NO. 91-312 

IN THE SUPREME COURT OF THE STATE OF MONTANA 

IN THE MATTER OF PAUL GROVER MATT, 111, 

Petitioner. 

ORIGINAL PROCEEDING: 

COUNSEL OF RECORD: 

For Petitioner: 

Carey E. Matovich, Matovich, Addy & Keller, 

Billings, Montana. 

For Respondent: 

Andrew P. Suenram, Attorney at Law, Dillon, Montana. 

Filed: 

Submitted on briefs: October 17, 1991 

8 Decided: April 2, 1992 

Clerk 
Justice Fred J. Weber delivered the Opinion of the Court. 

petitioner Paul G. Matt, 111, appeals from the final decision 

of the State Bar of Montana Committee on Character and Fitness 

refusing to certify petitioner to this Court for admission to the 

State Bar of Montana. We affirm the decision of the Committee. 

We restate the issues for our review as follows: 

1. What is the proper standard of review for the Court to 

apply to a decision of the Committee on Character and Fitness? 

2. Did the Committee on Character and Fitness properly 

conclude that Mr. Matt is unfit to practice law in the State of 

Montana? 

3. Did the Committee on Character and Fitness violate 

petitioner's constitutional right to due process? 

On February 28, 1990, Paul G. Matt, I11 (Mr. Matt), filed his 

application for certification for admission to the State Bar of 

Montana. As the rules require, the application was referred for 

review to the State Barfs Committee on Character and Fitness 

(Committee). The Committee investigated and held three hearings. 

The first hearing, on June 27, 1990, was informal. Based on that 

hearing the Committee denied Mr. Matt's certification, 

Subsequently, a formal reconsideration hearing was held before the 

Committee on October 11, 1990. After the hearing, the Committee 

notified Mr. Matt by letter that they were still in the process of 

deliberating regarding Mr. Matt's Application for Admission and 

that pursuant to Rule 4(g) of the Committee's Rules of Procedure, 
it was considering items discussed in the formal hearing as we11 as 

additional items not discussed at the formal hearing but previously 

submitted in the record. Rule 4 (g) provides that the Committee is 

not bound by the formal rules of evidence. 

The Committee gave Mr. Matt the option of producing evidence 

regarding these additional factors in one of four ways: (a) a 

formal hearing held at the State Bar of Montana (State Bar) off ice; 

(b) a formal hearing held via conference call; (c) written 

argument; or (d) letting the record stand as stated in the 

transcript of the informal hearing. Mr. Matt, through his counsel 

of record, opted for a continuation of the formal hearing held at 

the State Bar office. A continuation of the formal hearing was 

held on February 13, 1991. On May 23, 1991, the Committee issued 

its Findings of Fact and Conclusions of Law denying certification 

of Mr. Matt to the clerk of the Supreme Court for admission to the 

State Bar. Mr. Matt has petitioned this Court for review of the 

Committeets denial of his certification. 

to a 

Bar, 

I 

What is the proper standard of review for the Court to apply 

decision of the Committee on Character and Fitness? 

This Court issued new rules regarding admission to the State 

effective January 17, 1991. Rules for Admission to the Bar of 

the State of Montana (1991), 247 Mont. 1. Those new rules provide 

the following standards for the Committee to follow. 

Section IV: 

*.. 

3. Standard of Character and Fitness. Every applicant 

3 
for the Montana Bar ~xamination must be of good moral 

character. It shall be the responsibility of the applicant to 

demonstrate to the satisfaction of the Committee that the 

applicant would, if admitted to practice law in Montana, be 

able to act in accordance with the standards set forth in the 

Montana Rules of Professional Conduct, fairly, honestly, 

reasonably, and with unquestionable integrity in all matters 

in which he or she acts as an attorney at law. 

4. ~nvestigation of Applicants. The committee 

shall process the applicant's Application and 

Questionnaire and, where necessary, otherwise investigate 

and make a determination of the character and fitness of 

each applicant to take the bar examination. . . . 

7. Committee Hearings, Rules of Procedure & 

Appeals. Any problems that arise in the processing of an 

applicant's Application and Questionnaire may be 

discussed in informal communications between the 

Committee and the applicant. From time to time, 

substantial issues will arise which will require formal 

trial and hearing before the Committee which may result 

in the Committee's disapproving the applicant's 

application and finding a lack of appropriate character 

and fitness to take the bar examination or be admitted to 

practice in Montana, . . . The Rules of Procedure provide 

for a hearing process before the Committee and also 

provide for a manner of appeal to the Montana Supreme 

Court by an applicant who contests the final rulings of 

the Committee. 

We also recently set forth the applicable standard of review for 

this Court to apply to a decision of the committee on Character and 

Fitness in In the Matter of Kenneth J. Pedersen (Mont. 1991), 820 

P.2d 1288, 48 St.Rep. 988. In that regard, we stated: 

The Montana Constitution provides that this Court 

has the power and obligation to regulate the admission of 

attorneys to the Montana Bar. Mont. Const. art. VII, g 

2, cl. 3. The Committee on Character and Fitness assists 

this Court in fulfilling its obligation to regulate the 

admission of attorneys in Montana. However, the ultimate 

decision regarding the admission of attorneys in Montana 

rests exclusively with this Court. Upon reviewing a 

final decision of the Character and Fitness Committee we 

will conduct an inde~endent review of the entire record 

to determine if the Committee erred. When the facts are 

admitted and uncontested, as they are in this case, we 

will give due consideration to the inferences drawn by 
the committee, including inferences concerning 

rehabilitation and mitigation. consideration will be 

given to the recommendation of the Committee as to 

whether the applicant is of the requisite good moral 

character and fitness to be admitted to the Montana Bar. 

The Committee will have heard testimonial evidence and 

will have had the opportunity to observe the demeanor and 

judge the credibility of the applicant or other 

witnesses. However, inasmuch as we are designated by the 

Montana Constitution to ultimately make this decision, we 

will affirm the Committee's recommendation if we 

determine it was correct, and we will reverse if we 

determine the Committee erred. Our review will be in 

accordance with the existing standards for admission, 

taking into consideration the whole record. (Emphasis 

added). 

