
total change of panels, however, that assurance was lost--
the accused faced three different people and was powerless to
remove any of them, in the absence of cause. Leaving an
accused lawyer in that position does not further the goals
that are fostered by the right to make peremptory challenges.
We view the accused's position as analogous to that
of a criminal defendant in a jury trial who has exercised his
available peremptory challenges, but then loses the benefit of
those challenges when the entire jury is dismissed due to a
mistrial. We do not believe that anyone questions such a
defendant's right thereafter to exercise peremptory chal-
lenges during the selection of a new jury panel. Still, the
analogy on which we rely is useful, but not necessarily con-
trolling, and the issue that we are addressing remains a close
one. Ultimately, however, we are persuaded by a combina-
tion of the analogy that we have noted and another, perhaps
even more persuasive consideration. That consideration is
the nature of this kind of case, and of our relationship to it.
In Bar disciplinary proceedings, the Bar serves as a
surrogate for this court. That is, it investigates and (where it
appears appropriate) prosecutes possible disciplinary viola-
tions, with a view to assisting this court in ensuring that
practicing members of the Bar behave in an ethical manner.
This court, if it were performing that function itself, would
make every attempt to see to it that, whatever the outcome,
an accused lawyer would think that he or she was treated
fairly in the process. We read the Bar Rules as promoting
that same goal and, as we have explained, we view the right
to a peremptory challenge to be a part of that effort. Ifit were
our own rule, we would read it to permit a new peremptory
challenge if an entirely new panel were summoned, because
reading the rule in that way would foster a sense of fairness
in the system. We take that same view respecting our surro-
gate-the Bar. We hold that the Disciplinary Board chairper-
son erred in denying the accused the right to exercise a per-
emptory challenge to one of the members of the second trial

Cite as 346 Or 98 (2009) 	107
panel. We turn to a consideration of the remedy, if any, to
which the accused is entitled in light of that error.
In an ordinary lawyer disciplinary proceeding, this
court performs a de novo review of the facts respecting the
charges against the accused lawyer and then either adopts,
modifies, or rejects the decision of the trial panel. BR 10.6.
Thus, it could be argued that any error respecting the com-
position of the trial panel technically would be "cured" by our
separate review of the record. Indeed, that is the view
adopted by the dissent, and it has some force. In this case,
however, the accused's case was not heard by a properly con-
stituted trial panel: One person whom the accused was enti-
tled to 	have removed 	nonetheless 	participated. 	To 	use
another analogy, the accused's position is analogous to that of
a party to a circuit court case who timely has made a motion
for a change of judge, but the challenged judge unaccountably
declines to step aside. In such circumstances, we think that
all would agree that the issue is not whether the resisting
judge can be (or is, or has been) fair. Instead, the issue is
whether the objecting party must accept an adverse outcome
if that judge tries the case. As to that issue, we think that the
party's right to a second trial before a different judge follows
from the nature of the right itself. And, if the trial panel was
not properly constituted, there is no way to know whether a
properly constituted trial panel would have created the same
record, made the same rulings, or construed the evidence in
the same way, much less reached the same conclusions that
this one did.
Finally, and in addition to the foregoing, we note
that, were we simply to exercise our de novo review authority
and decide the accused's case on the merits notwithstanding
our conclusion that the accused was denied a procedural
right guaranteed by the Bar's rules, his ability to exercise
that right would be profoundly undercut. Put differently, if
we were to decide that this court's de novo review of decisions
of trial panels means that, as a matter oflaw, an accused law-
yer is not prejudiced by the denial of one or more procedural
rights during the course of a disciplinary proceeding, no

