OPINION
In these proceedings, this court is called to review determinations of the State Bar of Nevada’s Board of Governors, which has recommended to us that attorney John Tom Ross should *3 be disbarred, that attorney Peter L. Flangas should be suspended from the practice of law for two years, and that each of them should be fined one-half of the costs the State Bar has incurred through investigating and processing charges against them. 1 For the reasons stated below, we are constrained to hold that the proceedings against the aforesaid attorneys derogated their right to due process of law, as guaranteed by the Constitution of the United States. Accordingly, we grant the motions of attorneys Flangas and Ross to dismiss the proceedings against them.
I
HISTORICAL BACKGROUND OF THE CASE
This matter arose from probate proceedings involving the estate of Walter E. Herrmann, who died on January 20, 1973, leaving substantial properties in Nevada and California. Over five years later, in March of 1978, this disciplinary proceeding was commenced by the filing of a complaint with the State Bar’s Board of Governors which accused Flangas and Ross, as attorneys for non-resident heirs, together with the attorney for the estate’s executor, of misconduct in connection with the probate proceedings and subsequent inquiries into the propriety of their fees.
The matter has a tortuous history, which will only be traced in most material part. In November of 1973, District Judge Richard Waters of the First Judicial District Court, for the County of Lyon, awarded the total sum of $70,000 to Flangas and Ross, whom Judge Waters had previously appointed to represent the non-resident heirs of the Herrmann Estate. From the record, it appears that Flangas and Ross had performed services of benefit to the Herrmann Estate. It also appears, however, that at least part of their services were of no benefit to the non-resident heirs, to whom Walter Herrmann had bequeathed specific sums of money. Thus, apparently for that reason, when the executor filed his account and petition for ■fees, Judge Waters ordered that the fees to Flangas and Ross should be paid from the general estate. Under Judge Waters’s order, the specific bequests to the non-resident heirs bore no portion whatever of the fees awarded to Flangas and Ross. 2 This fact should be noted explicitly, inasmuch as numerous stories have been generated in the news media, comparing the size *4 of the fees to Flangas and Ross with the specific bequests made by the decedent to the non-resident heirs.
Not long after fees were awarded to Flangas and Ross, Judge Waters died. A successor judge was named to fill Judge Waters’s office until the next general election. He assumed control of the Herrmann Estate matter, and in time came to believe that the award of fees resulted from a corrupt conspiracy between Judge Waters, Flangas, Ross, and the executor’s attorney. Thereupon, the successor judge telephoned the State Bar’s president to solicit the investigation which culminated in the instant proceedings. After consulting with the successor judge, the State Bar president hired an investigator from Sacramento. These circumstances are summarized in a letter, in the nature of a status report, which the State Bar president wrote to his own successor:
I received a call from [the successor judge], who indicated that it was obvious to him that his predecessor, [the attorney] representing the estate together with Peter Flangas and John Tom Ross, were involved in a conspiracy to extract exorbitant fees from this estate. He had no place else to look for assistance and asked if the State Bar would be willing to conduct an investigation into the entire matter. Thereafter, with the assent of the Board, I hired Jim Sims, who is a competent private investigator from Sacramento.
I felt at that time that this investigation would serve a dual purpose:
A. To assist the Court.
B. To determine if counsel involved had been guilty of unethical conduct which could either lead to their receiving a reprimand, suspension or disbarment.
Appreciating the fact that this might entail the spending of some State Bar dues to assist the Court, I felt we were justified in proceeding in the manner in which we have. / had in mind also that later perhaps we could petition the Court to recoup some of the expenses which have been involved, if, as a matter of fact, we could ultimately prove that there was unethical conduct involved and by virtue of this fact the assets of the estate were not diminished due to the conduct of counsel.
I am enclosing four bills from Jim Sims which somehow I misplaced which are in line for payment. I appreciate the fact that we have spent considerable money to date but, under these circumstances, I think the expenditures are justified.
(Emphasis added.)
*5 The State Bar pursued a lengthy investigation attempting to validate the successor judge’s suspicions about conspiracies. It appears that the successor judge assumed an active role in these inquiries, meeting privately with the Bar’s investigator, one Sims, and channeling his activities. Flangas and Ross, as well as the attorney for the Herrmann Estate’s executor, ultimately were charged and brought to hearing before the State Bar’s Board of Governors.
After an eight-day hearing in the summer of 1978, the Board of Governors absolved all three attorneys of every allegation originally conceived by Judge Waters’s successor. The Board of Governors found that there was neither evidence to justify any of several charges of conspiracy and related impropriety involving Judge Waters and the Herrmann Estate attorneys, nor evidence to substantiate a charge involving a political plot by Flangas against the successor judge. On the basis of a welter of conflicting evidence, however, the Board of Governors found that Flangas and Ross had been untruthful in regard to aspects of the inquiries into the successor judge’s unsupportable suspicions. Hence, the Board of Governors determined to recommend that Flangas and Ross should be disciplined.