Pedersen, 820 P.2d at 1290. 

Did the Committee on Character and Fitness properly conclude 

that Mr. Matt is unfit to practice law in the State of Montana? 

The Committee Rules of Procedure, adopted in 1987, 

specifically placed the burden on the applicant to prove that he 

possessed Itgood moral character1'. In contrast, in 1988, this Court 

adopted Rules for Admission to the Bar (1988), 234 Mont. 1, 9, 

which provided that "good moral character shall be presumed by the 

Committee on Character and Fitnessn. The current 1991 Rules for 

Admission to the Bar adopted by this Court are consistent with the 

original 1987 committee Rules in providing that the burden of proof 

is on the applicant to establish good moral character. See 

Pedersen, 820 P.2d at 1292. 

In the initial hearing the committee placed the burden of 

proof on Mr. Matt to establish his good moral character. To that 

extent the Committee erred because the first two hearings were 

governed by the 1988 Rules for ~dmission to the Bar in which good 
moral character was to be presumed by the Committee, By the time 

of the third hearing, the rules had changed, and the burden could 

properly be placed on Mr. Matt. 

We note that in Pedersen the burden of proof was also 

improperly placed on the applicant. This Court concluded that 

because the Committee specifically found that past conduct of the 

applicant would cause a reasonable person to believe he would be 

unable or unwilling to act in accordance with the standards set 

forth in the Montana Rules of Professional Conduct, the Committee's 

decision to deny the applicant's admission was justified. There is 

one significant difference between this case and Pedersen. In 

Pedersen, the facts were uncontested. In this case, there is a 

significant amount of conflict in the interpretation of Mr. Matt's 

testimony regarding his past actions. For that reason, we will 

discuss the conflicting testimony in detail. 

In our review of the testimony and evidence, we will begin 

with the understanding that the good moral character of Mr. Matt is 

presumed. Mr. Matt maintains that he has established his good 

moral character and fitness to practice law in the State of 

Montana, He submitted with his application several letters from 

judges, attorneys and clients, attesting to his good moral 

character and fitness to practice law. He also submitted 

certifications from the bars of Colorado and Nebraska stating that 

he was a member in good standing at both Bars. 

The Committee maintains that Mr. Matt failed to meet his 

burden of proof, It contends that it reviewed extensive regular 
investigation materials, post regular investigation materials, and 

conducted three hearings with Mr. Matt present, and unanimously 

concluded that Mr. Matt was untruthful in his testimony before the 

Committee, and thus, failed to prove his good character. 

A significant portion of the questioning of and testimony by 

Mr. Matt concerned an incident which occurred ten years ago in the 

State of Nebraska while Mr. Matt was a member of the Nebraska State 

Bar. The Committee made extensive findings of fact, of which the 

following are pertinent. 

I. In June 1981, Mr. Matt was charged by the 

Counsel of Discipline of the Nebraska State Bar 

Association with Misconduct as a lawyer. The charges 

stemmed from Mr. Matt being charged in 1980 by the 

Lancaster County Attorney (Nebraska) for conspiracy to 

possess cocaine. 

2. Matt completed a pre-trial diversion program and 

the criminal charges against him were dismissed. 

3. The Committee on Inquiry of the First Judicial 

District of the State of Nebraska prepared formal charges 

against Mr. Matt. Upon review of the charges, the 

Disciplinary Review Board recommended that the Supreme 

Court of Nebraska issue a reprimand to Mr. Matt. 

4. The Nebraska Supreme Court declined to accept 

the recommendation and upon de novo review, suspended Mr. 

Matt from the practice of law for one year. The Supreme 

Court's decision is reported in State, ex re1 v Paul G. 

Matt, 111, 213 Neb. 123, 327 N.W.2d 622 (1982). 

5. Mr. Matt subsequently applied for and obtained 

reinstatement to the Nebraska State Bar in January 1984. 

In addition, he applied for and was admitted to the 

Colorado State Bar. 

11. Mr. Matt has lead this Committee to believe his 

involvement in this matter was minimal. The Nebraska 

Supreme Court opinion demonstrates that Mr. Matt's role 

in this incident was much more involved, to the ~oint of 

determining the amounts of cocaine that would be sold and 
arranains the sale. The Committee finds that by 

down~lavina this incident. Mr. Matt was not candid with 

the Committee resardinq his involvement in the alleged 

conspiracv. 

12. Mr. Matt testified at the June 27, 1990, 

hearing that he did not get anything out of the 

transaction with Gierlkch, that he was not using drugs 

and he hadn't ever used druqs. 

13. The Nebraska Su~reme Court in its opinion 

states "the record reflects that prior to the events on 

March 1980, the Respondent had occasionallv used 

mariiuana wrsonallv and had purchased marijuana more 

than once from Gierlich who was a close personal friend." 

State v. Matt, 213 Neb. 123, 327 N.W. 2d 622, 623, 

(1982). 

14. Mr. Matt was untruthful in the ap~lication 

process before this Committee. His misrepresentations 

are material to the issues before the Committee and lead 

the Committee to doubt his candor in other areas as well. 

(Emphasis supplied.) 

On his application, Mr. Matt gave the following explanation 

for the charges that were filed against him in Nebraska. 

This inquiry by the Nebraska State Bar Association 

resulted from charges being filed against me by the 

Lancaster County Attorney's Office in March of 1980 for 

conspiracy to possess cocaine. These charges were 

dismissed at the State's cost in May 1981 when it was 

accepted that I was not a part of the consairacv. The 

charges were filed because of two telephone conversations 

I had with a close friend of mine in early March of 1980. 

