Brian Philip Manookian v. Board of Professional Responsibility of the Supreme Court of TennesseeBrian Philip Manookian v. Board of Professional Responsibility of the Supreme Court of Tennessee
No. 20-0833-I William B. Acree, Senior Judge
In this lawyer disciplinary case, the lawyer‘s conduct compels disbarment. The lawyer sent a series of intimidating, demeaning, embarrassing, and harassing communications to opposing counsel and others. Some targeted family members of opposing counsel, including one family member who was also a former client, and caused well-founded concern for their well-being and safety. In the ensuing disciplinary proceedings, a Board of Professional Responsibility hearing panel found that the purpose of the communications was to intimidate opposing counsel in order to gain unfair advantage in pending litigation. It concluded inter alia that the lawyer‘s conduct was prejudicial to the administration of justice, that he failed to respect the rights of third persons, and that he violated his duty to a former client, in violation of Tennessee‘s Rules of Professional Conduct. The hearing panel said the presumptive sanction was disbarment, found four aggravating factors, and found no mitigating circumstances. Without explanation, the hearing panel recommended a two-year suspension instead of disbarment. The attorney appealed to the trial court. The trial court indicated that, had the Board of Professional Responsibility filed a separate petition for review, the trial court would have recommended disbarment, but because the Board did not, the trial court affirmed the sanction of suspension. Both parties appeal. Here, the lawyer‘s conduct was egregious. Victimizing the families of opposing counsel and causing concern for their well-being and safety is an especially grave offense and a profound dishonor as a lawyer. The hearing panel‘s decision to deviate downward from the presumptive sanction of disbarment was arbitrary and capricious, and the lawyer must be disbarred. Accordingly, we modify the judgment of the hearing panel and impose the sanction of disbarment.
HOLLY KIRBY, C.J., delivered the opinion of the court, in which JEFFREY S. BIVINS, ROGER A. PAGE, and SARAH K. CAMPBELL, JJ., joined. SHARON G. LEE, J., filed a dissenting opinion.
James W. Milam, Nashville, Tennessee, for the appellant, Board of Professional Responsibility of the Supreme Court of Tennessee.
Brian Manookian, Nashville, Tennessee, Pro Se.
OPINION
The attorney in this case, Appellee Brian Philip Manookian, and the Tennessee Board of Professional Responsibility (“Board” or “BPR“), both appeal discipline imposed by the BPR hearing panel for communications by Mr. Manookian to opposing counsel in Mr. Manookian‘s representation of a client in pending civil litigation. The summary of facts and circumstances
FACTUAL AND PROCEDURAL BACKGROUND
Mr. Manookian was licensed as a lawyer in Tennessee in 2007. That same year, he was hired as an associate in the law firm of attorney C.J. Gideon.1 The firm principally represented health care providers in malpractice litigation. During Mr. Manookian‘s employment, he spent time with Mr. Gideon‘s family. They developed somewhat of a friendship.
The relationship deteriorated in 2011 when Mr. Gideon received reports of Mr. Manookian‘s poor work performance. Mr. Gideon eventually told Mr. Manookian he would be fired if his performance did not improve. Soon after, Mr. Gideon asked Mr. Manookian about whether discovery requests had been issued in a case, and Mr. Manookian provided a false response. Mr. Gideon then terminated Mr. Manookian‘s employment.
After that, Mr. Manookian and Mr. Gideon had little contact with one another. Mr. Manookian later began practicing with Brian Cummings at Cummings Manookian PLC.
Shao Case
Pertinent to this matter, in 2017, Mr. Manookian, along with co-counsel Mr. Cummings, represented plaintiff Steven Shao in a healthcare liability action against HCA Health Services of Tennessee, Inc., d/b/a Summit Medical Center; Toby Smith, M.D.; and Middle Tennessee Pulmonary Associates, PLLC (“Shao case“). Attorneys from a Nashville firm represented HCA Health Services of Tennessee, Inc. (“HCA“), and attorney Michael Geracioti of Levine, Orr & Geracioti, PLLC represented Toby Smith, M.D. and Middle Tennessee Pulmonary Associates, PLLC respectively. The Shao lawsuit was filed in the Davidson County Circuit Court and assigned to Judge Thomas Brothers. The parties engaged in pretrial discussions and agreed on deadlines for discovery and for a case management conference. Discovery requests were exchanged.
Unexpectedly, in March 2017, Mr. Geracioti died one morning at his home. That day, Mr. Geracioti‘s office told Mr. Manookian and Mr. Cummings of Mr. Geracioti‘s death.
The day Mr. Geracioti died, after receiving notice of his death, Mr. Manookian and Mr. Cummings filed a motion for default judgment against Mr. Geracioti‘s clients. Four days later, Mr. Manookian sent a letter to Mr. Geracioti‘s associate, threatening to assert an $8,000,000 claim against her clients, her law firm, and Mr. Geracioti‘s estate.2
Soon after, attorneys Phillip North3 and Eric Miles were substituted in as counsel for Mr. Geracioti‘s clients in Shao. They filed a response asking Judge Brothers to deny the motion for default judgment.
On April 24, 2017, after a hearing, Judge Brothers denied the motion. In doing so, sua sponte, Judge Brothers reprimanded Mr. Manookian and Mr. Cummings for their conduct in the immediate aftermath of Mr. Geracioti‘s death:
This Court is profoundly disappointed in the conduct of plaintiff‘s counsel and
the timing and manner in which the Motion for Default was presented. Being a zealous advocate does not mean that one abandons all sense of professionalism, courtesy and common decency. It is clear that counsel for plaintiff was attempting to gain a tactical advantage by aggressively pursuing the claim for default on the very day of Mr. Geracioti‘s death; despite the fact that all parties had been actively engaged in pretrial proceedings and plaintiff‘s counsel never complained after striking the original motion [for default judgment]. . . . It is with regret that this Court must reprimand all of plaintiff‘s counsel for conduct that is unbecoming members of the Bar and officers of the court. Hopefully counsel will apply this constructively and thereby avoid such reprehensible behavior in the future.
Gideon Conduct
In mid-July 2017, the lawyers representing HCA in Shao withdrew. In their stead, Mr. Manookian‘s former employer C. J. Gideon was substituted as counsel, along with another lawyer in Mr. Gideon‘s law firm. Mr. Gideon began evaluating the plaintiff‘s outstanding discovery responses. On August 17, 2017, Mr. Gideon sent a letter to Mr. Manookian and the other lawyers in the Shao case detailing “continuing deficiencies in the plaintiff‘s response” to discovery requests propounded on Mr. Manookian‘s client and asking plaintiff‘s counsel to supplement them.
Two days later, on Saturday August 19 at 9:29 p.m., Mr. Manookian sent an email from his law firm email address to Mr. Gideon at his law firm email address:
Clarence –
I hear [name of Mr. Gideon‘s daughter] is working at [name of daughter‘s employer]. What a fantastic opportunity; particularly given her history of academic failure and alcohol and substance abuse.
I happen to have some very close friends at [name of daughter‘s employer].
I will make it a point to see what I can do regarding her prospects there.
I am reminded that it is good for us to keep apprised of each other‘s lives and the things we can do to influence them.
At the end, the email included a preprinted signature block for Mr. Manookian and his law firm.
Mr. Manookian‘s email, Mr. Gideon later explained, brought him back to the worst time in his and his wife‘s life. On her eighteenth birthday during her high school senior year, Mr. Gideon‘s daughter drank some wine before going to school and was suspended for it. This incident occurred while Mr. Manookian was employed by Mr. Gideon‘s firm. It resulted in Mr. Gideon‘s daughter leaving high school to attend a six-week camp in the mountains. Mr. Gideon later said he had not spoken to Mr. Manookian about this.
Mr. Gideon characterized the description in Mr. Manookian‘s email of Mr. Gideon‘s daughter having a history of academic failure as “[a]bsolutely a lie.” He did not dispute the incident with alcohol but said his daughter had a 4.0 GPA when she left that high school and enrolled in another school, and that she ultimately graduated from college.
Mr. Gideon said Mr. Manookian‘s email made him sick to his stomach and angry that “anybody would be so low to attack an opponent through their kids.” He said it provoked “unbelievable anxiety over what [Mr. Manookian] was going to do to my daughter” and a helpless feeling that “I wouldn‘t be able to do anything about it.” Mr. Gideon saw the intent of the email as a “brushback pitch to get me to back off” in the Shao litigation, to send the message:
The following Monday, Mr. Gideon filed a complaint with the BPR against Mr. Manookian for the August 19 email about his daughter. The same week, Mr. Gideon filed a motion in Shao for sanctions against Mr. Manookian. He attached the offending email to his motion, but to protect his daughter‘s privacy, he redacted identifying information about her and about her employer.