Under rules promulgated by this court, bar disciplinary proceedings are required to remain confidential pending our review. Nonetheless, almost immediately following conclusion of the Board of Governors’ deliberations, and long before the Board had formulated and filed its legally confidential “Decision and Recommendation” with this court on September 11, 1978, distorted and inflammatory stories concerning the proceedings began surfacing in the news media. Therefore, after the formal “Decision and Recommendation” ultimately was filed with this court, Flangas and Ross moved to require more specific findings of fact, and requested an investigation into the breaches of confidentiality which were undermining the accused’s rights. On October 19, 1978, the court convened with counsel in chambers, and elicited an agreement that the Board of Governors would prepare specific findings. 3 The court took no action, however, on complaints concerning the aforementioned breaches of confidentiality.
A few days afterward, election campaign advertising began to appear in the print and electronic media throughout Nevada, alluding to the pending Herrmann Estate proceedings, and to the successor judge’s role in these pending proceedings, as a basis for lauding the successor judge’s candidacy for election to this court. Flangas again petitioned this court for protection, *6 but relief was denied in an order executed by two court members, with one justice dissenting.
This history has given rise to a plethora of issues. Flangas sued for violation of his civil rights in the United States District Court for Nevada, moving for an injunction against further proceedings in this court on the ground that the unlawful media “leaks,” the improper campaign advertising, and other judicial misconduct, had destroyed prospects for due process in our state court system. The United States District Court for Nevada enjoined us from proceeding. On appeal, however, the Ninth Circuit Court reversed, holding that federal intervention would be unwarranted until Flangas and Ross have exhausted possibilities for just treatment in this tribunal.
See:
Flangas v. State Bar of Nevada,-
II
CURRENT STATUS OF THE CASE
Following the granting of various motions for extension of time, attorney Ross filed a petition for review of the Board’s decision on October 3, 1979. Briefing was completed on the Ross petition on April 16, 1980. Among other things, Ross contends that the conduct of the hearing by the Board of Governors of the State Bar of Nevada, the body primarily responsible for the finances of the Bar, violated his due process right to an impartial tribunal, because the Board could only recoup its considerable expenses of the proceedings if charges of misconduct were sustained. In May, 1980, petitioner Ross filed a motion for a “Pre-Hearing Conference,” containing inter alia subordinate requests for (1) the granting of its prior unopposed motion for a precise statement by the Bar of the costs of the proceedings, characterized as “critical” to petitioner’s due process argument, and (2) the bifurcation of argument so as to allow the court to consider his threshold constitutional argument separately and preliminarily, perhaps sparing the court the necessity of de novo review of some 2310 pages of transcript and over 200 documents contained in the “Exhibits.”
On December 9, 1981, attorney Flangas filed a “Motion to Dismiss and Quash the Decision and Action of the Board of Governors,” also asserting the due process argument advanced by petitioner Ross. 4 Attorney Ross later joined in this motion. In order that we might consider the threshold question thus raised, we required the State Bar to submit a precise itemization of the costs of proceedings.
*7 III
ANALYSIS OF THRESHOLD LEGAL ISSUE
The United States Supreme Court has made it clear that “[t]he Due Process Clause entitles a person to an impartial and disinterested tribunal in both civil and criminal cases.” Marshall v. Jerrico, Inc.,
In Tumey v. Ohio,
the mayor’s individual pecuniary interest in his conviction of defendants was not the only reason in the Tumey case for holding the Fourteenth Amendment to be violated. Another was that a defendant brought into court might with reason complain that he was not likely to get a fair trial or a fair sentence from a judge who as chief executive was responsible for the financial condition of the village . . . and who by his interest as mayor might be tempted to accumulate from heavy fines a large fund by which the running expenses of a small village could be paid, improvements might be made and taxes reduced! This was thought not to be giving the defendant the benefit of due process of law.
Dugan v. Ohio,
In Ward v. City of Monroeville,
Flangas and Ross argue that Ward is directly applicable to this disciplinary proceeding, since the adjudicatory hearing, factual findings and recommendations were all undertaken, as the Supreme Court Rules then permitted, 5 by the Board of Governors of the State Bar of Nevada, the body with primary responsibility for the finances of the Bar Association.