I had not seen this friend for three or four months. She 

asked me if I knew where she might obtain some cocaine, 

and I told her I did not. She made further inquiries and 

asked if I knew anyone in Omaha. 1 told her that 

possibly the fellow living with my girlfriend in Omaha 

might know of someone. The telephone conversation was 

intercepted by law enforcement officers since my friend's 

live-in boyfriend was under surveillance. She was 

followed and ultimately arrested after the authorities 

charged that she purchased cocaine from the fellow in 

Omaha. (Emphasis supplied.) 

At the first hearing before the Committee, Mr. Matt testified 

regarding the cocaine dealings as follows: 
A. [TJhe essence of the charges by the State Bar, or the 

inquiry by the State Bar was because of charges filed 

against me by the Lancaster County Attorney's office, as 

I set forth. That was based on a close friend of mine 

who I hadn't seen for four, five, six months calling me 

and asking me if she could find some drugs, and I said 

no. She wanted to know where she could find some 

cocaine, and I said no. 

She then asked me, What about Omaha?" I was living 

in Lincoln, and I had a girlfriend in Omaha who lived 

with a fellow that she also knew named Curt . . . . I 

knew he knew a lot of people; he was the head maitre dl 

of a restaurant. My girlfriend lived in the same house 

with him; and 1 said, "Well, why don't you try Curt. So 

when I talked to mv sirlfriend, I asked Curt if he could 

help Judy, and he said, ltProbably,tt So I had Sudv call 

him. . . . She later was arrested, and because she had 

called me, they had charged me; and I went through a year 

of investigation and procedure with the Lancaster County 

Attorney's office until they realized that I was not part 

of anvthinq. 1 was not settincr anvthinq out of it, I: 

wasn't usins druss, I hadn't ever used druss, I wasn't 

involved in getting anything out of Judy's situation, and 

it was just a bad mistake on my part, obviously, to even 

comply with her request after 1 said no in the first 

place, 

Q= What 

diversion? 

A. I had 

. . . 

did you have to do in the pretrial 

to do, I think 100 hours of community 

work, I had to read a couple books and make a report, and 

I had to talk to a member of the probation office, I 

think every month. 

So after this was cleared up, then the Bar 

Association could look into it, and at that point, they 

did. The council on Discipline sent me a letter; they 

then had a full hearing in which there was seven members 

who had all the records of the Lancaster County Attorney 

and all the records of all the investigations. . . . They 

decided, after that, that due to all those circumstances 

and a11 the evidence they had, a reprimand was the 

appropriate discipline in my situation. 

That was then sent to the Attorney General, who 

complied with it . . . I then went to the Supreme Court 

for approval. The Supreme Court, without looking at any 

new evidence, just looking at exactly what took place as 

far as the transcript of my testimony and the evidence 

there, decided that that wasn't appropriate and that I 

should be suspended for a year, and they then did that. 
(Emphasis added) . 

At the second hearing, Mr. Matt testified he himself made the 

phone call to ltCurtH and then called Judy back the next day. 

Q. And then it's my understanding of your testimony 

in the last hearing that you told her about this guy 

named Curt who was living with your girlfriend. 

A. I told her no, and then she asked me, ''What 

about Omaha?" . . . 

Q. Then did you call Curt and ask if he could help 

Judy? 

A. Judy called me on a Friday. I said that I'd 

check with Curt if I saw Shirley. Then Saturday morning, 

I saw Judy's note and thought, l1Oh, that's right, I said 

I'd check with Curt," and then I called Curt. So it was 

the next morning. 

Q. So the transaction actually involved a couple 

phone calls. 

A. One phone call there, and then I called Judy 

back. (Emphasis added) . 

As pointed out by the Committee, the Nebraska Supreme Court 

opinion detailed Mr. Matt's involvement in the cocaine transaction. 

The opinion stated: 

The formal charges allege that on or about March 7, 1980, 

the respondent received a telephone call at his law 

office from a personal friend, Judy Gierlich. Gierlich 

asked the respondent where she could obtain some cocaine. 

The respondent first told her that he did not know, but 

on further questioning agreed to contact a friend of his 

in Omaha, Nebraska, concerning the availability of 

cocaine and then recontact her. 

On or about March 8, 1980, respondent called 

Gierlich at approximately 10:15 a.m. and told her that he 

had talked to the friend in Omaha and had been told that 

anything was available. At approximately 10:28 a.m. on 

the same day respondent received a telephone call from 

Gierlich. Respondent asked Gierlich what quantity of 

cocaine she intended to purchase. Respondent then gave 

the telephone number of the person in Omaha to Gierlich 

and advised her that he would also call again ''to make 
sure there's no problem." ... 

The record reflects that prior to the events in March 

1980 the respondent had occasionallv used marijuana 

personally and had purchased marijuana more than once 

from Gierlich, who was a close personal friend. His 

conduct here was motivated by his friendship with 

Gierlich and he receive no remuneration for his efforts. 

The Disciplinary Review Board recommended that the court 

issue a reprimand. . . . 

The recommendation was not accepted by this court and the 

matter was referred to a referee. The referee considered 

the matter solely upon the record a the hearing before 

the Committee on Inquiry. . . . lTlhe referee . . . recommended that respondent be suspended from the 

practice of law for a period of 1 vear, and that 

readmission be denied unless respondent made a 

satisfactorv showinq of rehabilitation from usaqe of 

controlled substances. 

The referee s~ecificallv found that as a result of 

respondent's efforts Judv Gierlich was able to illeqallv 

purchase a controlled substance and respondent's personal 

acauaintance in Omaha was able to sell a controlled 

substance. and respondent knew, or had reason to know, 

that such would be the result of his efforts. (Emphasis 

supplied.) 

State v. Matt (Neb. 1982), 327 N.W.2d 622. 