Mr. Manookian‘s response filed with the trial court claimed innocuous intentions. He said the company that employed Mr. Gideon‘s daughter was one of Mr. Manookian‘s clients and included some of his close friends. He explained that he spoke with the daughter‘s employer and then “emailed Clarence Gideon on August 19, 2017 regarding [the daughter‘s] position at [employer] stating, ‘I will make it a point to see what I can do regarding her prospects there.‘”
Inconsonant with Mr. Manookian‘s claimed good intentions, however, his response to the motion for sanctions included the identifying information Mr. Gideon had redacted, such as the name of Mr. Gideon‘s daughter and the name of her employer, and it attached an unredacted copy of the offending email. And for good measure, an exhibit to Mr. Manookian‘s filed response also included the same email, unredacted, for a second time.4
Going still further, Mr. Manookian inserted into his filed response a footnote [“Footnote 1“] that contained information about Mr. Gideon‘s son, whom Mr. Manookian had represented on a sensitive sexual matter while he was employed by Mr. Gideon‘s firm:
Mr. Manookian‘s prior experience with Mr. Gideon‘s adult children is limited to having successfully represented his adult son in a matter involving Mr. Gideon‘s adult son exchanging sexually graphic emails with a much older man for the sexual gratification of the older man.
The footnote included detail such as the heading of the case naming Mr. Gideon‘s son, the court in which it was filed, the docket number, and the pleading with specific page references where the referenced sexual information could be found. Mr. Manookian‘s filed response did not explain how the information in Footnote 1 related to the subject matter of Mr. Gideon‘s motion for sanctions.
Mr. Gideon later explained that, in 2008 or 2009, while Mr. Gideon‘s son was in college, the son was contacted over the internet by someone who claimed to be a woman and sent the son photographs of a beautiful woman represented to be the sender. Mr. Gideon‘s son thought it was odd and “too good to be true” and showed his father the photographs. Mr. Gideon said he did not know the term “catfishing” at the time,5 but he sensed something
After investigating, Mr. Manookian determined the sender was a man, not the beautiful woman depicted in the photos. Mr. Manookian located the man, sued him on behalf on Mr. Gideon‘s son, and the matter was concluded by the defendant paying a financial settlement. Though the lawsuit was not sealed, Mr. Gideon said it never made any headlines, few people knew about it, and it “certainly wasn‘t in the public domain.” He said neither he nor his son heard another word about the matter until Mr. Manookian inserted it into the Shao litigation.
Mr. Gideon pointed out that his son had nothing to do with the Shao case, his daughter‘s employment, or the subject matter of the motion for sanctions against Mr. Manookian. Mr. Gideon said Mr. Manookian‘s description of the son‘s lawsuit was “written to make it look like my son was knowingly communicating with a guy for their joint mutual sexual satisfaction. That‘s not right. That‘s not accurate.” He viewed Mr. Manookian‘s act of inserting the son‘s lawsuit into his response as done “to take a shot at me and to embarrass a former client and in that sense get back at me yet again.”
Judge Brothers held a hearing on September 21, 2017 on Mr. Gideon‘s motion for sanctions. At the hearing, Mr. Manookian explained that his email to Mr. Gideon about Mr. Gideon‘s daughter was intended to convey only that Mr. Manookian intended to help Mr. Gideon‘s daughter. Mr. Manookian claimed that he had not yet received Mr. Gideon‘s letter on the deficiencies in the Shao plaintiff‘s discovery responses, sent on August 17, when he sent the August 19 email to Mr. Gideon.6
Judge Brothers declined to credit Mr. Manookian‘s explanation. Instead, Judge Brothers viewed the email as a “thinly veiled threat.” He likened Mr. Manookian‘s email to a scene “in a gangster movie” where a “mobster” says “just want to let you know, I know where you live, I know where your children go to school . . . and I know what kind of car you drive” and adds “y‘all have a great day” before he walks away.7
On September 28, 2017, Judge Brothers entered an order granting Mr. Gideon‘s motion for sanctions. Judge Brothers found that, although Mr. Manookian‘s email to Mr. Gideon did not specifically reference the Shao case, Mr. Manookian knew when he sent it that “Mr. Gideon was opposing counsel in this case” and “it was a communication between opposing counsel in a case pending before this Court.” The order rejected Mr. Manookian‘s claim of laudable intent and characterized his email as a “threat” against Mr. Gideon‘s daughter made to gain tactical
The order noted that the trial court‘s previous order, admonishing Mr. Manookian for filing a motion for default the day Mr. Geracioti died and then threatening to sue the Geracioti estate, was not sufficiently specific to hold that Mr. Manookian‘s conduct toward Mr. Gideon was contempt of court. To remedy this, the order included an express prohibition:
The Court hereby expressly forbids Mr. Manookian from making any communication to counsel in this case that threatens, insults, disparages, demeans, or embarrasses them and/or their family members. . . .
Any violation of this Court‘s orders by Mr. Manookian shall be heavily scrutinized and all possible sanctions, both civil and criminal, will be considered.
Describing Mr. Manookian‘s conduct as “repellent and shameful,” the order said that the trial court was obligated to report it to the BPR. In addition, the order found that Mr. Manookian‘s conduct toward Mr. Gideon, and especially as to Mr. Gideon‘s children, was “unconscionable” and justified an award of sanctions.9 Judge Brothers awarded Mr. Gideon $5,550 in attorney fees against Mr. Manookian.
North Conduct
Meanwhile, Mr. North, successor counsel for the Geracioti clients in Shao, watched Mr. Manookian‘s 2017 conduct toward Mr. Gideon with apprehension. He recognized that the August 19, 2017 email to Mr. Gideon showed Mr. Manookian‘s willingness “to go after somebody‘s family.” If Mr. Manookian was “willing to publicly humiliate Mr. Gideon‘s daughter in order to try to gain a tactical advantage in
By the spring of 2018, Mr. North‘s firm had taken over a number of Mr. Geracioti‘s cases, including Shao in Judge Brothers‘s court and three others, with Mr. Manookian‘s firm. Mr. North was directly supervising the cases with Mr. Manookian‘s firm. He felt trial preparation was going well; all four were “headed for a disaster for Mr. Manookian,” and Mr. North expected defense verdicts in them all. Mr. North felt that Shao in particular “was falling apart” for Mr. Manookian. Shao was set for trial in November 2018; if Mr. Manookian succeeded in getting Judge Brothers off Shao, this would delay the trial date by at least a year. For this reason, Mr. North made it clear that he was “resistant” to Mr. Manookian‘s efforts in Shao to replace Judge Brothers with another trial judge.
At a case management conference in Shao, in support of his effort to disqualify Judge Brothers or get him to recuse himself, Mr. Manookian said he intended to show that Judge Brothers showed bias against Mr. Manookian by presenting testimony from Judge Hamilton Gayden to that effect. At the conference, to ascertain what Judge Gayden‘s testimony would be, Mr. North asked if anyone objected to his calling Judge Gayden to ask him what he would say about Judge Brothers.
Following the case management conference, after business hours on Friday March 30, 2018, Good Friday before the Easter weekend, Mr. Manookian sent an e-mail to Mr. North:
Counsel,
I am emailing to provide written notice that Plaintiff intends to pursue sworn testimony regarding ex parte statements made by [Judge] Thomas White Brothers about this case, during the pendency of this case––including evidence of Thomas White Brothers’ existing and articulated biases affecting this case––via affidavit from the Honorable Hamilton Gayden, Jr.
In addition, [i]n response to Phillip North‘s specific inquiries regarding Judge Gayden, which Mr. North voiced at the most recent Case Management Conference in this matter; Plaintiff does not oppose:
1. Judge Gayden disclosing his actual experience, and resulting opinion, of Phillip North‘s reputation for truthfulness, honesty, and fidelity; and/or,
2. Judge Gayden disclosing his actual experience, and resulting opinion, on Phillip North‘s propensity for dishonesty, exaggeration, and falsehood.
I hope you all have a wonderful and relaxing Easter weekend.
Mr. Manookian‘s email copied all other counsel in Shao and others not involved in the case.10
Mr. North said he was “floored by” Mr. Manookian‘s email because it conveyed the impression that Judge Gayden had “actual experience and a resulting opinion” that Mr. North had a “propensity for dishonesty, exaggeration, and falsehood.” Mr. North said the insinuation was false; he and Judge Gayden had been colleagues their whole career; Judge Gayden supported Mr. North‘s unsuccessful run for public office and even attended Mr. North‘s wedding. Mr. North emphasized that, over the course of his forty-five-year legal career, he had diligently maintained
Mr. North felt Mr. Manookian‘s email “had no useful purpose” as Mr. North‘s “integrity was not at issue” in Shao. He said his firm had been going “full steam ahead” on the four cases against Mr. Manookian‘s firm and described Mr. Manookian‘s email as “a gratuitous attempt to embarrass me and distract me from my mission, which was, I was going to get these four cases tried.” Mr. North believed the email violated Judge Brothers‘s past order expressly forbidding Mr. Manookian from “making any communication to counsel in this case that threatens, insults, disparages, demeans, or embarrasses them.”
Mr. North filed a motion asking the trial court to place Mr. Manookian‘s March 30 email under seal because he intended to move for sanctions for violating the prior order and did not want to republish the email. The motion to seal was rendered moot, however, when Mr. Manookian filed a separate lawsuit for declaratory judgment against Mr. North and put the offensive email in the body of the publicly-filed complaint for declaratory judgment.12 With his motion to seal mooted, Mr. North withdrew it.
