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 atLaw,Dillon,Montana.

Filed: Submitted on briefs: October 17, 1991

8Decided: April 2, 1992

ClerkJustice 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 BarfsCommittee 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 reconsiderationhearingwas held before the Committee 

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

### Mr. Matt by letter that they were still 

### in theprocess 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 itemsdiscussed in the formalhearing aswe11 as additional itemsnotdiscussed at the formalhearing butpreviously 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 formalhearingheld at the StateBar ofMontana (StateBar) office; (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, throughhis 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 Committeetsdenial 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 forAdmission 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 3for the Montana Bar ~xaminationmust be of good moral character. It shallbe the responsibilityof 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 withthe 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. ~nvestigationof Applicants. The committee shall process the applicant's Application and Questionnaireand,wherenecessary, otherwiseinvestigate 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 theprocessing 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 fitnessto take thebar examinationorbe admitted to practice 

### inMontana,

# .

# . .TheRules 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 thepower and obligation to regulatethe admissionof attorneys to the Montana 

### Bar. Mont. Const. art. VII, g 2,

### cl. 3. The Committeeon Characterand Fitness assists this Court in fulfilling its obligation to regulate the admissionof attorneys inMontana. However,theultimate decision regarding theadmission of attorneys inMontana rests exclusively with this Court. Upon reviewing a final decision of the Character and Fitness Committeewe 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 bythe 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 theMontana Bar. The Committee will have heard testimonial evidence and will havehad the opportunityto observe thedemeanor and judge the credibility 

### of the applicant or other witnesses. However, inasmuchas

### we are designatedby the MontanaConstitutiontoultimatelymake 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 "goodmoral 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 committeeRules 

### inproviding that theburden ofproof 

### 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 goodmoral characterwas 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 

### theMontana Rules of Professional Conduct, the Committee's decisiontodeny the applicant's admissionwas 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 

### theunderstanding that thegood 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 regularinvestigation materials,post regular investigation materials, and conducted three hearings with Mr. Matt present, and unanimously concluded thatMr. Matt 

### was untruthful in his testimony before the Committee, and thus, failed to prove his good character. A significantportion of the questioning of and testimony by 

### Mr. Matt concerned an incident which occurred ten years ago 

### in the State ofNebraska whileMr. Matt was a member of theNebraska State Bar. The Committeemade 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 apre-trial diversion program and the criminal charges against him were dismissed. 3. The Committee on Inquiry of the First Judicial DistrictoftheState ofNebraska 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 therecommendationandupondenovo review,suspended

### Mr. Matt from thepractice of law 

### foroneyear. 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 reinstatementto theNebraska State Bar in January 1984. In addition, he applied for and was admitted to the Colorado State Bar.

11. 

### Mr. Matt has lead thisCommitteetobelievehis 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

### theamounts of cocainethatwould be sold andarranains 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~remeCourt 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 fromGierlichwho was a closepersonal 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 arematerial to the issuesbefore the Committee and lead theCommittee to doubt his candor in otherareas aswell. (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 chargeswere filed because oftwotelephone conversations 

### Ihad 

### with a close friend ofmine in early March of 1980. 

### Ihad not seen this friend for three or fourmonths. She asked me if I knewwhere she might obtain some cocaine, and 

### Itold her Idid not. Shemade 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 interceptedby law enforcement officerssincemy 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 firsthearing before the Committee,Mr. Matt testified regarding the cocaine dealings as follows:A. [TJheessence of the chargesby the State Bar, or the inquiry by the State Bar was because of charges filed againstme by the Lancaster CountyAttorney's office, as I set forth. That was based on a close friend of mine who Ihadn't seen for four, five, sixmonths 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. Shethen askedme, Whatabout Omaha?" Iwas 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 tomv 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 calledme, theyhad chargedme; and Iwent through a year of investigation and procedure with theLancaster County Attorney's officeuntil they realized that Iwas 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 ingetting anythingout of Judy'ssituation,and it was just 

### a bad mistake onmy 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, Ihad 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 thenhad 

### a full hearing inwhich there was sevenmembers who had all the records of the Lancaster CountyAttorney and all the records of all the investigations.