Without contradiction, the record establishes that the 

Committee was correct in finding that Mr. Matt was untruthful in 

stating that he hadnlt ever used drugs. The record clearly 

supports the finding that Mr. Matt attempted to lead the Committee 

to believe his involvement in the drug transaction was minimal, and 

that Mr. Matt was not candid with the Committee. The dissents 

focus on the number of phone calls made by Mr. Matt as being 

irrelevant. We have not emphasized the number of phone calls as 
being significant. The key aspect is that Mr. Matt consistently 

attempted to minimize his involvement in the drug transaction and 

in the use of drugs. We point to one additional factor. The 

Committee had the opportunity to examine and observe Mr. Matt 

during the course of three separate hearings and had the 

corresponding opportunity to observe his demeanor and to judge his 

credibility. While we are required to make an original review of 

the record, we properly may consider the opportunity on the part of 

the Committee to evaluate the demeanor and to judge the candor of 

Mr. Matt. We do not have that opportunity. Our review of the 

record causes us to adopt the same findings as are above set forth 

on the part of the Committee. 

As a result of its findings, the Committee reached the 

following conclusion: 

5. Mr. Matt has made false statements including 

omission to the Committee. He has failed to exhibit 

candor in the admissions procedure. 

We affirm and adopt that conclusion. 

In its conclusions the Committee stated that Mr. Matt had 

failed to carry his burden of proving that he possessed good moral 

character. As previously pointed out, this burden was improperly 

placed upon Mr. Matt with regard to the first two hearings. After 

our review of the record, we do not find that Mr. Matt was 

adversely affected in any way by the initial placement of the 

burden of proof upon him. Mr. Matt was competently represented by 

counsel who vigorously presented witnesses and arguments in his 

behalf, both before the Commission and before this Court. We 
conclude that Mr. Matt had an adequate opportunity to present all 

information in his behalf and presented the same in considerable 

detail. We therefore affirm the conclusion by the Committee that 

Mr. Matt's conduct was not mitigated by any of the factors or 

circumstances which are contained in the record. After Mr. Matt's 

testimony in the course of the three separate hearings, the 

Committee concluded that it did not believe he could act fairly, 

discreetly, honestly, reasonably and with unquestionable integrity 

in all matters in which he would act as an attorney at law as 

required by Rule 3 (a) of the Rules of Procedure of the Committee on 

Character and Fitness. 

Notwithstanding the findings on the part of the Committee with 

regard to untruthfulness and lack of candor, Mr. Matt argues that 

the denial of his admission to practice is a double jeopardy 

penalty for a "mistakeN he made ten years ago. We point out that 

the application signed by Mr. Matt stated: 

5. I understand that if I have furnished 

significantly false or incomplete information, my 

application may be summarily rejected. . . . (emphasis 

added) . 

We conclude the record clearly establishes Mr. Matt's knowledge 

that he was required to furnish complete information, and that he 

failed to furnish such complete information. Mr. Matt is not being 

penalized for his flmistakelt of ten years ago. He is being 

penalized for his present failure to give truthful and complete 

information to the Commission. 

The dissents raise as an issue the Committee's conclusion that 

Mr. Matt violated Rule 8.2 of the Montana Rules of Professional 

13 
Conduct, when in response to the Committee's request that he 

speculate as to the reasons the Nebraska Supreme Court imposed the 

penalty, he suggested that it was the ill feelings towards Mr. Matt 

on the part of Chief Justice ~rivosha which afforded a reason. At 

subsequent hearings Mr. Matt continued his attack on Chief Justice 

Krivosha. In view of the request by the Committee that Mr. Matt 

speculate as to the reasons for the conduct of the Nebraska court, 

we have concluded that we will not rule upon the issue regarding 

Justice Krivosha. We have concluded that we will disregard the 

Krivosha issue, and determine whether or not the record is 

otherwise sufficient to affirm the conclusion of the Committee. 

In accordance with the standards set forth in Pedersen, we 

have reviewed the entire record and we have concluded that without 

regard to the Krivosha issue, the record supports the unanimous 

decision of the Committee. We hold that Mr. Matt is unfit to 

practice law in the State of Montana. 

I11 

Did the Committee on Character and Fitness violate 

petitioner's constitutional right to due process? 

Mr. Matt maintains that he was denied his basic right to due 

process in violation of the Fourteenth Amendment to the United 

States Constitution and Art. 11, Section 17 of the Montana 

Constitution. In support of this contention, he maintains that the 

scope of review at each of the three hearings was much more broad 

than he had reasonably expected from the notice he received prior 

to each hearing. The Committee maintains that Mr. Matt was 
afforded proper due process under Rule 4(g) of the Rules of 

Procedure of the Cowinittee on Character and Fitness (1987). 

This issue was most recently addressed by this Court in 

Pedersen, 820 P. 2d at 1291. In that case, this Court discussed the 

right to practice one's chosen profession. 

Prior to the 1972 Constitution, it was already recognized 

that the power to regulate the admission of attorneys in 

Montana was a matter peculiarly within the inherent power 

of this Court. Goetz. v. Harrison (2969) , 153 Mont. 403, 

404, 457 P.2d 911, 912. 

However, this power is subject to limits imposed by 

the Federal Constitution. As the United States Supreme 

Court has said: 

A State cannot exclude a person from the 

practice of law or from any other occupation 

in a manner or for reasons that contravene the 

Due Process or Equal Protection Clause of the 

Fourteenth Amendment. 

Schware v. Board of Bar Examiners (1957), 353 U.S. 232, 

238-39, 77 S.Ct. 752, 756, 1 L.Ed.2d 796, 801. Those 

bodies charged with investigating and making decisions 

upon an applicant Is character and fitness to practice law 

in a particular jurisdiction must afford the applicant 

adequate due process of law. . . . The Court added that 

the right to engage in the practice of law is not and 

should not be a matter of grace and favor. Willner v. 

Committee on Character and Fitness (1963), 373 U.S. 96, 

83 S.Ct. 1175, 10 L.Ed.2d 224. In a concurring opinion 

in Willner, Mr. Justice Goldberg discussed the due 

process requirement in these cases: 

The constitutional requirements in this 

context may be simply stated: in all cases in 

which admission to the bar is to be denied on 

the basis of character, the applicant, at some 

stage of the proceedings prior to such denial, 

must be adequately informed of the nature of 

the evidence against him and be afforded an 

opportunity to rebut this evidence. 

Willner, 373 U.S. at 107. 