This turn of events prompted another disparaging email from Mr. Manookian:
Phillip,
I‘ve had a chance to review your most recent non-substantive motion. I applaud you on finally filing something other than a “me-too, piggy-back” motion on Gideon Cooper‘s effort; if not your actual scholarship. Putting pen to paper is a great first step, Phillip! If you keep at it, you never know what you might achieve!
With that said, are you really arguing that you need pleadings unsealed because you claim to not have access to materials (1) that are not only publicly available by definition, but (2) were also previously served on you, and (3) are therefore in your actual possession?
If so, I‘m happy to provide you with the documents you claim to need. Just let me know and I‘ll send them over. If [sic] think otherwise you risk the in-person embarrassment we all tried to downplay last Friday in court when you withdrew your last non-substantive motion on this topic while staring at your feet.
This email, sent on June 7, 2018, went to Mr. North‘s paralegal, Kim Woods, with copies to ten other attorneys and law office staff. It was sent from Mr. Manookian‘s law firm email address with Shao in the subject line.
In response to Mr. Manookian‘s March 30, 2018 and June 7, 2018 e-mails, Mr. North moved for a third round of sanctions against Mr. Manookian. The motion recited Mr. Manookian‘s pattern of misconduct and asked the trial court to consider not only monetary sanctions but to also disqualify Mr. Manookian from Shao or even suspend or revoke his privilege to practice in the Davidson County Circuit Courts. In support, the motion noted Mr. Manookian‘s past practice of filing motions for recusal, often based on accusations of bias or
Mr. North filed his motion for a third round of sanctions on June 15, 2018, with a certificate of service indicating it was served on Mr. Manookian and other counsel on the same date.14 The motion resulted in another disparaging email from Mr. Manookian to Mr. North, sent on June 22, 2018, accusing Mr. North of placing a false certification of service
of the motion for sanctions. Mr. North maintained that the accusation in the June 22 email was false.15
On July 20, 2018, Mr. North moved for a fourth round of sanctions, this one based on Mr. Manookian‘s June 22 email. Mr. North viewed that email as also intended to get him to “back off” on pressuring Mr. Manookian on the cases in which they were opposing counsel.
Despite these disputes, discovery in Shao continued apace. Mr. Gideon and Mr. North deposed Mr. Manookian‘s academic expert in Shao, named Zgoda. Mr. North later described the deposition as “an absolute disaster for the Shao plaintiff.” Mr. North said the “expert admitted he hadn‘t been given the right information about the patient so that the whole premise of the lawsuit was erroneous” and the expert added, “I‘m surprised this is even being pursued.”
Shortly after this deposition, Mr. Manookian sent out another controversial Friday evening email. On Friday, August 3, 2018, at 8:03 p.m., Mr. Manookian sent an email with a letter to “Counsel” in Shao with the subject line: “Shao v. Smith, et al. (North Non-Substantive Motions).” The letter said that Mr. Manookian was “disclosing” two things “in response to” Mr. North‘s recent filings. First, the letter
The letter included a long footnote purporting to be a summary of Mr. Manookian‘s subsequent telephone conversation with retired Judge North:
Preliminary to lengthier phone call conducted at the gratuitous request of Retired Davidson County Circuit Court Judge Steve North, wherein Ret. Judge North states and opines upon personal knowledge, having served on the bench with Judge Tom Brothers and being the brother of Phillip North, that: Judge Tom Brothers is “corrupt” and has been for some time, that Judge
Tom Brothers’ “corruption” arises out of his financial needs; that Judge Tom Brothers’ “corruption” has long resulted, and continues to result, in preferable, “corrupt” treatment for certain Nashville-based companies, which benefit from consistent, “corrupt” favorable rulings in Judge Brothers’ courtroom, to the exclusion of justice; that such “corruption” has, and continues to, materially benefit, among others, C.J. Gideon and his firm, in his representation of certain “corrupt” clients[,] as well as lengthy disclosure and dissertation on Phillip North, all of which is material to the supposed grievances in Phillip North‘s “Motion for Third Round of Sanctions.”
The emailed letter was sent not only to Mr. North, but also to eighteen other individuals, including several attorneys at Mr. North‘s firm, three attorneys and a paralegal at Mr. Gideon‘s firm, other attorneys at Mr. Manookian‘s firm, and two other Nashville attorneys. Some of these individuals were not involved in Shao.
About twenty minutes after Mr. Manookian emailed this Friday evening letter, he emailed Mr. North individually, but copied to all the same recipients as the email sent minutes earlier, with the same subject line referencing Shao:
Phillip,
I had previously never had the pleasure of encountering your brother, the Honorable Davidson Circuit Court Judge Steve North (Ret.), prior to his voluntarily reaching out to me about the irregularities in this case. Can you please listen to his voicemail (previously provided to you) and verify, as his brother, his voice.
The email had an attachment, but Mr. North did not open it. Mr. North viewed the email as an attempt to create friction between his brother and him, so he did not respond to it.
Apparently unsatisfied at having received no response to these two emails, Mr. Manookian sent Mr. North a more personal message. The next day, Saturday August 4, 2018, he sent another email to Mr. North individually, also referencing Shao in the subject line:
Phillip,
I see that my email and attachments are being repeatedly opened at the IP address associated with the consumer Comcast cable account for [Mr. North‘s home address].
That address is the residential property where you have consistently lived with your parents (other than for a brief period of time from 1984–1986 where you rented unit 602 at the Capitol Towers on Gay Street) until the North Family Trust essentially gifted you the property for $10.00. Upon investigation, this gifted piece of property in North Nashville, given to you for $10 by your parents, represents the sole piece of real property you own at 68 years of age. Further confirming that you have read my email, records additionally reflect that [name of Mr. North‘s wife] –– the woman for whom you left your wife and two minor daughters ([names of Mr. North‘s daughters]) –– has registered a [wife‘s vehicle description] (VIN: [number for wife‘s vehicle], TN License Plate [number for wife‘s vehicle]) at the same address your parents gave you and where my email is being viewed.
Please simply reply and confirm your brother Steve North‘s voice.
This Saturday missive was emailed to the same list of attorneys and others as the previous Friday evening emails.
Unsurprisingly, Mr. North was upset by it. He viewed it as intended to insult him, embarrass him and his family, cast him in a false light, and pit him against his brother. But most of all, Mr. North viewed it as a threat. He likened it to Judge Brothers‘s “gangster” admonition at the hearing on Mr. Gideon‘s motion for sanctions against Mr. Manookian: “I know where you live. I can reach you. I can get you. I can touch you. I can hurt your family.”
Mr. North said the Saturday, August 4 email was particularly disruptive to his life and law practice. It caused him concern for his personal security, the safety of his wife in their home, and the security of his office.16 Most of all, Mr. North said, Mr. Manookian‘s message caused him to “constantly be looking over [his] shoulder.” He worried about unusual sounds and thought, “What is this guy trying to do? . . . [I]s he some kind of psycho? . . . [I]s he going to come in here and firebomb the house? Break in my office and shoot it up? You just don‘t know.”
On August 10, 2018, Mr. North filed a motion for a fifth round of sanctions against Mr. Manookian for the August 3 and 4 emails.17 It asked the trial court to hold Mr. Manookian in contempt for violating Judge Brothers‘s order and either disqualify Mr. Manookian from Shao or suspend him from practicing in the Davidson County Circuit Courts.
Shao Sanctions Hearings
On September 19, 2018, Judge Don Ash held a hearing on Mr. North‘s motions for the third and fourth round of sanctions against Mr. Manookian. These motions concerned the March 30, June 7, and June 22, 2018 series of emails.
The next day, Judge Ash entered an order granting the motions for sanctions,
Judge Ash found that Mr. Manookian repeatedly ignored the clear directives of the court and conducted himself in a reckless manner.19 Judge Ash ordered Mr. Manookian to
pay Mr. North $37,164 in attorney fees, in addition to the $5,880 in attorney fees Judge Brothers awarded to Mr. Gideon. Judge Ash also suspended Mr. Manookian from practicing law in the Davidson County Circuit Courts for sixty days.20
On September 28, 2018, the trial court in Shao entered an agreed order of voluntary dismissal with prejudice of the plaintiff‘s claims against two of the defendants. Shao ex rel. Shao v. HCA Health Servs. of Tenn., Inc., No. M2018-02040-COA-R3-CV, 2019 WL 4418363, at *3 (Tenn. Ct. App. Sept. 16, 2019).
On October 15, 2018, Judge Ash held a hearing on Mr. North‘s motion for a fifth round of sanctions against Mr. Manookian, regarding the August 3 and 4 series of emails to Mr. North. Neither Mr. Manookian nor Mr. Cummings appeared.