As Flangas and Ross point out, the same group which was permitted to “try thcaccused” in a disciplinary matter, pursuant to former SCR 104(7), was also the group “charged with the executive functions of the state bar,” SCR 85, including responsibility for revenues, expenditures, and management of the bar’s finances. See SCR 85(2); former SCR 86(1), (2), (3), (4), (12), and present SCR 86(1), (2), (3), (4), and (11), eff. Feb. 15, 1979. Most significantly, under former SCR 105(1), the Board of Governors was given power “for any of the causes set forth in [the Supreme Court] rules warranting [discipline] ’ ’ to assess or recommend the assessment of costs or the imposition of fines on disciplines. All fines, assessments and costs were paid directly to the State Bar treasury. Former SCR 86(7).
As reflected by a supplemental record submitted by the State Bar pursuant to order of this court, the total costs which the Bar claims to have incurred in the “Herrmann Estate Disciplinary Matter,” and which it seeks to recover from Flangas and Ross, amount to some $34,000. The record before us also shows that in the fiscal year ending September 30, 1978, during which charges against Flangas and Ross were heard, the State Bar enjoyed total revenues of only $177,494, while expending $204,650, with a resulting deficit of $27,156. In other words, the assessment sought against Flangas and Ross was equal to nearly 20 percent of the State Bar’s total revenue, and would more than have defrayed its yearly deficit.
*9 Counsel for the Board of Governors has cited a number of cases in support of his argument that the procedure used in this case did not violate the constitutional due process standard of Tumey and Ward. Upon examination, however, none of these cases involves the combination of adjudicatory and executive functions addressed by the court in Ward and presented by the facts of this case.
In two of the cases cited by counsel for the Board of Governors, courts held that judges were not precluded, by virtue of their own membership in state bar associations, from hearing disciplinary matters brought by those bar associations. Ex Parte Alabama State Bar Ass’n,
The issue presented here, however, is illustrated by City of Boston v. Baldwin,
Here the members of the Board of Governors, like the mayor in Ward or the councilman in Baldwin, collectively have a particular responsibility and duty to protect the financial integrity of the bar association. This distinguishes their position from that of a mere member of the bar association. It is the potential impact of this duty and responsibility upon the ability of a fact-finder “to hold the balance nice, clear and true” which was of concern to the Supreme Court in Ward and which is at issue, here.
The final case cited by the Board is also inapposite. In re
*10
Osborn,
This issue, like the issue of mere membership, is not presented here. The question is not whether the Board improperly combined adjudicatory and prosecutorial functions, but whether it improperly combined adjudicatory and executive functions, in contravention of the standard of Ward. In re Osborn is therefore of no help to the Board.
Counsel for petitioner Ross points out that there are two possible exceptions to the dictates of Ward. First, the rule of necessity, and, second, a pecuniary interest too remote or insubstantial. It appears that neither of these exceptions is applicable here.
The rule of necessity is called into play when the strict application of a rule of disqualification would leave the parties without a forum.
See, e.g.,
Atkins v. United States,
The second exception is derived from Dugan v. Ohio,
supra.
There, the court held that a mayor’s court did not violate due process where, although fines were deposited in the city’s general fund, the mayor’s salary was unrelated to convictions or fines imposed, and he had as mayor no specific executive responsibilities. As the court later summarized this holding in
*11
Ward,
Though counsel for the Board does not argue this point, it might be suggested that the court should apply the less stringent standard recently announced by the Supreme Court in Marshall v. Jerrico, Inc.,
supra,
as applicable to an administrative agency performing a prosecutorial rather than an adjudicatory function. After determining that the agency’s function was in fact prosecutorial, the court concluded that any potential “biasing influence” in the challenged statutory procedure was “too remote and insubstantial to violate the constitutional constraints applicable to the decisions of an administrator performing prosecutorial functions.”
In Marshall v. Jerrico, the court concluded that the function of an assistant regional administrator for the Employment Standards Administration of the Department of Labor “performs no judicial or quasi-judicial functions. He hears no witnesses and rules on no disputed factual or legal questions. The function of assessing a violation is akin to that of a prosecutor or civil plaintiff.”
Here, the function performed by the Board is clearly more akin to the judicial than a prosecutorial role. The rules themselves referred to the Board’s power to “try the accused.” Former SCR 104(7). These proceedings were conducted according to the Nevada Rules of Civil Procedure, and the Nevada Evidence Code, in a full adversary proceeding with a designated “prosecutor,” as well as counsel for the accused, presenting witnesses and making factual and legal arguments to the Board. Most significantly, at the conclusion of the hearing, the Board made factual findings, on the basis of its resolution of *12 conflicting testimony by witnesses before it, and then made its recommendations. The Board thus clearly functioned in a quasi-judicial role. 6
Furthermore, even should the prosecutorial standard be applied, the financial impact of a decision in this case is simply not comparable to that judged in Marshall v. Jerrico to be too remote and insubstantial. In Marshall v. Jerrico, the court noted the child labor penalties, assessment of which was claimed to present the basis for an unconstitutional potential for bias on the part of certain administrators, amounted to substantially less than 1 percent of the agency’s budget during three years of operation. Moreover, in each of those years the agency did not spend the full amount of its appropriation, and in fact returned amounts to the Treasury exceeding the sums of child labor penalties collected. Though the law allowed it, none of the penalties had ever actually been allotted to the regional offices whose administrators were alleged to be affected by the potential for institutional gain in the assessment of the penalties.