Rule 4tg) of the Rules of Procedure of the Committee on 
Character and Fitness of the State Bar of Montana provides: 

(g) The Committee shall not be bound by the formal 

rules of evidence. It may in its discretion take 

evidence in other than testimonial form, having the right 

to rely upon records and other materials furnished to the 

Committee in response to its request for assistance in 

its inquiries. The Committee may in its further 

discretion determine whether evidence to be taken in 

testimonial form shall be taken in person at the hearing 

or upon deposition, but all testimonial evidence shall in 

either event be taken under oath. A complete 

stenographic record of the hearing shall be kept, and a 

transcript may be ordered by the Applicant at the 

Applicant's own expense. 

In this case, the initial evidence was provided by Mr. Matt 

with his application for admission and the accompanying 

questionnaire. He had access to the complete investigative file of 

the Committee and the complete transcripts of each hearing for his 

own review. At each successive hearing, the Committee's questions 

became more detailed and specific. Such questioning was the 

logical result as more information was disclosed during the course 

of the proceedings. 

We point out that as discussed under Issue 11, the Committee 

erred in imposing the burden of proof on Mr. Matt. However, we 

conclude that he was in no way prejudiced or misled by that error. 

He received proper notice of the hearings and had every opportunity 

to appear and participate in those hearings. 

We conclude that the record does not establish that Mr. Matt 

was deprived of due process in any manner in the hearings before 

the Committee, We further conclude that he was adequately informed 

of the nature of the evidence against him and was 

opportunity to rebut that evidence. The requirements 

afforded an 

in Pedersen 
were met. 

We hold the Committee did not violate Mr. Matt's 

constitutional right to due process. 

Affirmed. 

We Concur: A 

Justices 
Justice Terry N. Trieweiler dissenting. 

I dissent from the opinion of the majority. The history of 

this matter indicates that the State Bar of Montana Committee on 

Character and ~itness decided early on not to certify the 

petitioner for admission to the Bar, and then over a long period of 

time groped unsuccessfully for reasons until it found one which 

petitioner was never given an opportunity to defend against. From 

the beginning this was a rejection looking for a reason. 

The petitioner was denied the right to practice law in Montana 

for making inconsistent statements about his prior involvement in 

a drug transaction. However, any reasonable interpretation of his 

statement compels the conclusion that they were in no way 

inconsistent. 

The petitioner was also denied admission for stating that he 

had never used drugs, when in fact a ten-year-old Nebraska Supreme 

Court decision refers to earlier use of marijuana. However, 

petitioner was never given the slightest prior indication that his 

immaterial statement regarding the use of drugs was one of the 

possible bases under consideration by the Committee for rejecting 

his application. He was asked no questions about that statement 

and never given an opportunity to reconcile that statement with the 

Supreme Court decision. How can the majority possibly conclude 

under those circumstances that he received adequate notice of the 

complaint against him and an opportunity to respond? 
In order to fully understand just how unfair this result is to 

the petitioner, it is necessary to set out the chronology of events 

that led to the rejection of his application. 

Paul Matt, 111, was admitted to the practice of law in the 

state of Nebraska in 1971. He was admitted to practice in the 

state of Colorado in 1987. 

At the time of his application for admission to practice in 

the state of Montana on February 28, 1990, he had been practicing 

law for 19 years, except for the period of his suspension, and had 

never had a client grievance filed against him in either state. 

With his application, Matt submitted letters attesting to his 

good moral character from two judges, eight attorneys, and four 

non-attorneys, including two former clients. The attorneys 

included close working associates and former employers. Although 

one former employer stated that his firm declined to hire Matt on 

a full-time basis because of his prior disciplinary experience, 

even he attested to Matt's good moral character. In all the 

voluminous documentation that was submitted to the Committee on 

Character and Fitness, no person other than the Committee members 

questioned Matt's honesty, integrity, or competency to practice 

law. 

In March 1980, Matt had been charged with conspiracy to 

deliver cocaine. However, he at no time admitted guilt and was 

never convicted of any crime. After completion of a pretrial 

diversion program, those charges against him were dismissed. As a 

result of those charges, Matt was investigated by the Disciplinary 
Review Board of the Nebraska State Bar Association. After its 

investigation, that board recommended to the Nebraska Supreme Court 

that it issue a reprimand. That recommendation, however, was 

rejected by the Supreme Court and Matt was suspended from the 

practice of law in Nebraska from December 17, 1982, until he was 

reinstated on January 26, 1984. 

In his application to practice in Montana, Matt reported the 

previous disciplinary proceeding and made a general statement of 

the basis for those proceedings. A Committee credit check on Matt 

also disclosed a prior lien by the federal government for income 

taxes that were due. Based on these two pieces of information, the 

Committee wrote to Matt on May 7, 1990, and advised him that the 

Committee had serious concerns about the disciplinary action in 

Nebraska and his neglect of financial responsibility. It advised 

him that for that reason the Committee could not certify him as fit 

to practice law in Montana. It also advised him that if he wished, 

he could appear personally before the Committee. 

Matt exercised his right to a hearing and it was conducted on 

June 27, 1990. At that time, he was advised that the Committee was 

primarily concerned about the primary disciplinary action in 

Nebraska, the tax lien, and other matters that it would bring up 

later. 

Matt explained that the tax liens were imposed based on an 

agreement with the IRS that he initiated himself, and that they had 

been fully satisfied and discharged in 1988. He also provided the 

Committee with copies of the lien releases. 
He was questioned about his prior involvement in two civil 

lawsuits, He explained that one had been resolved and the other 

had been dismissed without any settlement. 

When he was asked about the basis for the disciplinary action 

in Nebraska, he admitted that a friend asked him to help her find 

drugs; that he made a call to a person who could provide her with 

drugs; and that he made another call to his friend to refer her to 

the seller. That was the essence of what he did wrong. Whether 

there were two calls involved, or three calls involved, is really 

immaterial. 