On October 22, 2018, the trial court granted the motion for sanctions. The order found that, “[a]s evidenced by the August 3 and 4 emails, Mr. Manookian continues to conduct himself in a reckless manner in utter disregard of the Court‘s directives.” The trial court awarded Mr. North $11,874 in attorney fees and awarded Mr. Gideon and his firm $1,175 in attorney
On November 1, 2018, the trial court entered another agreed order of voluntary dismissal with prejudice in Shao, this one as to the plaintiff‘s claims against a third defendant. Shao, 2019 WL 4418363, at *3. The plaintiff in Shao did not appeal, but Mr. Manookian filed his own appeal of the orders imposing sanctions on him. Id.
Shao Appeal of Sanctions
Mr. Manookian appealed all three of the Shao sanction orders issued by Judges Brothers and Ash. Id. at *1. On the substance of the sanctions, the intermediate appellate court found that the Shao record “clearly supports a finding that Mr. Manookian conducted himself in a reckless manner throughout the course of the underlying litigation” and that the trial court did not abuse its discretion in exercising its inherent power to sanction him. Id. at *6.
Mr. Manookian also appealed Judge Brothers‘s September 2017 order, which forbade Mr. Manookian from “making any communication to counsel in this case that threatens, insults, disparages, demeans, or embarrasses them and/or their family members,” as an unconstitutional prior restraint on his right to free speech. Id. He argued that the September 2017 order was “not narrowly tailored,” did not “serve a compelling governmental interest,” and was a “broad prohibition on content-based future speech.” Id.
The Court of Appeals rejected these arguments. It observed that the Tennessee Rules of Professional Conduct and the Davidson County Local Rules of Practice inherently require attorneys to “conduct themselves in an ethical, civil, and professional manner—and implicit in this requirement is the prohibition on conduct that ‘threatens, insults, disparages, demeans, or embarrasses.‘” Id. The appellate court denied Mr. Manookian any relief on his claims. Id.
There was no appeal from the intermediate appellate court‘s decision.
Disciplinary Proceedings
On March 22, 2018, the BPR filed a supplemental petition for discipline against Mr. Manookian.21 The petition was based on Mr. Manookian‘s email about Mr. Gideon‘s daughter, as well as the response to Mr. Gideon‘s motion for sanctions in which Mr. Manookian included an unredacted copy of the email and also inserted Footnote 1 referencing the lawsuit involving Mr. Gideon‘s son.
On September 21, 2018, several months after the first supplemental petition was filed, the Tennessee Supreme Court entered an order temporarily suspending Mr. Manookian from the practice of law in Tennessee.22 Under
Almost immediately, Mr. Manookian filed a petition to dissolve the suspension. See
petition. Mr. Manookian soon filed a second petition for dissolution of the suspension. The hearing panel that heard the second petition found no change and concluded that Mr. Manookian continued to be a danger to the public. On February 27, 2019, this Court entered an order denying that petition as well.
Days later, on May 24, 2019, the BPR filed a second supplemental petition for discipline against Mr. Manookian. This petition was based on Mr. Manookian‘s conduct towards Mr. North in Shao.25
The following month, BPR filed a petition asking the Court to reinstate the temporary suspension of Mr. Manookian‘s law license. The Court referred the petition to the same hearing panel that had heard Mr. Manookian‘s second and third petitions for dissolution and had recommended dissolution. BPR then filed a supplemental petition to reinstate the temporary suspension of Mr. Manookian‘s law license; it was referred to the same hearing panel. The hearing panel held an evidentiary hearing and issued a report recommending that the Court reinstate the temporary suspension.
On October 11, 2019, finding a substantial threat of harm to the public, this Court entered an order reinstating the temporary suspension of Mr. Manookian‘s law license. The order detailed the basis for the Court‘s decision:
In its Report and Recommendation, the Panel outlined testimony at the hearing, including testimony by Mr. Manookian, regarding two incidents. In the first incident, the Panel found that Mr. Manookian improperly
communicated directly with the client of opposing counsel by sending the client an email designed to intimidate the client and undermine the client‘s relationship with the client‘s attorney. In the second incident, the Panel found that Mr. Manookian intentionally sent another opposing counsel an email that contained a photograph of the opposing counsel‘s wife, personal information regarding his wife, and a photograph of opposing counsel‘s home, causing opposing counsel to be fearful for the safety of his family. The Panel rejected Mr. Manookian‘s explanations for these incidents and noted that Mr. Manookian has previously been disciplined for sending threatening and coercive emails regarding the families of opposing counsel. The Panel concluded that Mr. Manookian had violated a condition of the Order granting his Petition for Dissolution of Order of Temporary Suspension.
Based upon the Court‘s review of the Board‘s petition to reinstate temporary suspension, the Board‘s supplemental petition to reinstate temporary suspension, and the supporting affidavit and exhibits for both petitions, as well as the Panel‘s report and recommendation, the Court adopts the Panel‘s finding that Brian Phillip Manookian, Respondent, has violated a condition of the Order Granting Petition for Dissolution of Order of Temporary Suspension.
The Court finds as well that Mr. Manookian poses a threat of substantial harm to the public.26
The Court denied the petitions to dissolve the suspension. In its order, the Court noted “the number of hearings that Mr. Manookian has had regarding temporary suspension of his law license,” outlined them at some length, and found no factual basis showing good cause to dissolve the suspension. It then held: “The most recent hearing demonstrated ample basis for determining that Mr. Manookian poses a threat of substantial harm to the public and for reinstatement of his temporary suspension.”27 Mr. Manookian has remained on suspension since then.
Disciplinary Hearing
The BPR‘s supplemental petitions for discipline asserted that, in the course of Mr. Manookian‘s representation of the plaintiff in Shao, he violated numerous Rules of Professional Conduct, including:
At the three-day hearing, the Board called three witnesses: Mr. Gideon, Mr. North, and Judge Brothers. The substance of the testimony from Mr. North and Mr.
Judge Brothers testified about the “course of conduct” he saw from Mr. Manookian in Shao while he presided over the case. He first noted Mr. Manookian‘s motion for default against Mr. Geracioti‘s client, filed the day Mr. Geracioti died, and Mr. Manookian‘s letter with an $8,000,000 demand against the estate sent only a few days later. Judge Brothers said he found those actions “bizarre” and strongly reprimanded Mr. Manookian for them.
Judge Brothers then explained why he ordered sanctions against Mr. Manookian for his conduct towards Mr. Gideon, in which he sent Mr. Gideon the email regarding Mr. Gideon‘s daughter and her employer, included the unredacted email in his response to Mr. Gideon‘s motion for sanctions, and included Footnote 1 about the lawsuit in which he represented Mr. Gideon‘s son. Judge Brothers viewed the initial email as clearly part of the Shao litigation, an effort to intimidate Mr. Gideon after he sent Mr. Manookian a letter about the Shao plaintiff‘s deficient discovery responses:
[T]his was not one where . . . there [was] a strike by Mr. Gideon and [Mr. Manookian‘s email] was a responsive hitback. This was an initial offensive maneuver on the part of Mr. Manookian to embarrass, annoy, and harass Mr. Gideon in an attempt to gain an unfair strategic advantage over him through essentially intimidation. It‘s letting him know, said, “I know the folks where your daughter works, and you‘d better watch out. And it‘s nice to have friends, because I will tell them what I need to tell them.”
That‘s the way I took it. I think any person, reasonable person looking at it would take it that same way. And I was extraordinarily disappointed that he had not heeded my earlier attempt to correct him.
Judge Brothers rejected Mr. Manookian‘s assertion that the email showed him “acting properly and behaving properly.” Judge Brothers interpreted the email as a threat. He said Mr. Manookian‘s conduct created “the most unusual situation” he had encountered “in 30 years on the bench . . . [and] 42 years as a lawyer.” It was the first time Judge Brothers had ever “used this type of language directing a lawyer to control their tongue and their pen essentially and not threaten or try to embarrass other people.”
Judge Brothers said there was no reason for him to recuse himself in Shao. He observed that the recusal motion was filed just as defendants’ challenges to the testimony of the plaintiff‘s expert, Dr. Zgoda, had gained traction, and he saw the motion as a way for the plaintiff to “buy some more time.”
Judge Brothers denied the motion for disqualification, but in April 2018, he transferred Shao “because it was becoming a circus.” He was no longer presiding over the litigation by the time Mr. Manookian sent Mr. North the August 3, 2018 email asserting his brother, retired Judge Steve North, made comments critical of Judge Brothers.
Judge Brothers said the corruption allegations against him in Mr. Manookian‘s letter, sent to Shao counsel after Judge Brothers was no longer presiding over the case, were false, offensive, defamatory, unfounded, and an attack on his integrity. Both Mr. Gideon and Mr. North confirmed that the allegations about Judge Brothers‘s purported corruption were false.
Testifying on his own behalf, Mr. Manookian asserted that his August 19, 2018 email about Mr. Gideon‘s daughter‘s employment
As background, Mr. Manookian alleged there had been a “multi-year campaign by Mr. Gideon and one other of his partners to denigrate me, my law firm, and my partner.”33 This perception was “inflamed” when Mr. Gideon testified in Texas litigation against Mr. Manookian. He had this in mind, Mr. Manookian said, when he received a call about Mr. Gideon‘s daughter:
And so when I got the call from my friend at [Mr. Gideon‘s daughter‘s employer] asking about [Mr. Gideon‘s] daughter, that‘s what I was thinking about, was that this man for years, who is my elder and somebody who I greatly, greatly respected and worked for and really thought of as a father figure for a lot of years, had spent so much time trying to run me down.
