A federal bankruptcy judge who filed a disciplinary complaint about a lawyer was properly allowed to testify during the lawyer’s disbarment trial, the Texas Supreme Court said Friday.
The court, in an unsigned per curiam opinion, reversed a 13th Appeals Court ruling that remanded the disciplinary case against Mark Cantu for a new trial. The Corpus Christi-based appeals court had concluded, over a dissent, that admission of the judge’s testimony was reversible error.
In Commission for Lawyer Discipline v. Cantu the Supreme Court agreed with the commission that allowing the bankruptcy judge’s testimony was not error.
“In this case, as in others, the judge is the complainant who filed the grievance against the lawyer. Disallowing testimony from judges in such cases would place judge-initiated grievances at an artificial disadvantage relative to other grievances in which the complainant may freely testify,” said the court.
Admitting the bankruptcy judge’s redacted opinion was a fair response to Cantu’s claims during trial that there was no evidence of misconduct other than the judge’s opinion, the court said.
The disciplinary action arose from Cantu’s conduct in his personal bankruptcy proceeding. Judge Marvin Isgur declined to discharge the McAllen lawyer’s personal bankruptcy because of misconduct that Isgur said violated several Texas rules for professional conduct.
Isgur later testified during Cantu’s disbarment trial before a Hidalgo County jury that Cantu “displayed a pattern of omission, obfuscation and noncompliance” and “had given false oaths in the bankruptcy court.” Isgur also testified that Cantu “improperly concealed and transferred assets” and “refused to comply with lawful orders.”
Cantu offered several witnesses who testified that his conduct did not violate disciplinary rules. Cantu appealed his disbarment and in 2018 the Corpus Christi appeals court supported his contention that Isgur’s testimony should have been excluded.
The court of appeals relied heavily on the Texas Supreme Court’s 1991 decision in Joachim v. Chambers. That was a lawyer malpractice case in which a judge who was not involved in the case underlying the malpractice claim was called as an expert witness.
In Joachim the court held that the testimony of a judge as an expert witness on behalf of another judge threatens public confidence in the integrity and impartiality of the judiciary. The court said its ruling on Cantu’s appeal, which involves the judge himself as the complainant, is not inconsistent with Joachim, which did not preclude judges from testifying as a general rule. Moreover, excluding the judge’s testimony in Cantu’s case would have allowed Cantu to portray Isgur’s failure to appear as a weakness in the disciplinary case.
“Thus, whereas Joachim sought to protect the integrity of the judiciary by limiting judicial expert testimony, in Cantu’s case, excluding judicial testimony could have had the opposite effect by suggesting to the jury, at Cantu’s urging, that judges do not stand behind their accusations,” the court said.
Matthew Greer, appellate counsel for the Office of Chief Disciplinary Counsel, represented the commission. David Gunn of Beck Redden represented Cantu. The court did not hear oral arguments in the case.
Read the court’s opinion here.