Matt explained that after being charged he was put in a 

pretrial diversion program, that he completed it successfully, and 

that the charges against him were dismissed. He also explained 

that after investigation the disciplinary committee of the Nebraska 

Bar recommended that he be reprimanded by the Supreme Court, but 

that the Supreme Court rejected that recommendation and suspended 

him for a year. He was asked by the Committee to speculate why the 

Supreme Court did not follow the Nebraska Committee's 

recommendation, and he speculated that it may have been because of 

hard feelings on the part of the chief justice with whom he had 

previously had an unpleasant adversarial relationship as an 

attorney. 

At the first hearing, Matt was also questioned about a dispute 

that occurred with the purchaser of a home which he was renting. 

Apparently he had 30 days remaining on his rental agreement and the 
purchaser wanted him to move out immediately after she purchased 

the building. He refused to do so. 

Following that hearing, on August 1, 1990, the Committee wrote 

to Matt and notified him that pursuant to Section 4(b) of the 

Committee's rules, he was denied certification as fit to practice 

law in Montana. The Committee gave the following reasons: 

Section 3 (c) (1) Unlawful conduct, as evidenced by the 

conspiracy to deliver cocaine charge. 

Section 3(c)(3) Making of false statements including 

omissions as evidenced by your omission regarding the 

above charge when being hired at Branny, Hillyard and 

Kudla, and also by the misinformation you gave concerning 

your relationship with Judge Krivosha, and 

Section 3(c) (13) Disciplinary action by a lawyer 

disciplinary agency or other professional disciplinary 

agency of any jurisdiction as evidenced by your 

suspension in Nebraska. 

In other words, the Committee's original decision was based on 

its conclusion that when Matt responded to their request that he 

speculate about the reason for his suspension by the Nebraska 

Supreme Court, he misrepresented that he had had an unpleasant 

prior adversarial relationship with its chief justice. They also 

concluded that when he was subsequently hired to work for a law 

firm in Colorado he made false statements by failing to advise that 

firm of his prior disciplinary experience in Nebraska. Finally, 

the Committee concluded that it was appropriate to continue 

punishing Matt for the error in judgment which led to his previous 

punishment by the Nebraska Supreme Court ten years earlier. 

Matt was advised that under the Committee's rules he could 

request reconsideration and would be granted a formal hearing. He 
made that request and the formal hearing was conducted on 

October 11, 1990. 

At the second hearing, Matt introduced the complete file of 

the divorce case in which he and the former chief justice 

represented opposing parties. The records disclose a long, 

difficult struggle by Matt to discover documents which related to 

the financial condition of Krivosha's client. Between 30 and 40 

letters were exchanged during Matt's effort to discover the 

information. Finally, he moved to compel discovery of the 

documents. Krivosha's response to that motion termed it frivolous 

and harassing. However, the motion was ultimately granted and the 

divorce was resolved in a manner favorable to Matt's client. It 

was only three years later that the question of Matt's suspension 

came before the Nebraska Supreme Court with Matt's former adversary 

then sitting as chief justice. It is not surprising that when 

invited by the Committee to speculate about the reason why the 

Supreme Court departed from custom and ignored its own disciplinary 

board's recommendation, Matt gave the answer that he did. 

Matt also explained the circumstances under which he went to 

work for the Branny, Hillyard firm. At that time, he had moved to 

Colorado where he was studying to take the Colorado bar 

examination. He did not apply for a position as an attorney with 

the Branny, Hillyard firm, but only a clerkship. By then he had 

already been reinstated in Nebraska. He did not feel that his 

prior disciplinary proceeding was relevant to his application 
because he was not being considered for a position as a practicing 

attorney. 

Nearly one year later, in October 1987, he was notified that 

he successfully passed the bar, and at that point one of the 

partners in the firm offered him a regular job. Before accepting 

the job, he explained to that partner that he had been involved in 

the prior disciplinary proceeding in Nebraska and submitted a 

memorandum to the entire firm explaining what had happened. As a 

result of that knowledge, the offer of a job with the firm was 

withdrawn. However, even though he was not given a position as an 

associate, he remained with the firm as a clerk for another 14 

months. He explained that when he applied for the clerkship 

position he was not asked about any prior problems and did not feel 

they were relevant because he was not applying for a position as an 

attorney. 

At the second hearing, he was again examined about the drug 

transaction. He again explained that he had been requested by a 

friend to locate drugs for her. He called an acquaintance in 

another town. Then he called his friend back. His testimony was 

basically the same as it was at the first hearing. Furthermore, it 

was not Matt who characterized his series of conversations as "a 

couple of phone calls.1t It was the Committee member who questioned 

him. The point is that he explained the basic essence of the 

transaction. Whether it involved two or three telephone calls was 

totally irrelevant. 
Following the second hearing, the Committee notified Matt that 

in addition to the matters with which it was previously concerned, 

it also wanted to consider the tax lien, the dispute that occurred 

while he was a tenant, and the two civil lawsuits with which he had 

been involved as possible bases for denying his certification. 

Therefore, a third hearing was set for February 13, 1991. 

~t the third hearing, Matt responded to the additional issues 

raised by the Committee. He explained that after he moved to 

Montana he had rented a home with an agreement that he could remain 

there until March 31. Shortly after the first of March the home 

was sold and the purchaser wanted him to move out immediately. He 

objected based on his rental agreement with the prior owner, but as 

an accommodation to the purchaser, eventually moved out on 

March 25, nearly a week early. 

He pointed out again at the third hearing that the tax liens 

that had been placed against him in 1984 were not based on an 

audit, but in response to his voluntary acknowledgment that he owed 

taxes which he was unable to pay. He immediately entered into an 

agreement to pay the money in installments and satisfied the terms 

of the agreement in 1988. He explained that while he had been 

named a defendant in two civil suits based on business 

transactions, one had been fully settled to the apparent 

satisfaction of the parties, and the other had been dismissed, 

apparently for the reason that it had no merit in the first place. 

