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.
Submitted on briefs: October 17, 1991
8 Decided: April 2, 1992
Filed:
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) office;
(b) a formal hearing held via conference call; (c) written
argument; or (d) letting the record stand as s t a t e d i n 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
Committeetsdenial of his certification.
I
What is the proper standard of review for the Court to apply
to a decision of the Committee on Character and Fitness?
This Court issued new rules regarding admission to the State
Bar, 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.
S e c t i o n 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 a c t in accordance w i t h the standards set f o r t h 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 n e c e s s a r y , o t h e r w i s e i n v e s t i g a t e
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 t h e
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~endentreview 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, w e
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 Itgoodmoral 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 ~dmissionto 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 f o r 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 ~ o i n t
of
determining the amounts of cocaine that would be sold and
arranains the sale. The Committee finds that by
down~lavinathis 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
O m a h a . (Emphasis supplied.)
At the first hearing before the Committee, Mr. Matt testified
regarding the cocaine dealings as follows:
A. [TJheessence 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, W h a t 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 I had Sudv c a l l
So
him.
.
. . She later w a s arrested, and because she had
called me, they had charged me; and I went through a year
of investigation and procedure with t h e 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 a n y t h i n g 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 did you have to do in the pretrial
diversion?
A. I had 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, a f t e r 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~ecificallvfound 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
of
penalized for his flmistakelt 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 ~rivoshawhich 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 C o w i n i t t e e 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 w a s 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 I 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 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 4 t g ) 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 h i m and was afforded an
opportunity to rebut that evidence. The requirements 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 rebut this evidence.la
to
M n e r , 373 U.S. at 117. [~mphasisadded.]
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 h a s i s 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 committeefsrecommendation, and then when
he did so, used that speculation against him. The denial of his
application on that basis is wrong f o r 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