Comm'n for Lawyer Discipline v. Cantu, 18-0879

CourtSupreme Court of Texas
Writing for the CourtPER CURIAM.
Citation587 S.W.3d 779
Parties COMMISSION FOR LAWYER DISCIPLINE, Petitioner, v. Mark A. CANTU, Respondent
Docket NumberNo. 18-0879,18-0879
Decision Date25 October 2019

587 S.W.3d 779

Mark A. CANTU, Respondent

No. 18-0879

Supreme Court of Texas.

OPINION DELIVERED: October 25, 2019

Royce A. LeMoine, Matthew J. Greer, Laura Bayouth Popps, Seana Beckerman Willing, James A. Ehler, Linda Acevedo, for Petitioner.

Shiree Danette Salinas, Audrey Mullert Vicknair, David M. Gunn, Nicholas M. Bruno, for Respondent.


In this attorney discipline case, the trial court rendered judgment disbarring Mark Cantu. The court of appeals reversed due to the admission of testimony by the federal bankruptcy judge who oversaw Cantu's personal bankruptcy proceedings. Because we agree with the Commission for Lawyer Discipline (the CLD) that allowing the judge's testimony was not error, we reverse the court of appeals' judgment and remand the case to that court.

This disciplinary action arose from Cantu's conduct in his personal bankruptcy proceeding, in which Judge Marvin Isgur denied a bankruptcy discharge because of misconduct by Cantu during the bankruptcy proceeding. Judge Isgur prepared a 72-page Memorandum Opinion (the Opinion) explaining his decision. He also concluded that his ethical obligations required him to notify the State Bar of Texas of Cantu's

587 S.W.3d 781

conduct. Based on the conduct described in the Opinion, the CLD brought a disciplinary action against Cantu. The CLD alleged violations of several of the Disciplinary Rules of Professional Conduct: Rule 3.02 (prohibiting lawyers from "taking a position that unreasonably increases the costs or other burdens of the case or that unreasonably delays resolution of the matter"), Rule 3.03(a)(1) (prohibiting lawyers from "knowingly making false statements of material fact or law to a tribunal"), Rule 3.03(a)(5) (prohibiting lawyers from knowingly offering false evidence), Rule 3.04(d) (prohibiting lawyers from knowingly disobeying a standing rule or ruling by the tribunal), and Rule 8.04(a)(3) (prohibiting lawyers from "engaging in conduct involving dishonesty, fraud, deceit, or misrepresentation"). TEX. DISCIPLINARY RULES OF PROF'L CONDUCT R. 3.02, 3.03(a)(1), (5), 3.04(d), 8.04(a)(3), reprinted in TEX. GOV'T CODE. ANN. tit. 2, subtit. G, app. A (Tex. State Bar R. X § 9).

The disciplinary case was tried to a jury. The CLD called Cantu, the bankruptcy trustee, and Judge Isgur to testify. The bankruptcy trustee testified at great length about Cantu's conduct. The CLD initially designated Isgur as an expert witness but opted before trial to call him as a fact witness. Cantu objected to Judge Isgur's testimony before and during trial. After lengthy discussions with counsel, the trial court endeavored to limit Judge Isgur's testimony to the rulings he made in bankruptcy court as reflected in his Opinion. The trial court also permitted the CLD to admit a heavily redacted copy of the Opinion itself. Over 81 objections, the Opinion was redacted to include those portions that had been explored by the witnesses.

Judge Isgur's testimony was relatively brief but certainly damaging to Cantu. He described his personal background and the role of a federal bankruptcy judge. He testified that he denied Cantu's discharge. He recited certain findings from his Opinion. He testified that Cantu: "displayed a pattern of omission, obfuscation and noncompliance"; "had given false oaths in the bankruptcy court"; "improperly concealed and transferred assets"; "refused to comply with lawful Court orders"; "failed to keep adequate records" as required by the Bankruptcy Code; and "withheld information from the trustee." Judge Isgur further testified that Cantu violated various court orders and that he had ordered Cantu to pay sanctions for violations of the automatic bankruptcy stay. He explained that this conduct was the basis for his decision to deny Cantu's discharge and that he had forwarded a copy of his Opinion to the State Bar of Texas and the chief judge of his federal district court.