I got the opportunity to do the same thing back to him and I didn‘t do it. I didn‘t want to do it.
Asked by the hearing panel about Footnote 1 in his response to Mr. Gideon‘s motion for sanctions, describing his representation of Mr. Gideon‘s son in the prior litigation on sexual photos, Mr. Manookian claimed: “[M]y point to the Court and to the judge was, I‘ve never attacked his kid. I don‘t attack his kids. The only thing I have ever done for his kids on the record is represent one of them.” However, he conceded:
I mean, I think the honest answer is, I wasn‘t bending over backwards to try to be nice to Mr. Gideon at that point. I think I was angry at what he said about me in his motion for sanctions. And so I described it in the most technical Pharisaical way this is exactly what the complaint says.
The information in Footnote 1, Mr. Manookian said, was taken from the complaint he filed on behalf of Mr. Gideon‘s son, so it was a matter of public record and available on the clerk‘s electronic database, CaseLink.34
While cross-examining Mr. North, Mr. Manookian played a voice mail recording from Judge North asking Mr. Manookian to call him about Judge Brothers. He asked Mr. North to identify the speaker as his brother. However, Mr. Manookian did not call Judge North as a witness to testify at the disciplinary hearing. Although the phones in Mr. Manookian‘s office were set up to record all phone calls as the default setting, he did not produce a recording of his alleged conversation with Judge North about Judge Brothers. Mr. Manookian commented that someone must have deleted the recording or recorded over it. He
Explaining his email about Judge Gayden‘s purported opinions on Mr. North, Mr. Manookian said Judge Gayden was a close friend and had supposedly shared with him unfavorable opinions about Mr. North, with specific examples.
Mr. Manookian characterized his “motion to disclose,” demanding that Judge Brothers disclose statements allegedly showing his bias in Shao, as a “polite and politically good way to prompt Judge Brothers to recuse himself from the case without making any accusations.” When that did not result in Judge Brothers‘s recusal, Mr. Manookian indicated at the Shao status conference that he would secure Judge Gayden‘s testimony verifying Judge Brothers‘s alleged biased remarks. Mr. Manookian claimed that, at the status conference, Mr. North asked if he could “ask Judge Gayden what he thinks about me.” According to Mr. Manookian, this comment prompted him to send his Friday evening “Good Friday” email, in which he insinuated that Judge Gayden had also expressed unfavorable opinions about Mr. North.36
Asked about his email accusing Mr. North of falsifying the date on the certificate of service for his motion for sanctions, Mr. Manookian commented:
And then the language that‘s always left out when they quote this is, “I am politely requesting that you acknowledge your false certification by filing a corrected certificate of service with the Court first thing Monday morning, then select a hearing date that complies with the local rules and works for all counsel. Once you do that, I will agree to have this motion heard specially, including earlier than required by the two-week rule, if you prefer, and if Mr. Gideon and Mr. Carter also agree.”
So, I am telling him, we can hear this motion quickly.
In response to a question from the hearing panel, however, Mr. Manookian acknowledged he did not say “let‘s move this date” but instead said, “admit that you committed a fraud upon the Court.
The hearing panel then asked Mr. Manookian about the August 3, 2018 emails aimed at Mr. North.38 Mr. Manookian said he sent the Friday evening emails because he “was about to file items” in response to an unidentified filing by Mr. North. Mr. North did not respond, but Mr. Manookian “could see from the email tracking that he was opening the email over and over and over and over.” Mr. Manookian said this prompted him to send the email the next day, August 4, to Mr. North and all Shao counsel, detailing personal information about Mr. North and his wife.
The hearing panel asked about how Mr. Manookian obtained the very personal information recounted in his email. Mr. Manookian explained he used several expensive applications first created for email marketers, paid for by his firm. They imbedded into the email a tracking mechanism that provided a report with detailed information about each person who opened the email:
The way that it works is that it embeds a 1 by 1 pixel, a small picture that is tiny. And it‘s white, so it blends into the background on the email.
If you look at Exhibit 14, . . . you see those little Xs, the little images where it says X? That is the tracking picture. And so each one of those has some type of unique code or name that communicates back to a server when it is opened or viewed or an action is taken.
And so it gives you . . . very accurate and detailed information about who is reading the email, who did they forward it to . . . . [Y]ou can get really valuable information.
Once this application gave Mr. Manookian a physical address where the email was opened, he used another service—one used by private investigators—to acquire still more personal information:
I then used a service that we have . . . called TLOXP, and it‘s essentially a database used by skip tracers and private investigators where if you, for example, put in an address . . . you get a report back that‘s every – all publicly available data that is tied to that address. . . .
. . . .
. . . I ran the TLOXP report for [the address]. And so I got back I think it was close to a 100-page report that said, “This is all the information we have about [the address]. This is where – this is who the utility bills are to. This is, for example, people who‘ve lived here, this is where they have lived before. This is what was paid for the property. This is the VIN and the license plate that are registered to that address.”
Perhaps not surprisingly, Mr. Manookian said this email, sent to all of the Shao counsel and beyond, “was getting a lot of hits. A lot of people were reading it.”39 His purpose, Mr. Manookian said, was “to confirm that, ‘Mr. North, I know you‘re the one who is reading this at [Mr. North‘s home address], here is all the information tied to [Mr. North‘s home address].‘”
The panel asked Mr. Manookian if his purpose was to embarrass Mr. North. Mr.
Still, Mr. Manookian claimed he now regrets the North emails:
I regret having sent this email. I shouldn‘t have done it. I was angry and upset at the multiple times that he would reference interrogatory information about me totally unnecessarily just to serve it on my wife. But I shouldn‘t have been goaded into this. I shouldn‘t have done it.
He voiced similar regret about the Gideon emails:
Mr. Gideon described my apology to him as insincere. It was anything but. I am sorry for any anxiety or anguish that I caused him. I am sorry for the conduct that has resulted in this. And again, it was a lack of judgment and discipline, frankly, and I recognize that.
The final witness called by the Board in rebuttal was Judge Gayden. Contrary to the implications in Mr. Manookian‘s email to the Shao counsel, Judge Gayden testified he had a good opinion about Mr. North‘s reputation for truth and veracity. Judge Gayden clarified that his “opinion is that Judge Brothers is not a corrupt judge” and said he had never voiced an opinion to Mr. Manookian that Judge Brothers is corrupt.
That testimony concluded the evidentiary hearing.
Hearing Panel Report and Recommendations
On May 20, 2020, the panel filed its report and recommendations. The report opened:
Lawyers make mistakes. Some lawyers make numerous mistakes.
This matter is not about a lawyer making mistakes. Instead, it is about a lawyer who recklessly accused a judge of being corrupt, repeatedly belittled and degraded opposing counsel, and made a threat against another lawyer‘s family.
Prior to appearing before this panel, Brian Manookian had a history of failing to adhere to the Rules of Professional Conduct and ignoring warnings from members of the judiciary. He has already been sanctioned and suspended from the practice of law on multiple occasions, yet his unethical conduct continued.
The hearing panel expressly credited the testimony of Mr. Gideon, Mr. North, Judge Brothers, and Judge Gayden. Based on considerable evidence presented at the hearing, the panel concluded that Judge Brothers “has a reputation for being a truthful person and honorable Judge.” Also based on substantial evidence at the hearing, it concluded that Mr. North “has a reputation for being a truthful and honest person.”
In contrast, the panel noted that substantial testimony showed Mr. Manookian has a well-established reputation for being untruthful, untrustworthy, and dishonest. It noted that Mr. Manookian offered no witnesses or testimony to rebut the substantial evidence establishing his reputation for dishonesty. It observed: “Mr. Manookian did not even ask for an assessment o[f] his reputation when his close personal friend, Judge Gayden, testified.”
The panel concluded that Mr. Manookian “has a reputation for being an untruthful and dishonest person.” It expressly
The BPR argued that Mr. Manookian could not challenge the factual findings and conclusions of law in the orders entered by Judge Brothers and Judge Ash and affirmed by the Court of Appeals, without appeal, based on the doctrine of collateral estoppel. The hearing panel declined to address collateral estoppel because the hearing included “overwhelming and independent evidence that the emails at issue were sent to opposing counsel in the representation of a client for no substantial purpose other than to threaten, insult, disparage, demean, embarrass and/or attempt to intimidate opposing counsel to gain some tactical advantage in the Shao case.”
The panel concluded that Mr. Manookian violated
The panel believed that Mr. Manookian‘s letter constituted in-court speech. However, even if it were considered out-of-court speech, the evidence established decisively that his assertions about Judge Brothers “were false, made with reckless disregard for their truth and made with the intent to impugn Judge Brothers and disrespect the Bench.” The panel summarized:
Should a lawyer have a good-faith basis that a member of the bench is corrupt, he has every right to act accordingly. However, that is not the case here. Mr. Manookian published serious allegations against a sitting judge without any good-faith basis to do so. The panel finds that his serious attack of Judge Brothers‘s character with reckless disregard for the truth is a violation of Rule 8.2.