In such circumstances, it is not surprising that the court in Marshall v. Jerrico said it “need not say with precision what
*13
limits there may be on a financial or personal interest of one who performs a prosecutorial function, for here the influence alleged to impose bias is exceptionally remote.”
Therefore, the adjudication by the Board would appear to fall within the proscription of Ward, unexcused by the rule of necessity and not within the exception established for an interest too remote or insubstantial, according to Dugan or Marshall v. Jerrico.
Two final points are worthy of comment. First, it should be noted that the United States Supreme Court has made it clear that the fullest review by this court would not “cure” a defective adjudicatory proceeding below. As the court held in
Ward,
a “trial court procedure [may not] be deemed constitutionally acceptable simply because the State eventually offers a defendant an impartial adjudication. Petitioner is entitled to a neutral and detached judge in the first instance.”
Second, it should be stressed that we are dealing here not with a charge of actual bias, but with a challenge to a procedure as presenting a constitutionally unacceptable potential for bias, based upon the premise that “any tribunal permitted by law to try cases and controversies not only must be unbiased but also must avoid even the appearance of bias.” Commonwealth Coat. Corp. v. Continental Cas. Co.,
As the Supreme Court has said,
In re Murchison,
Fairness of course requires an absence of actual bias in the trial of cases. But our system of law has always endeavored to prevent even the probability of unfairness. To this end no man can be a judge in his own case and no man is permitted to try cases where he has an interest in the outcome. That interest cannot be defined with precision. Circumstances and relationships must be considered. This Court has said, however, that “every procedure which would offer a possible temptation to the average man as judge . . . not to hold the balance nice, clear and true between the State and the accused, denies the latter due process of law.” Tumey v. Ohio,273 U.S. 510 , 532. Such a stringent rule may sometimes bar trial by judges who have no actual bias and who would do their very best to weigh the scales of justice equally between contending parties. But to perform its high function in the best way, “justice must satisfy the appearance of justice.” Offutt v. United States,348 U.S. 11 , 14.
The procedure used here, formerly permitted by the rules governing bar disciplinary matters — in which the Board of Governors, the body responsible for the finances of the bar association, functioned as fact-finder in a quasi-judicial proceeding, involving costs which were substantial and which were recoverable by the State Bar only upon a finding of misconduct — appears to violate due process under the standard enunciated by the Supreme Court in Ward v. City of Monroeville, supra.
IV
CONCLUSION
Because doing so obviates the need to consider other more problematical legal and factual issues, we have determined to address first the threshold due process issue, which is discussed at length above. We have concluded the argument that the proceedings conducted herein violated the accused’s right to due process of law is meritorious. Accordingly, petitioner Flangas’ *15 Motion to Dismiss and Quash the Action of the Board of Governors, in which petitioner Ross has joined, is hereby granted.
Proceedings against said attorneys are hereby dismissed.
Notes
The amount claimed by the State Bar as costs is some $34,000, much of which was expended in an investigation of charges which, as noted hereinafter, the Board of Governors has determined to be unjustified and without factual foundation.
Therefore, the non-resident heirs did not, and have not, objected to the amount of the fees which Judge Waters awarded to Flangas and Ross.
On January 19, 1979, the Board filed with this court “Supplemental Findings of Fact,” attempting to delineate more specifically their factual findings concerning Flangas and Ross.
No petition for review has as yet been filed by attorney Flangas.
At the time of this hearing, the applicable Supreme Court Rule, former SCR 104, permitted disciplinary proceedings to be instituted before the Board of Governors, or in the Supreme Court, as well as before a local administrative committee. This rule was repealed, effective February 15, 1979, when the Bar disciplinary procedure was substantially revised. Such hearings are now conducted by panels of two disciplinary boards created by SCR 103, on which members of the Board of Governors are expressly precluded from sitting, SCR 103(1). The role of the Board of Governors in disciplinary matters is now limited to the hearing of complaints against bar counsel or staff, SCR 104(2), and review on the record of disciplinary board decisions to dismiss complaints, SCR 105(1)(a).
Some confusion might be occasioned by this court’s prior holding,
In re Scott, supra,
[
While continuing to recognize its obligations to review the entire record, this court has also continued to recognize the persuasive force of such findings,
see, e.g.,
In re Kellar,