Cantu offered several expert witnesses who opined that his conduct did not violate the disciplinary rules. The jury found that Cantu violated all the disciplinary rules alleged by the CLD, except for Rule 3.04(d). The trial court found that disbarment was the proper sanction for each of the four rule violations and rendered judgment disbarring Cantu. Cantu appealed on several grounds. The court of appeals reversed and remanded for a new trial. The court of appeals concluded, over a dissent, that admission of Judge Isgur's testimony was reversible error. Cantu v. Comm'n for Lawyer Discipline , ––– S.W.3d ––––, 2018 WL 2440501 (Tex. App.—Corpus Christi 2018, pet. granted) (mem. op.). In reaching this conclusion, the court of appeals relied heavily on Joachim v. Chambers , 815 S.W.2d 234 (Tex. 1991), in which this Court disapproved of the admission of expert testimony by a judge. Cantu , ––– S.W.3d at ––––.

In this Court, the CLD contends that Joachim does not require exclusion of Judge Isgur's testimony. At the outset, the

587 S.W.3d 782

CLD argues that Cantu did not specifically invoke Joachim in the trial court and so failed to preserve the argument. But Cantu "was not required ... at trial to rely on precisely the same case law ... [the court of appeals found] persuasive." Adams v. Starside Custom Builders, LLC , 547 S.W.3d 890, 896 (Tex. 2018). Among his laundry list of objections to Judge Isgur's testimony, Cantu complained that it was improper expert testimony by a judge, that "the jury is supposed to hear what happened," and, most importantly, that it is "not for the judge to tell them how to vote." This line of argument is very similar to the concerns about judicial testimony animating Joachim . See 815 S.W.2d at 237. Cantu's trial-court arguments expressed the basic rationale for the objection without citing the case law. This does not prevent him from relying on the case law on appeal. "We do not consider issues that were not raised in the courts below, but parties are free to construct new arguments in support of issues properly before the Court." Greene v. Farmers Ins. Exchange , 446 S.W.3d 761, 764 n.4 (Tex. 2014).

Turning to the merits, we agree with the CLD that Joachim does not require exclusion of Judge Isgur's testimony. Joachim was a lawyer-malpractice case. The defense argued that the plaintiffs' damages were caused not by the lawyer's mistakes but by the actions of Judge Godard, the presiding judge in the underlying matter. The defense called as an expert witness another judge, Judge Blanton, who was not involved in the underlying proceeding. Judge Blanton testified about Judge Godard's handling of docket sheet entries. The plaintiffs sought mandamus relief to prohibit the court in the malpractice case from allowing Judge Blanton's testimony at trial. Joachim , 815 S.W.2d at 235–37.

This Court held that, in the circumstances presented, permitting Judge Blanton's expert testimony was an abuse of discretion. The Court reasoned as follows. Generally, a judge is competent to testify in any trial except one over which he is presiding. Id. at 237. However, the testimony of a judge as an expert witness implicates Canon 2 of the Texas Code of Judicial Conduct, which at the time stated, "A Judge Should Avoid Impropriety and the Appearance of Impropriety in All Activities."1 Id. The Canon went on to specify that a judge should promote "the integrity and impartiality of the judiciary" and "should not lend the prestige of his or her office to advance the private interests of himself or herself or others."2 Id. The Court held that Canon 2 prohibited Judge Blanton's testimony as an expert witness. The Court stated, "The appearance of a judge as a witness threatens, rather than promotes, public confidence in the integrity and impartiality of the judiciary." Id. at 238 (internal quotation marks omitted). It further reasoned:

Although Canon 2 specifically restricts judges only from testifying as character witnesses, the underlying principles may apply to other judicial testimony, especially expert testimony. A judge who testifies as an expert witness for a private litigant provides more than evidence; the judge also confers the prestige
587 S.W.3d 783
and credibility of judicial office to that litigant's position, just as a judge who testifies to the litigant's character. Expert witnesses, unlike judges, rarely appear impartial; a party does not ordinarily call an expert whose testimony is unfavorable. An expert witness is offered to support a party's position, and if the expert is a judge, the jury may mistake that support for an official endorsement. An expert witness is usually subject to more rigorous interrogation than a character witness. Thus, the opportunity for strained relations between a judicial witness and a cross-examining attorney bent on discharging his duty to zealously represent his client is perhaps greater when the judge is testifying as an expert than as a character witness. The danger that the judge will not be able to set aside the memory of the interrogation when the attorney appears before the judge in other cases is at least as real. Even when there is no actual impropriety, the appearance of impropriety looms.

The risk of such appearance of impropriety extends beyond the particular case in which the judge testifies. Not only are jurors likely to be influenced in their decision by

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