In re Hendrick
accused lawyer's procedural "rights" have any certain mean-
ing-de novo review may trump any of them. We decline to
take that view. The accused is entitled to some sort of relief. 2
That said, however, we reject the accused's argu-
ment that the appropriate remedy for this violation of his
procedural right is to dismiss the charges against him. This
error-like most others-can be cured fully by affording the
accused a new hearing at which he may (if he so chooses)
exercise his right peremptorily to remove one trial panel
member. We therefore remand the case to the Disciplinary
Board for the appointment of a new trial panel to hear the
charges against the accused.
The case is remanded to the Disciplinary Board for
the appointment of a new trial panel to hear the charges
against the accused.
KISTLER, J., dissenting.
The majority holds that the Bar should have given
the accused another peremptory challenge when it impan-
eled a new trial panel, and it remands this case for a new
hearing because of that error. I agree with the majority that,
under the Bar's rules, the accused was entitled to another
peremptory challenge. I part company, however, from the
majority when it remands this case for a new hearing. In
effect, and without citing any authority, the majority holds
that the erroneous denial of a peremptory challenge in a bar
disciplinary proceeding automatically requires a new hear-
ing. This court, however, has rejected the notion that a simi-
lar error in the composition of a trial panel automatically
required a new hearing, and the underlying substantive
2 The dissent's opposing view relies heavily on In re Paulson, 341Or542, 145
P3d 171 (2006), but that reliance is misplaced. Paulson was a case in which the
accused, in a scattershot argument, accepted the idea that the members of his trial
panel might be objective and honorable, but nonetheless argued that any decision
that they made should not be sustained because they were "hand picked" by the
hierarchy of the Bar and that hierarchy- in the accused's view-was biased
against him. This court there suggested that its de novo review authority was a bul-
wark against the problem that the accused described. Id. at 546. Here, however,
the accused has an actual right-not simply a generalized complaint based on dark
suspicion-to have a panel member removed. Vindication of that right cures the
problem. Where, as here, there is a path that we can follow that vindicates a clear
right, it is that path that we shall follow.

Cite as 346 Or 98 	109
issue in this case involves only a legal question-whether the
accused's actions constituted the practice of law. Because
there is no legal or procedural reason to remand this case for
a new hearing, I respectfully dissent.
Before turning to the question whether a remand is
required, it is helpful to put that question in perspective.
Chex Systems, Inc., maintains a list of persons with a history
of overdrawn checks or closed accounts and provides that
information to banks. If a person is on Chex Systems' list,
that person frequently will have difficulty opening a new
bank account.
The accused, doing business as Valley Law Center,
offered consumers help in getting off Chex Systems' list. The
website for Valley Law Center told consumers that, in return
for an advance payment of $249, Valley Law Center would
help them remove their names from Chex Systems' list. The
website also explained why Valley Law Center's services
were superior to nonlegal alternatives. According to the web-
site, the "most important reason [why Valley Law Center
provides effective help] is that we are an actual Law Firm.
We know the law and we use our legal knowledge and exten-
sive experience to get you out of [Chex Systems]."
The accused received advance payments from mul-
tiple clients for his help in removing their names from Chex
Systems' list. The accused, however, did not deposit those
payments in a separate trust account, and the Bar charged
the accused with violating two Rules of Professional Conduct
(RPC): RPC 1.15-l(a) (failure to deposit and maintain client
funds in a separate trust account) and RCP 1.15-l(c) (failure
to deposit advance payments in a lawyer trust account). 1
Before the trial panel, the accused did not dispute
that, ifhe were engaged in the practice oflaw, his failure to
deposit the advance payments in a separate trust account
violated both ethical rules. The accused argued, however,
that all that he did for his clients was send a series of form
1 The Bar also charged the accused with violating RPC 1.15-l(d) (failure to
promptly deliver funds to a client), but the trial panel found that the Bar had not
proved that charge by clear and convincing evidence. The Bar does not challenge
that ruling on review.