No mention was ever made at the third hearing regarding the 

discrepancy in Matt's earlier testimony about drug use and the 
contradictory remarks reported in the Nebraska Supreme Court's 

decision found at State v. Matt (Neb. 1982), 327 N.W.2d 622. In fact, 

when the counsel for the Committee indicated that the decision 

would be made part of the record, she made the following remarks: 

I don't have any further questions at this time, but 

I do have, going back to discussions we had in the 

previous hearing, an opinion from the Northwestern 

Reporter that involves your dismissal from the--or your 

suspension from the Bar there, in Nebraska. I don' t have 

any questions to ask you about it, because it doesn't 

contain anvthina that vou didn't tell us about, but I 

would like to submit a copy of that to the Committee for 

their file. 

. . . To Paul's credit, I mean, I think that it 

pretty much goes along with what he has told the 

Committee, and it doesn't give any indication why the 

Court didn't go along with the recommendations of the 

finder of fact, whatever he was called, the special 

master. [Emphasis added.] 

Not only was Matt not given notice that the Nebraska Supreme 

Court decision would form the basis of the Committee's finding that 

he had been untruthful; not only was he denied an opportunity to 

explain the discrepancy; but he was led to believe, at the only 

time when he could have refuted the Committee's finding, that the 

Committee considered the decision, in all important respects, 

consistent with his prior testimony. Therefore, Matt offered no 

further evidence at that time. 

On May 22, 1991, the Committee found that Matt lacked 

sufficiently good moral character for admission to the State Bar of 

Montana and listed three reasons: 
1. The Committee found that his version of the number of 

telephone calls involved in the drug transaction for which he was 

disciplined in Nebraska was inconsistent by one telephone call with 

the chronology reported in the Supreme Court's decision and that he 

was, therefore, not candid with the Committee. 

2. The Committee found that contrary to his testimony on 

June 27 to the effect that he had not previously used drugs, he had 

purchased and used marijuana on more than one occasion. 

3. The Committee found that when, in response to its 

invitation, he speculated about why the Nebraska Supreme Court had 

not followed its own board's recommendations and blamed Chief 

Justice Krivosha, his speculation violated Rule 8.2 of the Montana 

Rules of Professional Conduct. Rule 8.2 provides that: 

(a) A lawyer shall not make a statement that the 

lawyer knows to be false or with reckless disregard as to 

its truth or falsity concerning the qualifications or 

integrity of a judge, adjudicatory officer, or public 

officer, or of a candidate for election or appointment to 

judicial or legal office. 

After a thorough review of the record, and the incredible 

series of proceedings conducted by the Committee, I strongly 

disagree with the Committee's findings and conclusions. 

First, whether Matt had two conversations, three 

conversations, or twenty conversations with his friend for whom he 

arranged the purchase of illegal drugs, the number is totally 

immaterial. The essence of what he did wrong was arrange for a 

friend to purchase illegal drugs. He admitted that she called him. 

He admitted that he then contacted someone from whom she could 
purchase drugs, and that he then called her back to refer her to 

the seller. Whether there was another call involved makes 

absolutely no difference, and the fact that Matt may have omitted 

mentioning a third call over ten years after the fact indicates 

nothing to me about any intention on his part to mislead the 

Committee. 

Second, the Committee had no right to reject Matt's 

application on the basis of a misstatement which he was never even 

advised was the subject of concern to the Committee. The 

Committee's rules provide for notice; they provide for hearing; and 

they provide for reconsideration after an applicant is notified of 

the reasons for his rejection. In this case, Matt availed himself 

of every opportunity to be heard, and every time he was advised of 

another reason that the Committee was considering for rejecting his 

application, he was able to offer satisfactory evidence that the 

reason had no merit. Apparently frustrated by this process, the 

Committee simply decided to convict him of something which he had 

no prior notice of and no opportunity to rebut. How does the 

majority reconcile this with its prior decision in In the Matter of 

KennethJ. Pedersen (Mont. 1991) 48 St.Rep. 988, wherein it stated that: 

Those bodies charged with investigating and making 

decisions upon an applicant's character and fitness to 

practice law in a particular jurisdiction must afford the 

applicant adequate due process of law. . . . The court 

added that the right to engage in the practice of law is 

not and should not be a matter of grace and favor. 

Willner v. Committee on Character and Fitness (1963) , 373 

U.S. 96, 83 S.Ct. 1175, 10 L.Ed.2d 224. In a concurring 

opinion in WiNner, Mr. Justice Goldberg discussed the due 

process requirement in these cases: 
"The constitutional requirements in this 

context may be simply stated: in all cases in 

which admission to the Bar is to be denied on 

the basis of character, the applicant, at some 

stage of the proceedings prior to such denial, 

must be adeauately informed of the nature of 

the evidence asainst him and be afforded an 

adeauate o~~ortunitv to rebut this evidence.la 

Mner, 373 U.S. at 117. [~mphasis added.] 

In this case, Matt was given no notice that a basis for denial 

of his application would be his statement that he had never 

consumed drugs, and he was afforded no opportunity to explain or 

reconcile the apparent contradiction in that statement and the 

statements made by the Nebraska Supreme Court. ~enying his 

application on the hasis that he had been untruthful to the 

Committee, therefore denied him due process of the law. 

Finally, I find it simply preposterous that the Committee 

invited Matt to speculate about why the Nebraska Supreme Court 

rejected its disciplinary committeefs recommendation, and then when 

he did so, used that speculation against him. The denial of his 

application on that basis is wrong for several reasons. First of 

all, he merely expressed an opinion, he did not make a statement 

that he knew to be false or with reckless disregard of the truth. 

Second, based upon the documentation subsequently provided by Matt, 

and Krivosha's apparently misinformed denial that he had ever even 

handled a case against Matt, it would appear that his opinion had 

some basis in fact, By no stretch of the imagination did the 
opinion which the Committee expressly solicited violate Rule 8.2 of 

the Montana Rules of Professional Conduct. 

For these reasons 1 dissent from the majority opinion. I 

would reverse the decision of the Committee on Character and 

Fitness. Whether Matt had the burden of proof or not, he has 

proven by more than a preponderance of the evidence that he is 

possessed of satisfactory moral character to practice law in the 

state of Montana. 