The panel next determined Mr. Manookian violated
. . . Mr. Manookian was representing the plaintiff in the Shao case and he knew that Mr. Gideon was representing one of the defendants in the Shao case. The email was sent to opposing counsel in the Shao case at a time when discovery objections were at issue and being discussed.
Regardless, the panel pointed out, “Mr. Manookian took it a step further and filed an unredacted copy of the August [19], 2017 email in a formal pleading in the Shao case on September 5, 2017.”
The panel rejected Mr. Manookian‘s explanations for his conduct. It found:
[T]he emails at issue served no substantial purpose other than to threaten, intimidate, demean, embarrass, harass and distract opposing counsel in the Shao case pending in the Circuit Court for Davidson County. None of the communications served to advance the litigation
or advocate for Mr. Manookian‘s clients, which is the role of the trial lawyer.
(footnote omitted).
As to Footnote 1, with information about Mr. Gideon‘s son, a former client of Mr. Manookian, the panel found that Mr. Manookian violated
. . . mischaracterized Mr. Gideon‘s son and the underlying event. The Panel also finds that it was simply not necessary for Mr. Manookian to provide specific information about the case where he represented Mr. Gideon‘s son. Finally, the Panel finds Mr. Manookian acted knowingly in an effort to embarrass Mr. Gideon and his son, and such misconduct had the potential for serious injury to his former client.
The panel also found that the emails and Footnote 1 Mr. Manookian sent to the Shao counsel and others constituted conduct “prejudicial to the administration of justice” in violation of
To determine the proper discipline, the hearing panel considered the applicable American Bar Association Standards for Imposing Lawyer Sanctions (“ABA Standards“).42 Under ABA Standards 4.21 and 6.21,43 the hearing panel concluded that disbarment was the appropriate baseline sanction as to each rule violation. The hearing panel found four aggravating factors: Mr. Manookian‘s prior discipline, multiple offenses, substantial experience in the practice of law, and refusal to acknowledge
Despite finding that disbarment was the baseline sanction, without explanation, the hearing panel concluded that Mr. Manookian should be suspended from the practice of law for twenty-four months. It stated that the suspension should begin after the end of any suspensions Mr. Manookian was serving. The hearing panel also found he should complete twelve hours of anger management training before any reinstatement.
Trial Court Review
Mr. Manookian filed a petition for review of the hearing panel‘s decision in the Davidson County Chancery Court, under
Mr. Manookian argued that the hearing panel proceedings were plagued by errors and that the panel misapplied the disciplinary standards. The Board disputed all of Mr. Manookian‘s arguments.
The Board further contended that the hearing panel abused its discretion by failing to impose the baseline sanction of disbarment. Mr. Manookian moved to dismiss the Board‘s claim because the Board did not file its own petition for review under
In its analysis, the trial court first addressed Mr. Manookian‘s argument that, no matter how distasteful his statements may have been, he had the right to make them under the First Amendment of the U.S. Constitution. The trial court noted that the Court of Appeals rejected the free speech argument, and Mr. Manookian did not appeal that ruling. See Shao, 2019 WL 4418363, at *6. But the trial court evaluated it anyway.
The trial court observed that all seven communications at issue targeted opposing counsel and the trial judge in a lawsuit where Mr. Manookian represented a party. The statements by Mr. Manookian were made primarily in email communications that “were connected to or arose out of a judicial proceeding, and involved people in that very same judicial proceeding.” Applying an objective standard, it held that the statements were not entitled to protection under the First Amendment:
Mr. Manookian‘s numerous statements were made in the course of a judicial proceeding but had no relevance to that proceeding. There was no purpose
to the statements other than to intimidate or offend the opposing counsel or the trial court. Furthermore, no reasonable attorney would have acted as Mr. Manookian. Even though the trial court sanctioned Mr. Manookian on three occasions, he remained undeterred.
After rejecting Mr. Manookian‘s First Amendment argument, the trial court considered Mr. Manookian‘s procedural arguments and rejected those as well. It held that the findings of the hearing panel as to violations of the Rules of Professional Conduct were not arbitrary or capricious, and were supported by evidence that is both substantial and material, in light of the entire record.
The trial court then considered the sanction recommended by the hearing panel. It rejected Mr. Manookian‘s contention that the sanction was too harsh. It agreed with the Board that the hearing panel‘s decision to deviate downward from the presumptive sanction of disbarment, with no explanation or finding to support the downward deviation, was arbitrary and capricious. Had the Board correctly appealed this issue, the trial court said, it “would have imposed a sanction of disbarment.” It added that, “while Mr. Manookian may believe the sanction is unduly harsh, it is significantly less than what it should have been.” The trial court affirmed the decision of the hearing panel.
The Board filed a notice of appeal under
STANDARD OF REVIEW
Disciplinary Counsel of the Board of Professional Responsibility is charged with investigating complaints against attorneys in Tennessee.
Either party may appeal the judgment of the hearing panel by filing a petition for review in the circuit or chancery court.
may reverse or modify the decision if the rights of the party filing the Petition for Review have been prejudiced because the hearing panel‘s findings, inferences, conclusions or decisions are: (1) in violation of constitutional or statutory provisions; (2) in excess of the hearing panel‘s jurisdiction; (3) made upon unlawful procedure; (4) arbitrary or capricious or characterized by abuse of discretion or clearly unwarranted exercise of discretion; or (5) unsupported by evidence which is both substantial and material in the light of the entire record.
ANALYSIS
The ultimate issue before the Court is whether the sanction imposed by the hearing panel is appropriate under the circumstances. We first consider preliminary matters raised by Mr. Manookian, then review the rule violations and attorney misconduct, and then discuss both parties’ arguments on the sanction. See In re Sitton, 618 S.W.3d 288, 295 (Tenn. 2021).
I. Issues Raised by Mr. Manookian
A. Procedural Error
Mr. Manookian argues he has the right to a new evidentiary hearing because of procedural defects in the hearing panel proceedings that render them “made upon unlawful procedure” under
Here are the relevant facts: On March 13, 2020, after Mr. Manookian‘s hearing concluded but before the panel issued its judgment, an attorney who was a member of the hearing panel decided to apply for a job the BPR posted. That day, he sent notice via email to both parties and the other hearing panel members that he intended to apply for a Board position. He offered to step down from the case if there were any objections. About an hour later, the panel invited any objections, and Mr. Manookian responded with his objection. Mr. Manookian also moved to disqualify the panel member from participating in the case. On March 17, the initial hearing panel member gave notice that he was voluntarily stepping off the panel, rendering Mr. Manookian‘s motion to disqualify moot. On March 20, the initial member was replaced by a new member who participated in the final decision.
A few days later, the Board filed a transcript of the testimony with the hearing panel, including the replacement member, and sent a copy of the transcript to Mr. Manookian, who used it to prepare proposed findings of fact and conclusions of law he submitted to the hearing panel on April 20, 2020. Subsequently, the replacement panel member joined the hearing panel‘s May 20, 2020, Report and Recommendation. The opening and closing statements were not transcribed.
Mr. Manookian raises several alleged improprieties. He is concerned that (1) the replacement panel member did not review the exhibits and transcript of the testimony provided to him; (2) the transcript provided did not include the opening and closing statements; (3) the replacement
Mr. Manookian offers no evidence to support his concern that the replacement panel member did not review the exhibits and testimony provided to him, and we find none in the record. This issue is without merit.
In addressing these issues, the trial court ruled there was no procedural error because the replacement panel member did not need to review the opening and closing arguments, the withdrawal of the original panel member did not affect the process, and two out of the three panel members, i.e., a majority, saw and heard the witnesses testify. We agree.
Omitting the opening and closing statements from the transcript provided to the panel members did not render the transcript incomplete. They received the exhibits and a transcript of the testimony.49 It is axiomatic that opening statements and closing arguments are not evidence. See, e.g., Bradley v. Bishop, 538 S.W.3d 518, 534 (Tenn. Ct. App. 2017) (trial court gave curative instruction reminding jury that opening statements are not evidence and “the jury must only consider the presentation of testimony, depositions, exhibits, and stipulations as evidence“); Harris v. Baptist Mem‘l Hosp., 574 S.W.2d 730, 732 (Tenn. 1978).
It was not necessary for the replacement member to observe the witnesses’ demeanor at trial; there was ample evidence in the transcript about witnesses’ credibility to let the replacement member evaluate their credibility. A majority of the panel observed all of the witnesses’ demeanor. Multiple witnesses testified that both Judge Brothers and Mr. North had a reputation for honesty and truthfulness. And multiple witnesses gave uncontradicted testimony that Mr. Manookian had a well-established reputation for dishonesty.
The Board did not violate its procedure for the transcript, nor did it mislead Mr. Manookian. After the hearing, a scheduling order directed the Executive Secretary to distribute the complete hearing transcript to the hearing panel; it did not ask for only a portion. Moreover, had the panel asked for a partial transcript, Mr. Manookian could have asked for the rest of it.50 He did not do so.