110 	In re Hendrick
letters, under the client's signature, to Chex Systems and
that those form letters did not constitute the practice of law.
In essence, the accused's defense before the trial panel turned
on whether the undisputed facts established that he was or
was not engaged in the practice oflaw. The trial panel ruled
that the accused was engaged in the practice of law and
accordingly 	found 	that 	the 	Bar 	had 	proved 	both 	rule
violations.
On review before this court, the accused does not
argue that the trial panel erred in resolving the legal issue on
which its decision turned-whether the letters that he sent
on behalf of his clients constituted the practice of law. Nor
does he argue that the trial panel erred in admitting any evi-
dence or making any factual finding. 2 Rather, the accused
argues that, under Bar Rule of Procedure (BR) 2.4(g), the
panel should have allowed him to exercise a peremptory chal-
lenge against one of its members. 3
Even though the accused does not challenge on
review the legal issue on which the trial panel's decision
turned and even though the accused does not identify any
reason why the Bar's procedural error would affect our abil-
ity to decide that legal issue (if he had raised it on review), the
majority holds that the erroneous denial of a peremptory
challenge entitles the accused to a new hearing before a dif-
ferent trial panel. In effect, the majority holds that the denial
of peremptory challenge in a bar disciplinary hearing is a
structural error that always requires a new hearing.
The majority paints with too broad a brush. To be
sure, some procedural rights are so fundamental that the
denial of the right requires a new trial even if the procedures
a party received were fundamentally fair. The right to a jury
trial provides an obvious example, as does the right to an
unbiased decision-maker. See, e.g., Thompson v. Coughlin,
329 Or 630, 640, 997 P2d 191 (2000) (jury trial); Ward v.
2 The accused also argues on review that the Bar engaged in an improper
ex parte contact with the first trial panel. As the majority correctly explains, how-
ever, the Bar acted properly.
The accused did not seek to recuse the panel member for cause, and he has
not argued either before the trial panel or this court that he has any basis for say-
ing that the panel member was biased against him.

Cite as 346 Or 98 	111
Village of Monroeville, 409 US 57, 61-62, 93 S Ct 80, 34 L Ed
2d 	267 	(1972) 	(unbiased 	decision-maker); 	cf. 	Rivera 	u.
Illinois, 556 US ___ ,_, 129 S Ct 1446, 1453, 173 L Ed 2d
320 (2009) ("If a defendant is tried before a qualified jury
composed of individuals not challengeable for cause, the loss
of a peremptory challenge due to a state court's good-faith
error is not a matter of federal constitutional concern."). But
the right granted by the Bar Rules to excuse a member of a
trial panel for any reason or no reason at all does not rise to
the same level as those fundamental constitutional rights, as
this court has recognized in two functionally indistinguisha-
ble cases. See In re Paulson, 341 Or 542, 546, 145 P3d 171
(2006) (rejecting challenge to composition of trial panel
because the challenge, even if correct, did not affect this
court's ability to decide on de novo review whether the
accused committed the charged ethical violations); In re
Reuben G. Lenske, 269 Or 146, 164-65, 523 P2d 1262 (1974)
(same).
It is also true that some procedural errors may affect
the development of a record in a way that cannot be cured on
appeal, even on de nouo review. In those instances, the case
has to be remanded for a new hearing. But this court has
never held that every procedural error requires a remand.
Some errors are, after all, harmless, and the inquiry is or
should be whether a procedural error affected the trial
panel's decision in a way that requires a new hearing. In this
case, the accused has not even attempted to identify any way
in which the erroneous denial of a peremptory challenge
affected either his ability to create a record or our ability to
correct any perceived error in the trial panel's resolution of
the charges against him. Perhaps the accused has not done so
because the only real dispute below appears to have been
whether his undisputed acts on behalf of his clients consti-
tuted the practice of law. Had the accused chosen to raise
that legal issue on review, we could have addressed it and
resolved it one way or the other. However, without any chal-
lenge to that issue and without some basis for thinking that
the Bar's procedural error affected our ability to review these
proceedings, I would affirm the trial panel's decision.
The majority advances two reasons for reaching a
contrary conclusion. It reasons initially that we can never

