Corpus Christi’s Thirteenth Court of Appeals has reversed the disbarment of a McAllen lawyer, ruling it was wrong to allow a federal judge to testify in a disciplinary case that the attorney had displayed a pattern of “omission, obfuscation and noncompliance” during bankruptcy proceedings.
The State Bar of Texas’ Commission for Lawyer Discipline brought a disciplinary action against McAllen attorney Mark A. Cantu III, alleging he committed professional misconduct by failing to disclose significant assets in bankruptcy filings, failing to turn over assets belonging to the bankruptcy estate and making material false oaths during his bankruptcy proceedings.
U.S. Bankruptcy Judge Marvin Isgur wrote a 72-page opinion denying Cantu a discharge after concluding that Cantu refused to comply with court orders, later sending his decision to the State Bar for their consideration. The bar then filed a disciplinary case against Cantu in a state district court and called Isgur as its first witness during a jury trial.
Isgur testified at trial that the denial of a discharge in a bankruptcy case is a rare event, and that Cantu had given false oaths before the bankruptcy court, improperly concealed and transferred assets belonging to the bankruptcy estate, and refused to comply with court orders.
Isgur also testified that he bore no ill will toward Cantu, except for one thing—he disobeyed lawful orders of the court. “Mr. Cantu told me that if I took certain actions, that he would file a judicial misconduct complaint against me, and, basically I said, ‘Go ahead.’”
Isgur later recused himself from Cantu’s bankruptcy case.
After the jury found Cantu violated the Texas Disciplinary Rules of Professional Conduct, the trial court judge entered a judgment of disbarment against him. Cantu appealed the decision to the Thirteenth Court, arguing that the trial court judge erred by allowing Isgur to testify in his trial.
In a 2-1 majority decision, the Thirteenth Court agreed with Cantu that Isgur should not have been allowed to testify as a witness in his case. In reaching its conclusion, the Thirteenth Court cited Texas Supreme Court’s seminal 1991 decision in Joachim v. Chambers, which held that a retired judge could not testify as an expert witness in a legal malpractice case under Canon 2 of the Texas Code of Judicial Conduct. That canon prevents a jurist from lending “the prestige of judicial office to advance the private interests of the judge or others.”
The Thirteenth Court concluded that by appearing as a sitting judge acting in an official capacity that Isgur had conferred “the prestige and credibility of judicial office” to the commission’s position that Cantu should be disciplined.
“In providing his testimony, the judge discussed his official orders and his opinion rendered in the Cantu proceedings and interpreted those orders and opinion for the jury,” wrote Justice Don Wittig. Wittig, a retired justice from Houston’s Fourteenth Court of Appeals, was assigned to the appellate panel by the Texas Supreme Court. “In this regard, we note that litigants are generally not entitled to discover the mental processes leading to judicial decisions. We further note that the trial court did not provide the jury with any cautionary instructions that a judge’s testimony is not entitled to greater weight merely because the witness is a judge.”
The decision reverses Cantu’s judgment of disbarment and remands his disciplinary case back for a new trial.
Justice Gina Benavides dissented to the majority opinion, noting that Isgur’s testimony did not rise to the level of an expert witness, and he should be allowed to testify as a lay witness in the disciplinary case. She also wrote that the judge’s testimony was necessary in the disciplinary case.
“Judge Isgur did testify about legal matters, but Cantu’s alleged behavior and actions in those specific legal matters serve as the basis for the Commission’s disciplinary proceeding,” Benavides wrote. “Each piece of Judge Isgur’s testimony was necessary to aid the jury in ultimately determining whether Cantu violated the disciplinary rules.”
“Accordingly, based on the unique nature of the proceedings and specific knowledge possessed by Judge Isgur, such testimony was essential to the Commission’s case and no substitute testimony was available, particularly since Judge Isgur was the chief complainant to the Commission regarding what he personally witnessed,” Benavides wrote.
Cantu said he was elated with the ruling and is waiting for the Thirteenth Court to issue its mandate in the case before resuming his personal injury practice.
“They put me back to square one,” Cantu said of the majority decision. “I’m very pleased with the decision.” Cantu also noted that he was represented by counsel during the bankruptcy case and did nothing wrong during those proceedings.
Claire Mock, a spokeswoman for the Bar’s Office of Chief Disciplinary Counsel, which represents the Commission for Lawyer Discipline, said a decision on whether to retry Cantu’s disciplinary case has not yet been made.