New ethics trial for disbarred lawyer due to bankruptcy judge’s testimony
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A Texas appeals court has ruled that a disbarred lawyer should get a new ethics trial because a court erred by allowing a federal bankruptcy judge to testify about the alleged misconduct.
The Thirteenth Court of Appeals in Corpus Christi reversed the April 2016 disbarment of Mark Cantu in a 2-1 decision on May 31, report Texas Lawyer and the Brownsville Herald.
Cantu, of McAllen, was disbarred based on allegations that he failed to disclose significant assets during bankruptcy proceedings. A trial judge allowed U.S. Bankruptcy Judge Marvin Isgur to testify before jurors. (Texas provides for a district court jury trial in legal ethics cases).
Isgur had denied Cantu a discharge, and forwarded his opinion to the state bar for consideration. During Cantu’s ethics trial, Isgur testified that Cantu had given false oaths in bankruptcy court, improperly concealed and transferred assets, and refused to comply with court orders. He said Cantu had “displayed a pattern of omission, obfuscation and noncompliance” and his actions “were the most litigious that I’ve ever seen in an individual bankruptcy case.”
Isgur acknowledged he has some “hard feelings” against Cantu, but only because he disobeyed lawful court orders. He also said Cantu had threatened to file a judicial misconduct complaint against him if he took certain actions.
“Basically, I said, ‘Go ahead,’ ” Isgur testified. He ultimately recused himself from the underlying bankruptcy matter.
The appeals court said Isgur’s role as a judge conferred the prestige and credibility of judicial office to the position of the Commission for Lawyer Discipline. His testimony wasn’t necessary because the bankruptcy trustee appeared at the trial and could have testified to the events, the appeals court said. The court also noted that the trial court did not give a cautionary instruction that a judge’s testimony is not entitled to greater weight because of his position.
A dissenting appellate judge said Isgur’s observations had served as the basis for the allegations, and his testimony was needed to help jurors decide whether Cantu violated disciplinary rules.
The appeals court granted an extension of time to the state to file a motion for a rehearing and en banc reconsideration.
Cantu told Texas Lawyer he did nothing wrong during bankruptcy proceedings and is very pleased with the appellate decision.
