Disbarred lawyer loses appeal based on judge's testimony against him
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A federal judge who filed a grievance against a lawyer for conduct in his personal bankruptcy was permitted to testify against the lawyer in his disciplinary case, the Texas Supreme Court has held.
Testimony by a judge in such circumstances may be not only appropriate but required, the state supreme court said in an Oct. 25 opinion. Texas Lawyer and Law360 have coverage.
Mark Cantu was disbarred in April 2016 after U.S. Bankruptcy Judge Marvin Isgur testified that Cantu improperly concealed and transferred assets in his bankruptcy and “displayed a pattern of omission, obfuscation and noncompliance.” Isgur testified as a fact witness in the discipline case.
Isgur had denied a bankruptcy discharge because of Cantu’s conduct.
Cantu had contended Isgur’s testimony amounted to improper expert testimony that essentially told jurors how to vote. (Texas provides for a jury trial in legal ethics cases.)
An intermediate appeals court ruled in May 2018 that Cantu was entitled to a new ethics trial because of Isgur’s testimony. The intermediate court cited a Texas Supreme Court decision that barred admission of expert testimony by a judge in a legal-malpractice case.
The Texas Supreme Court said the malpractice decision “did not announce a broad and general rule against courtroom testimony by judges.” Barring judicial testimony in disciplinary cases “would be particularly ill-advised,” the supreme court said.
“In this case,” the supreme court said, “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.”
The Texas Supreme Court also upheld admission of a redacted version of Isgur’s opinion that denied the bankruptcy discharge and cited the reasons why.
The Texas Supreme Court reversed the intermediate court and remanded Cantu’s case to allow the appeals court to consider other issues that it hadn’t reached.
Cantu denies violating any disciplinary rules. “Hopefully the court of appeals will listen to our legal arguments, and this nightmare will be over for me and my family,” Cantu told Texas Lawyer. “I’m really a good guy.”