# . . . They decided,afterthat, 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 exactlywhat 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. Thendid you call Curt and ask if he could help Judy?A. Judy called me on a Friday. I said that I'd checkwith Curt if Isaw Shirley. Then Saturday morning, I sawJudy's note and thought, l1Oh,that's right, I said I'dcheckwith Curt," and then Icalled Curt. So itwas 

### 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 detailedMr. Matt's involvement inthecocainetransaction. The opinion stated: The formal chargesallege that on oraboutMarch 7, 1980, the respondent received a telephone call at his law office from a personal friend, Judy Gierlich. Gierlich asked therespondent where shecould obtain

### somecocaine. The respondent first told her that he did not know, but on furtherquestioning agreed to contact a friend of his in Omaha, Nebraska, concerning the availability of cocaine and then recontacther. On 

### or about March 8, 1980, respondent called Gierlichatapproximately 10:15 a.m. and told her thathe 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 ''tomake

### 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 receiveno remuneration forhis efforts.

The Disciplinary Review Board recommended that the court issue a reprimand. 

# . . 

# . Therecommendationwas notacceptedby this courtand the matter was referred to a referee. Therefereeconsidered 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'seffortsJudv Gierlichwas able to illeqallv purchaseacontrolled substanceandrespondent'spersonal 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 thatMr. Matt attempted to lead the Committee tobelievehis involvement in thedrug transactionwasminimal,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 asbeing 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 observehis demeanor and to judgehis credibility. While 

### we are required to make an original review of the record,weproperlymay consider the opportunityon thepart 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 causesus 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 carryhis 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. Weconclude 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 circumstanceswhich 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 theRules of Procedure of the Committee on Character and Fitness. Notwithstanding the findingson thepart of the Committeewith 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. Thedissentsraise as an issue theCommittee's conclusionthat Mr. Matt violated Rule 8.2 of the Montana Rules of Professional 13Conduct, when in response to the Committee's request that he speculate as to the reasons theNebraska Supreme Court imposed the penalty,he suggested that itwas the ill feelings towardsMr. 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 thatwithout 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,hemaintains 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 wasafforded 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. Inthat case, this Court discussed the right to practice one's chosen profession. Priorto the 1972Constitution,itwas already recognized that thepower to regulate the admission of attorneys in Montana wasa matterpeculiarlywithin the inherent power of this Court. Goetz. v. Harrison (2969)

## , 153Mont. 403, 404, 457 P.2d 911, 912. However,this power is subject to limits imposedby the Federal Constitution. As theUnited States Supreme Court has said: A State cannot exclude a person from the practice of law or from any other occupation in amanner 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 uponan applicantIscharacterand fitnesstopractice 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 contextmay be simply stated: in all cases in which admission to the bar is to be denied on thebasis of character, the applicant, at some stage of the proceedingsprior to suchdenial, 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 onCharacter 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 otherthan testimonial form,having the right to relyupon recordsand 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 inperson at thehearing 

### orupondeposition,but all testimonial evidenceshall 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 asmore informationwas 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 thathewas in no way prejudiced ormisled by that error. He received proper notice of thehearingsand 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 thathe was adequately informed of the nature of the evidence against him and was opportunity to rebut that evidence. The requirementsafforded an in Pedersenwere 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 ~itnessdecided early on not to certify the petitioner foradmission to the Bar, and then over a longperiod of time groped unsuccessfully for reasons until it found one which petitioner was never given an opportunityto defend against. From the beginning this was a rejection looking for a reason. Thepetitionerwas denied the right topractice 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 considerationby the Committee for rejecting his application. He was asked no questions about that statement and never given an opportunityto reconcile that statementwith 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?