And the record contradicts Mr. Manookian‘s assertion that he did not know until
We agree with the trial court that there was no procedural error in Mr. Manookian‘s hearing that justifies reversal.
B. First Amendment
Mr. Manookian makes several arguments that disciplining him for the conduct at issue violates the First Amendment of the U.S. Constitution.
At the outset, we note that, while appealing the sanctions imposed on him by the Shao trial court, Mr. Manookian argued to the Court of Appeals that all of this same conduct was protected under the First Amendment. Shao, 2019 WL 4418363, at *6. The Court of Appeals rejected the argument that the trial court sanctions were unconstitutional, in violation of his right to free speech. Id. Mr. Manookian chose not to appeal, and that decision is final.51
In Mr. Manookian‘s disciplinary proceedings, the same First Amendment arguments were rejected by the hearing panel, and also by the trial court in the appeal from the hearing panel‘s decision. We consider them now.
We first outline the applicable First Amendment analysis, then discuss the purpose of the conduct at issue, and finally review the individual rule violations.
1. First Amendment Overview
The free speech clause of the First Amendment to the United States Constitution applies to the states through the Fourteenth Amendment52 and provides: “Congress shall make no law . . . abridging the freedom of speech.”
The United States Supreme Court has recognized, however, that the First Amendment does not offer unbounded protection to attorney speech. “Membership in the bar is a privilege burdened with conditions.” Gentile v. State Bar of Nev., 501 U.S. 1030, 1066 (1991) (internal quotation marks omitted) (citing Theard v. United States, 354 U.S. 278, 281 (1957) (quoting In re Rouss, 116 N.E. 782, 783 (N.Y. 1917) (Cardozo, J.))). This Court has recognized this principle as well. See Parrish, 556 S.W.3d at 165 (listing courts that have “rejected the proposition that the First Amendment provides absolute protection to attorney speech“).54 Indeed, historically, the courts have long regulated the practice of law “and exercised the authority to discipline and ultimately to disbar lawyers whose conduct departed from prescribed standards.” Gentile, 501 U.S. at 1066.
The scope and extent of a lawyer‘s right to free speech may be tempered by the context in which the speech occurs. “[W]hen it comes to analysis under the First Amendment, . . . rights have always depended largely upon the nature of the forum.” Mezibov v. Allen, 411 F.3d 712, 718 (6th Cir. 2005), cert. denied, 547 U.S. 1111 (2006). “[I]n the courtroom itself, during a judicial proceeding, whatever right to ‘free speech’ an attorney has is extremely circumscribed.” Gentile, 501 U.S. at 1071. This Court has likewise held that “[t]he First Amendment does not preclude sanctioning a lawyer for intemperate speech during a courtroom proceeding.” Slavin, 145 S.W.3d at 549 (internal quotation marks omitted) (quoting Jacobson v. Garaas, 652 N.W.2d 918, 925 (N.D. 2002)) (emphasis removed). In the courtroom, a lawyer‘s right to free speech is “often subordinated to other interests inherent in the judicial setting.” Id. In Slavin, the trial judge imposed discipline on the attorney for remarks in court or in pleadings, “[w]ithout even considering whether these representations are truthful or not,” because they were degrading, demeaning, and “prejudicial to the administration of justice.” Id. at 544. This Court affirmed, holding that the attorney‘s “in-court remarks were not protected by the First Amendment.” Id. at 550.
On the other end of the spectrum, this Court has held that an attorney‘s public statements critical of the judiciary, made to the media outside the courtroom, not in pleadings and not in the context of representation in a specific pending case, were entitled to First Amendment protection. Ramsey v. Bd. of Pro. Resp. of Sup. Ct. of Tenn., 771 S.W.2d 116, 120–22 (Tenn. 1989). The Ramsey Court sought to “balance . . . a lawyer‘s right to speak, the right of the public and the press to have access to information, and the need of the bench and bar to [e]nsure that the administration of justice is not prejudiced by a
One of the statements at issue here was made in a pleading filed in the pending Shao case. Statements in pleadings were deemed in Parrish to be in-court speech. 556 S.W.3d at 167 (statements in motions for reconsideration and recusal that impugned the integrity of the appellate judges described as “in-court statements“). The other statements, however, occurred in emails to opposing counsel and other persons in the context of Mr. Manookian‘s representation of the Shao plaintiff while the case was pending. This Court has not addressed attorney speech in this setting, not exactly in-court but nevertheless made during and in the context of the lawyer‘s representation in a specific, pending case.
But other courts have. Courts have let the government limit the speech of lawyers when the speech pertains to a pending judicial proceeding or when it prejudices the
administration of justice. See Gentile, 501 U.S. at 1072. “[L]awyers in pending cases [are] subject to ethical restrictions on speech to which an ordinary citizen would not be.” Id. at 1071 (citing In re Sawyer, 360 U.S. 622 (1959)). Some courts reason that “an attorney, by the very nature of his job, voluntarily agrees to relinquish his rights to free expression in the judicial proceeding . . . .” Mezibov, 411 F.3d at 719.
Gentile, for example, involved out-of-court statements by a lawyer who represented a party to a pending proceeding in court. 501 U.S. at 1063-64, 1070. The United States Supreme Court commented in that case that “the speech of lawyers representing clients in pending cases may be regulated under a less demanding standard” than the standard for regulation of the press. Id. at 1074. It described a balancing process in such cases, in which the court “weighs the State‘s interest in the regulation of a specialized profession against the lawyer‘s First Amendment interest in the kind of speech that was at issue.” Id. at 1050-51. This balancing process gives appropriate weight to “the vital role that the justice system plays in our society and the state‘s unique interests in regulating the legal profession.” Matter of Abrams, 488 P.3d 1043, 1051 (Colo. 2021).
State courts that have addressed lawyer speech outside the courtroom but in a pending case have reasoned that such speech “‘may be regulated under a less demanding standard’ because the lawyer in that role is an officer of the court.” Id. (quoting Gentile, 501 U.S. at 1074-75); see also Iowa Sup. Ct. Att‘y Disciplinary Bd. v. Weaver, 750 N.W.2d 71, 90 (Iowa 2008) (stating it is “well established that the speech of lawyers may be curtailed in order to avoid improper influence on pending cases . . . to otherwise prevent the obstruction of justice.“). The
To evaluate the lawyer‘s interest in the Gentile balancing process, we consider not only the context but also the purpose of the speech. For example, “[l]awyer speech that advances client interests, checks governmental power, or advocates on matters of public concern is provided the utmost protection under the First Amendment.” Matter of Abrams, 488 P.3d at 1051 (citing In re Primus, 436 U.S. at 426-29). See, e.g., NAACP v. Button, 371 U.S. 415, 429-30 (1963) (solicitation of clients for purpose of engaging in litigation as a form of political expression protected under the First Amendment).
In the balancing process, lawyer speech for such purposes would be weighed heavily. As discussed below, however, none of Mr. Manookian‘s speech was for a purpose provided this high level of First Amendment protection.
2. Context and Purpose of Mr. Manookian‘s Speech
To determine Mr. Manookian‘s First Amendment interests, we consider the context and purpose of his speech. In doing so, it is important to recognize that the incidents of misconduct in this appeal are not disconnected from one another. The hearing panel disciplined Mr. Manookian for these incidents:
- August 19, 2017 email to Mr. Gideon about Mr. Gideon‘s daughter‘s new employment, found by the hearing panel to be in response to Mr. Gideon being substituted in as defense counsel in Shao;
- September 5, 2017 “Footnote 1” filing in Shao in response to Mr. Gideon‘s motion for sanctions, which included unredacted information about Mr. Gideon‘s daughter as well as Footnote 1 about the lawsuit in which Mr. Manookian represented Mr. Gideon‘s son;
- March 30, 2018 “Good Friday” email with subject line Shao to Mr. North insinuating that Judge Gayden harbored beliefs that Mr. North had a propensity for dishonesty, exaggeration, and falsehood;
- June 7, 2018 email with subject line Shao to Mr. North with demeaning and insulting language, in violation of Judge Brothers‘s order;
- June 22, 2018 email with subject line Shao accusing Mr. North of dishonesty in the certificate of service for Mr. North‘s motion for sanctions;
- August 3, 2018 email to all counsel in Shao “disclosing” voicemail from Mr. North‘s brother, retired Judge Steve North, and describing allegations that Judge Brothers is “corrupt“; and
- August 4, 2018 email in Shao to Mr. North stating that he could see his previous email “being repeatedly opened” and including detailed personal information about Mr. North and his wife.
As to context, all of these instances of misconduct occurred in the course of the Shao litigation.55 The conduct was part and
As to purpose, the hearing panel found that the overarching purpose of all of Mr. Manookian‘s communications was the same: to gain unfair tactical advantage in Shao. Through his conduct, Mr. Manookian made it clear to all that, if lawyers or judges took strong legal positions adverse to him or sought to impose consequences on him, they and their families would soon regret it.