112 	In re Hendrick
know whether the failure to permit an accused to exercise a
peremptory challenge affected either the record or our ability
to review the charges against the accused. The majority's rea-
soning goes too far. If, as in this case, the essential facts are
undisputed and the only question is legal, then it is difficult
to see how the failure to permit the accused to exercise a per-
emptory challenge affects our ability to determine whether
the accused's acts constituted the practice oflaw. As a subsid-
iary matter, I would put the obligation on the party challeng-
ing the trial panel's decision to explain why a procedural
error affected the record in a way that requires a remand. In
the proper case, the point can be easily made. 4 Here, how-
ever, the accused has not attempted such a showing.
The majority advances a second reason in support of
its automatic remand for a new hearing. It reasons that, if
"we were to decide that this court's de novo review of deci-
sions of trial panels means that, as a matter of law, an
accused lawyer is not prejudiced by the denial of one or
another procedural rights during the course of a discipli-
nary proceeding, no accused lawyer's procedural 'rights'
have any certain meaning--de novo review may trump any
of them."
346 Or at 107-08. The majority takes aim at the wrong target.
The Bar has not suggested that de nouo review trumps every
procedural right. The denial of some procedural rights may
affect the record or the panel's fact-finding, as noted above.
And, as also noted above, some procedural rights may be so
fundamental that their denial will always require a new
hearing. But this court has never held that the denial of every
procedural right requires a new hearing, nor has it held that
the denial of the sort of right at issue here requires one.
4 For instance, on de novo review, this court defers to some credibility deter-
minations that the trial panel makes. See In. re Fitzhenry, 343 Or 86, 103-04, 162
P.'ld 260 (2007) (explaining that this court will defer to credibility determinations
based on the "accused's demeanor and manner of testifying" but not credibility
determinations based on "objective factors"). When the proof of a charge turns on a
credibility determination to which we will defer, then the composition of the trial
panel may make a difference and a new hearing may be appropriate. As noted, the
accused does not argue that that circumstance, or a similar difficulty, is present in
this case.

Cite as 346 Or 98 (2009) 	113
Rather, it has reached precisely the opposite conclusion. See
Paulson, 341 Or at 546 (alternative holding).
In Paulson, the accused argued that the Board of
Bar Governors and the Bar's disciplinary counsel " 'actually
appoints the disciplinary board,' "from which the trial panels
are drawn, and that this court had abandoned its responsi-
bility to exercise independent authority over the appoint-
ment process. Id. at 546. After noting that the record did not
support the accused's argument, this court offered an alter-
native reason why his argument did not provide any basis for
ordering a new hearing before a different trial panel. The
court began by noting that the accused did not argue that
"any person on his trial panel was biased against him." Id.
The court then explained that, even if the accused's charge
were correct, "in light of this court's de nova review in disci-
plinary cases, the deficiency that the accused perceives in the
appointment process has no effect on either the fairness or
the legitimacy of our conclusion that the accused committed
the charged disciplinary violations." Id. (emphasis added);
see also Lenske, 269 Or at 164 ("The fact that the Board of
Governors of the Oregon State Bar [who concluded that the
accused had committed certain ethical violations] may have
been selected by what is referred to by the accused as an
'undemocratic process' does not invalidate these [discipli-
nary] proceedings.").
Paulson establishes that, contrary to the majority's
reasoning, not every procedural error that affects the compo-
sition of a trial panel requires a new hearing. More impor-
tantly, Paulson establishes that there is no basis for remand-
ing for a new hearing in this case: The procedural error in
this case is functionally indistinguishable from the claimed
procedural error in Paulson. In this case, as in Paulson, the
accused did not seek to recuse the panel member for cause;
that is, he did not argue that there was any basis for saying
that the panel member was biased against him. The accused
did, 	however, 	seek 	to 	exercise 	a 	peremptory 	challenge
against the panel member. A party can exercise a peremptory
challenge for any reason or no reason at all, but the accused
presumably sought to exercise a peremptory challenge in
this case because he suspected that the panel member,

114 	Inre
although neutral and unbiased, might not be receptive to his
arguments.
In Paulson, the accused argued that the perceived
procedural deficiency in that case resulted in precisely the
same problem; that is, the accused argued in Paulson that
the Bar and its disciplinary counsel had handpicked the trial
panel members and that those panel members, although
neutral and unbiased, were not receptive to the accused's
arguments. If, as this court explained in Paulson, that per-
ceived deficiency in the composition of the trial panel "has no
effect on either the fairness or the legitimacy of our [deter-
mination whether] the accused committed the charged disci-
plinary violations," 341 Or at 546, then it is difficult to see
why a different rule should apply here. The majority errs in
automatically remanding this case for a new hearing. I
respectfully dissent.
Linder, J., joins in this dissent.