### Inorder to fullyunderstand just howunfair thisresult is to the petitioner, it isnecessaryto 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 19years,except for theperiod of his suspension,and had

never had a client grievance filed against him in either state. Withhis application,Matt submitted letters attesting tohis good moral character from two judges, eight attorneys, and four non-attorneys, including two former clients. The attorneys included closeworking 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 Committeemembers 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 diversionprogram, those charges against himwere dismissed. As a result of those charges,Matt was investigatedby the Disciplinary

### Review Board of the Nebraska State Bar Association. After its investigation,thatboard recommendedtotheNebraska SupremeCourt 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 thatwere due. Based on these twopieces 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 certifyhim as fit topractice law inMontana. It also advisedhim that if he wished, he could appear personally before the Committee. Matt exercised his right to a hearing and itwas conducted on June 27, 1990. At that time, he was advised that the Committeewas 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 

### thathe initiatedhimself, and that theyhad 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 investigationthedisciplinarycommitteeof theNebraska Bar recommended that he be 

### reprimanded by 

### the Supreme Court, but 

### that the Supreme Court rejected that recommendation and suspended him 

### for

### ayear. He was asked

### by the Committeeto speculate why the Supreme Court did 

### not follow the 

### Nebraska Committee's recommendation,andhe speculated that it may havebeen 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 firsthearing,Mattwas also questionedabout adispute that occurred 

### with the purchaser of a home which he was renting. Apparentlyhehad 30

### days remaining onhis rental agreement and the

### purchaser wanted him to move out immediately after she purchased the building. He refused to do so. Following thathearing, 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 alsoby themisinformationyou gave concerning your relationshipwith 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. Inother words, the Committee'soriginal decisionwasbased 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 relationshipwith its chief justice. They also concluded that when he was subsequently hired to work for a law firm inColoradohemade false statementsby failingto 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 andwould be granted a formalhearing. 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 struggleby 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 thatmotion termed it frivolous and harassing. However, themotionwas 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

camebefore theNebraska SupremeCourt withMatt's formeradversary then sitting as chief justice. It is not surprising that when invited by the Committee to speculate about the reason why the Supreme Courtdeparted fromcustomand ignored itsowndisciplinary 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,hehad 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

### becausehewas not being considered for a position as apracticing 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 thoughhe 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 positionhe was not asked about any prior problems and did not feel theywere relevant because he was not applying for aposition 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 testimonywas basically the same as itwas at the firsthearing. Furthermore,it

was not Matt who characterized his series of conversations as "a coupleof phone calls.1tItwas 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 callswas totally irrelevant.

### Following the secondhearing, the Committee notified Matt that in addition to thematters with which it was previously concerned, it alsowanted 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 thirdhearing,Matt responded to the additional issues raised by the Committee. He explained that after he moved to Montana he had rented ahomewith an agreementthat 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 objectedbased onhis rentalagreement 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 inresponsetohisvoluntary acknowledgmentthat he owed taxes which he was unable to pay. He immediately entered into an agreement topay themoney 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 firstplace. 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, shemade the following remarks: 

### Idon't have any furtherquestionsat 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 fromthe Bar there, inNebraska. 

### Idon'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 decisionwould formthe 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 sufficientlygood moral character for admissiontothe StateBar of Montana and listed three reasons:1. 

### The Committee found that his version of the number of telephone calls involved in the drug transaction forwhich he was disciplined in Nebraskawas inconsistentby one telephone call with the chronology reported in the SupremeCourt's decisionand thathe was, therefore, not candid with the Committee. 2. 

