dissenting.
The majority holds that the Bar should have given the accused another peremptory challenge when it impaneled 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 hearing. This court, however, has rejected the notion that a similar error in the composition of a trial panel automatically required a new hearing, and the underlying substantive *109issue 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 website, 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 extensive experience to get you out of [Chex Systems].”
The accused received advance payments from multiple 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, if he were engaged in the practice of law, 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 *110letters, 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 of law. 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 evidence 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 challenge 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 ability 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 different 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. *111Village of Monroeville, 409 US 57, 61-62, 93 S Ct 80, 34 L Ed 2d 267 (1972) (unbiased decision-maker); cf. Rivera v. 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 indistinguishable 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 novo 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 constituted 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 challenge 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 *112know 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 reasoning 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 peremptory challenge affects our ability to determine whether the accused’s acts constituted the practice of law. As a subsidiary matter, I would put the obligation on the party challenging 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, however, 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 decisions 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 disciplinary 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 novo 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. *113Rather, 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 responsibility to exercise independent authority over the appointment process. Id. at 546. After noting that the record did not support the accused’s argument, this court offered an alternative 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 novo review in disciplinary 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 [disciplinary] proceedings.”).
Paulson establishes that, contrary to the majority’s reasoning, not every procedural error that affects the composition of a trial panel requires a new hearing. More importantly, Paulson establishes that there is no basis for remanding 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, *114although 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 perceived deficiency in the composition of the trial panel “has no effect on either the fairness or the legitimacy of our [determination whether] the accused committed the charged disciplinary 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.The Bar also charged the accused with violating RPC 1.15-1(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.
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, however, 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 saying that the panel member was biased against him.
For instance, on de novo review, this court defers to some credibility determinations that the trial panel makes. See In re Fitzhenry, 343 Or 86, 103-04, 162 P3d 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.