Diaz v. Commission for Lawyer Discipline

Opinion

 [*436]  Pedro Antonio Diaz appeals from a trial-court judgment that suspends for eighteen months his authority to practice law in the State of Texas. ¹  We will affirm the judgment.

 [**2] THE CONTROVERSY

Kenneth Korth, Diaz's former law partner, sued him to recover a $ 15,000 debt when Diaz failed to pay a loan made by Korth; and, because Korth contended the $ 15,000 was used to make a down payment on Diaz's home, Korth sued to establish an equitable lien against the property. In the course of the lawsuit, Diaz filed a motion for summary judgment accompanied by his affidavit that none of the $ 15,000 was applied to payment of the purchase price of his home; consequently, Diaz contended in his motion Korth was not, as a matter of law, entitled to an equitable lien on the home. Believing Diaz's affidavit to be false, Korth complained to the State Bar of Texas that Diaz had knowingly made false statements of material fact to a tribunal. Tex. Disciplinary R. Prof. Conduct 3.03(a)(1). ² 

The Grievance Committee convened an investigatory panel to determine whether Korth's complaint was supported by just cause. See Tex. R.  [**3]  Disciplinary P. 2.01, 2.04, 2.11. The panel found just cause and notified Diaz accordingly. The Grievance Committee appointed an evidentiary panel to consider a single violation arising from the complaint: whether Diaz's affidavit in support of his motion for summary judgment contained a false statement of material fact in violation of Rule 3.03(a)(1). See Tex. Disciplinary  [*437]  R. Prof. Conduct 3.03(a)(1). Diaz and the Chief Disciplinary Counsel disagreed regarding the terms of the order that would control the evidentiary hearing, whereupon Diaz requested and was permitted to remove the case to district court "for a trial de novo." Tex. R. Disciplinary P. 2.16(c). Trials de novo of this character are governed by Part III of the Texas Rules of Disciplinary Procedure. Id.

In district court, the Commission for Lawyer Discipline filed a petition alleging the violation initiated by Korth's complaint: Diaz's alleged violation of Rule 3.03 (] making a false statement of material fact or law to a tribunal). See Tex. Disciplinary R. Prof. Conduct 3.03. In addition, the petition averred two other violations, namely a commingling of lawyer and client funds in violation of former [**4]  Disciplinary Rule 9-102(A) and engaging in conduct involving dishonesty, fraud, deceit or misrepresentation in violation of Rule 8.04(a)(3). See id. 8.04(a)(3). Each of the three alleged violations was submitted to the jury; they found Diaz had committed all three. Diaz appeals from a district-court judgment incorporating the verdict.

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