A thorough review of this record can lead to only one 

conclusion. That is that both the Committee on Character and 

Fitness, and the majority of this Court, are bent on punishing Matt 

for an indiscretion committed over ten years ago--one for which he 

has already been punished and forgiven by the state of Nebraska and 

the state of Colorado. It is regretful that this applicant can 

never be forgiven in the state of Montana. 
Justice Karla M. Gray, concurring in part and dissenting in part. 

I concur with the majority opinion as to issue one and I also 

concur with portions of that opinion as to issue two. I 

respectfully dissent as to issue three. 

The Committee on Character and Fitness grounded its conclusion 

that Mr. Matt was unfit to practice law in Montana on Mr. Matt's 

supposed violation of Rule 8.2 of the Montana Rules of Professional 

Conduct, as well as his lack of candor and untruthfulness. The 

majority first correctly distances itself from the Committee's 

findings on the Rule 8.2 violation. It then concludes that it can 

affirm the Committee based on Mr. Matt's lack of candor and 

untruthfulness. I cannot agree. 

Even considering the Committee's ability to observe Mr. Matt's 

demeanor and judge his credibility, it is my view that the record 

does not support a conclusion that Mr. Matt attempted to lead the 

Committee to believe that his involvement in the Nebraska drug 

transaction was minimal. Mr. Matt appeared before the Committee 

numerous times and was forthcoming in responding to all inquiries. 

Any minor discrepancies between his recollection of the events that 

took place a decade or more before these proceedings and the 

findings of the Nebraska Supreme Court cannot seriously or fairly 

be characterized as an attempt to mislead; much less do any such 

discrepancies support the majority's "key aspect . . . that Mr. 

Matt consistently attempted to minimize his involvement in the drug 

transaction. . . . " (Emphasis added.) The failure of both the 
Committee and the majority of this court to present specific record 

support for this nebulous basis for prohibiting Mr. Matt from being 

admitted to practice law in Montana highlights the fact that no 

such support exists. 

This leaves as the sole ground of support for the Committee's 

action, and this Court's affirmance, only one statement made by Mr. 

Matt: the statement having to do with his drug use. That statement 

is characterized by both the Committee and the majority as an 

assertion by Mr. Matt that he had never used drugs. First, I am 

not convinced that this statement even rose to the level of an 

affirmative statement about his drug use. My reading of the 

paragraph of Mr. Matt's testimony at the June 27, 1990 hearing 

relied on by the majority suggests that the statement regarding 

drug use was merely a characterization of the ultimate opinions of 

the county attorney's office investigating the conspiracy with 

which Mr. Matt was charged, rather than an affirmative statement by 

Mr. Matt that he had never used drugs. Second, if this statement 

were an affirmative statement of lack of drug use and if it had 

been inquired into and indicated to be a concern, and if Mr. Matt 

subsequently had failed to persuade the Committee that the 

statement did not reflect a lack of candor, I would agree that it 

would provide a sufficient basis for a conclusion that Mr. Matt is 

unfit to practice law in Montana. But none of that occurred. For 

these reasons, I cannot agree that the Committee "properly" 

concluded that Mr. Matt is unfit to practice law here. 

This leads directly to my dissent from the majority's 
conclusion that Mr. Matt's constitutional right to due process was 

not violated. The majority correctly notes that the Committee's 

questions logically became more detailed and specific at each 

successive hearing. A fair reading of the record requires a 

corresponding conclusion that Mr. Matt addressed the Committeels 

concerns, to the extent those concerns were revealed to him, in a 

direct and responsive manner. Nothing that occurred reasonably 

could have alerted Mr. Matt to Committee concern over one 

statement---particularly one statement at the initial hearing which 

was not relied on by the Committee in its original refusal to 

certify Mr. Matt---in a very voluminous record. In light of 

Committee counsel's remark at the third hearing that he had no 

questions about the Nebraska Supreme Court opinion relating to Mr. 

Matt's suspension from the Nebraska Bar "because it doesn't contain 

anything you didn't tell us about . . .," the Committee's failure 

to give Mr. Matt an opportunity to respond to its concern regarding 

the one statement that. he had never used drugs constituted a denial 

of his constitutiona:l right to be "adequately informed of the 

nature of the evidence against him and be afforded an opportunity 

to rebut this evidence." In the Matter of Kenneth J. Pedersen 

(Mont. 1991), 820 P.2d 1288, 1291, 48 St.Rep. 988, 989-90, citing 

Mr. Justice Goldberg's concurring opinion in Willner v. Committee 

on Character and Fitness (1963), 373 U.S. 96, 107, 83 S.Ct. 1175, 

1182, 10 L.Ed.2d 224, 232. 

I would reverse the Committee's action to the extent it was 

based on the Rule 8.2 violation or an attempt to mislead, vacate 
that portion of the ~ommittee's findings and conclusions based on 

Mr. Matt's statement that he had never used drugs, and remand to 

the Committee for further proceedings relating solely to the 

statement about past drug use and for a final decision as to 

whether Mr. Matt is possessed of sufficient moral character to 

practice law in Montana. 
April 2, 1992 

CERTIFICATE OF SERVICE 

I hereby certify that the following order was sent by United States mail, prepaid, to the following 

named: 

Carey E. Matovich 

MATOVICH, ADDY & KELLER, P.C. 

225 Petroleum Building 

2812 First Avenue North 

Billings, MT 59101 

Annie M. Bartos, Chair 

Character and Fitness Committee 

P.O. Box 1051 

Helena, MT 59624 

Jan Weber, Admissions Coordinator 

State Bar of Montana 

26 N. Last Chance Gulch, Suite 2- 

Helena, MT 59624-0577 

Andrew P. Suenram 

Attorney at Law 

P.O. Box 1366 

Dillon. MT 59725 

ED SMITH 

CLERK OF THE SUPREME COURT 

STATE OF MONTANA