### The Committee found that contrary to his testimony on June 27 

### to the effect thathehad not previouslyused drugs, hehad purchased and used marijuana on more than one occasion. 3. 

### The Committee found that when, in response to its invitation,he speculated aboutwhy theNebraska Supreme Court had not followed its own board's recommendations and blamed Chief Justice Krivosha, his speculationviolated Rule 8.2 

### of theMontana Rules of Professional Conduct. Rule 8.2 

### provides that: 

### (a) A lawyer shall not make a statement that the lawyerknows tobe false or with reckless disregard as to its truth or falsity concerning the qualifications or integrity of a judge, adjudicatory officer, or public officer,orof a candidate for election or appointmentto 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 conversationswith his friend forwhom he arranged the purchase of illegal drugs, the number is totally immaterial. The essence of what he did wrong was arrange for a friend topurchase illegal drugs. He admitted that she calledhim. 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 applicationon the basis of amisstatement which he was never even advised was the subject of concern to the Committee. The Committee's rulesprovide for notice;theyprovide 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 reasonthattheCommitteewas 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 

### IntheMatter

### of KennethJ.Pedersen 

### (Mont. 1991) 48St.Rep. 988,wherein it stated that: Those bodies charged with investigating and making decisions upon an applicant's character and fitness to practice law inaparticular jurisdictionmust afford the applicant adequate due process of law. 

# .

# . . The court added that the right to engage in thepractice of law is not and should not be a matter of grace and favor. Willnerv. Committee on Characterand Fitness (1963)

## ,373 U.S. 96, 83 S.Ct. 1175, 10 L.Ed.2d 224. In a concurring opinion in WiNner, 

### Mr. JusticeGoldbergdiscussed 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 

### theproceedings 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.]

Inthis case,Matt was 

### givenno notice that abasis fordenial 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. ~enyinghis 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 

### itsdisciplinarycommitteefs recommendation,and thenwhen 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

### uponthe

### documentation subsequently providedbyMatt, 

### and Krivosha's apparentlymisinformed denial that he had ever even handled a case against Matt, 

### it would appear that his opinionhad

some basis 

### in fact, 

### By no stretch of 

### the imagination did 

### the

### opinionwhich theCommittee expressly solicitedviolateRule 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 

### satisfactorymoral 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 themajority of thisCourt, arebent onpunishingMatt 

### for an indiscretion committed over tenyears ago--one forwhich he 

### has alreadybeen

### 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

### concurwith the majority opinion as to issue one and 

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

### respectfully dissent as to issue three. The Committee on Characterand Fitness grounded its conclusion that Mr. Matt was unfit to practice law in Montana on Mr. Matt's supposedviolation of Rule 8.2 

### of theMontana 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 consideringthe Committee'sability to observeMr. 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. Anyminor discrepancies betweenhis 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 consistentlyattempted tominimizehis involvement inthe

### drug transaction. 

# . . ." 

### (Emphasis added.) The failure of both theCommittee and themajority of this court topresent specificrecord support for thisnebulous basis forprohibitingMr. 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 thisCourt's affirmance,only one statementmadebyMr. Matt: the statement having to dowithhis druguse. 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 usewasmerely a characterization of the ultimate opinions of the county attorney's office investigating the conspiracy with which Mr. Matt was charged, rather thanan affirmative statementby 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, 

### Iwould agree that it would provide a sufficientbasis for a conclusion that Mr. Matt is unfit to practice law inMontana. 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 thatMr. Matt's constitutional right to due processwas 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 statementat 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 suspensionfromtheNebraska Bar "becauseitdoesn't contain anything you didn't tell us about 

# . . .,"the Committee's failure to giveMr. Matt an opportunityto respond to its concernregarding the one statement that.hehad never used drugs constituted adenial 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, vacatethat portion of the ~ommittee'sfindings 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.April2, 1992 CERTIFICATEOFSERVICE Ihereby certify that the followingorderwas sentby United Statesmail, prepaid,tothe following named: CareyE.Matovich MATOVICH, ADDY &KELLER, P.C. 225Petroleum Building 2812FirstAvenue North Billings, MT 59101 AnnieM.Bartos,Chair CharacterandFitness Committee P.O. Box 1051 Helena, MT 59624

JanWeber,AdmissionsCoordinator StateBarofMontana 26N. LastChanceGulch,Suite2- Helena, MT 59624-0577 AndrewP. Suenram Attorney at Law P.O. Box 1366 Dillon. MT59725

EDSMITH CLERKOFTHESUPREMECOURT STATEOFMONTANA