This purpose is perhaps best exemplified by Mr. North‘s reaction when he saw Mr. Manookian‘s 2017 conduct aimed at Mr. Gideon‘s children. Although Mr. North was not yet the target, seeing Mr. Manookian‘s behavior towards Mr. Gideon caused Mr. North to recognize that Mr. Manookian was willing “to go after somebody‘s family.” He thought, if Mr. Manookian is “willing to publicly humiliate Mr. Gideon‘s daughter in order to try to gain a tactical advantage in [the Shao] case, . . . he would do it against me.”
Mr. North‘s reaction does not appear to be an inadvertent after-effect of the events. Mr. Manookian‘s conduct served not only to intimidate the immediate target, but also achieve litigation success—unrelated to his lawyering ability or the merits of the case—by prompting other counsel to stand down rather than risk personal humiliation and emotional distress for them or their families.
Consistent with this pattern is Mr. Manookian‘s decision to allege, falsely and without evidence, that retired Judge North had repeatedly described Judge Brothers as “corrupt,” long after Judge Brothers voluntarily removed himself from the case. Beyond the immediate goal of creating family friction and discomfort for Mr. North, the incident would show future judges what lay in store for them if they tried to impose consequences on Mr. Manookian for unethical behavior.57 “[A] system in which intimidating attacks are permitted fosters the risk of eventually realizing the intended effect of such attacks: a potentially cowed judiciary.” Grievance Adm‘r v. Fieger, 719 N.W.2d 123, 141 (Mich. 2006).
Thus, none of Mr. Manookian‘s communications were for a purpose such as advancing legitimate client interests, checking government power, or advocating on a matter of public concern. As the hearing panel put it: “None of the communications served to advance the litigation or advocate for Mr. Manookian‘s clients, which is the role of the trial lawyer.” The purpose of all of the communications at issue was to gain unfair tactical advantage for Mr.
In light of this context and purpose, we consider the State‘s interest in disciplining Mr. Manookian for specific rule violations and weigh it against Mr. Manookian‘s First Amendment interests.
3. First Amendment and Specific Rule Violations
RPC 8.4(d)
Rule 8.4(d) of Tennessee‘s Rules of Professional Conduct prohibits attorneys from “engag[ing] in conduct that is prejudicial to the administration of justice.”
Mr. Manookian observes that some of the communications at issue were in emails and categorizes his speech as out-of-court speech. He contends that this Court cannot apply
In the Gentile balancing process, the State‘s interest in protecting the administration of justice weighs heavily. “A state‘s interest in regulating attorney speech is at its strongest when the regulation is necessary to preserve the integrity of the justice system . . . .” Matter of Abrams, 488 P.3d at 1051. “It is essential to the orderly administration of justice and for the preservation of its own dignity and honor that the officers of the court should be honorable in their dealings, not only with the court but with each other.” State v. Bomer, 162 S.W.2d 515, 521 (Tenn. 1942).
We give no weight in the balancing process to Mr. Manookian‘s interest in acquiring unfair tactical advantage through intimidating, embarrassing, debasing, and threatening opposing counsel personally and causing them concern for the well-being and safety of their families. Mr. Manookian cites no case, and we have found none, where lawyer speech in a pending case whose sole purpose was to coerce unfair strategic advantage by terrorizing opposing counsel and their families outweighed the State‘s interest in regulating such speech.
RPC 4.4(a)(1)
Mr. Manookian first argues that the information in these communications was truthful. He contends that the Board lacks authority to prohibit the transmission of truthful information under
Mr. Manookian is incorrect. First and foremost, this Court pointed out in Slavin that lawyer speech “need not be false” to warrant disciplinary action: “Respondent appears to believe that truth or some concept akin to truth, such as accuracy or correctness, is a defense to the charge against him. In this respect he has totally missed the point.” 145 S.W.3d at 549 (quoting Ky. Bar Ass‘n v. Waller, 929 S.W.2d 181, 183 (Ky. 1996) (holding that lawyer‘s in-court speech was not protected by the First Amendment)).
Moreover, these emails cannot be regarded as “truthful.” Like many of the most insidious untruths, the August 2017 email about Mr. Gideon‘s daughter was an amalgam of accurate facts, distortions, an outright lie, and strategic omissions, which taken together left an untrue impression. As to retired Judge North‘s purported unflattering opinion of Judge Brothers, despite Mr. Manookian‘s claim that Judge North told him such things, the alleged recording of the conversation was never produced,59 Judge North did not testify, and the only evidence of it was testimony from Mr. Manookian, who was deemed not credible by the hearing panel. Judge Brothers himself testified that the statements were untrue and that Mr. Manookian probably manufactured them. This is not an unreasonable inference.
Mr. Manookian next contends that his speech, in the form of emails to opposing counsel and other people, was out-of-court speech.60
Mr. Manookian concedes that his speech may have been “embarrassing.” Still, he maintains, embarrassing speech is protected by the First Amendment.
Zealous advocacy for a client in a specific pending case may involve speech that creates unease in other participants;
Here, the embarrassing aspect of the speech was not incidental; it was the point. This was not zealous advocacy; the hearing panel found that none of the communications served to advance the litigation or advocate for Mr. Manookian‘s client. They served no substantial purpose other than to threaten, intimidate, demean, embarrass, and harass opposing counsel in the pending Shao case. Again, Mr. Manookian cites no case, and we have found none, where lawyer speech in a pending case whose purpose was to coerce, embarrass, and burden opposing counsel and their families outweighed the State‘s interest in regulating such speech. We conclude that disciplining Mr. Manookian for his misconduct under
RPC 8.2(a)(1)
First, the hearing panel found that the central message conveyed in the footnote, that Judge Brothers was corrupt, was false.61 This finding was well founded in the evidence. The testimony from all of the witnesses except Mr. Manookian supports the hearing panel‘s finding that Judge Brothers was widely regarded as “a truthful person and honorable Judge.” Mr. Manookian presented no significant evidence to the contrary.
The second element in
In Parrish, this Court observed that most courts that use the objective standard “have not drawn a distinction between in-court and out-of-court statements in considering the issue and have adopted an objective standard in determining whether attorney speech is entitled to First Amendment protection.” Id. at 165 (citing many other jurisdictions). Parrish adopted the objective standard but limited its holding to attorneys’ in-court statements in violation of
As described above, the statements in this case not made in pleadings were still made in the context of Mr. Manookian‘s representation of his client in Shao. This includes the emailed letter about Judge Brothers‘s alleged corruption. We do not go so far as the hearing panel and categorize emails as the equivalent of “in-court” speech, but communication among counsel made in pending litigation is clearly adjacent to in-court speech. The United States Supreme Court in Gentile considered both types of attorney speech similarly. It noted that the Court in past cases “expressly contemplated that the speech of those participating before the courts could be limited” and instead distinguished “between participants in the litigation and strangers to it.” Gentile, 501 U.S. at 1072-73 (emphasis in original).
In explaining the decision to adopt an objective standard for in-court speech, Parrish observed that “application of the subjective ‘actual malice’ standard of Sullivan to attorney discipline ‘would immunize all accusations, however reckless or irresponsible, from censure as long as the attorney uttering them did not actually entertain serious doubts about their truth.‘” 556 S.W.3d at 165 (quoting Matter of Holtzman, 577 N.E.2d at 34). It differentiated between a defamation action, which redresses a wrong to an individual, and an attorney disciplinary action, where “the wrong is against society as a whole, the preservation of a fair, impartial judicial system, and the system of justice as it has evolved for generations,” adding that “[u]nwarranted statements criticizing judges only serve to weaken the public‘s trust in the judicial system.” Id. at 166 (citing In re Cobb, 838 N.E.2d 1197, 1213 (Mass. 2005)).
Those same considerations are present here. The objective standard adopted in Parrish is appropriate to apply to Mr. Manookian‘s statement about Judge Brothers. As with in-court speech, “[t]he
Applying the objective standard, the hearing panel concluded that “no reasonable lawyer would believe that Judge Brothers ‘is corrupt and has been for some time.‘”63 We agree. The hearing panel heard ample evidence that Judge Brothers was widely regarded as an honest and capable judge. Mr. Gideon testified that Judge Brothers has an excellent reputation for truthfulness and veracity, and there was no truth to Mr. Manookian‘s allegations. Judge Gayden testified that Judge Brothers was not a corrupt judge. Mr. North testified that he practiced in front of Judge Brothers for decades and Judge Brothers had an “impeccable reputation for truth and veracity.” Judge Brothers himself testified that the statements were offensive, defamatory, and unfounded.
Despite Mr. Manookian‘s assertion that retired Judge North told him Judge Brothers was corrupt, Mr. Manookian never produced his alleged recording of the conversation, Judge North did not testify, and the only evidence of any such conversation was testimony from Mr. Manookian, who was discredited by the hearing panel. Indeed, Mr. Manookian testified that his own experience with Judge Brothers was favorable: “My experience in Judge Brothers’ court has always been that he is a very good judge. He‘s very thoughtful, analytical. . . . He is a very good medical malpractice judge.” The hearing panel‘s conclusion is well founded.
Under these circumstances, disciplining Mr. Manookian for violating
RPC 1.9(c)
As noted in Parrish, court pleadings are considered in-court speech, the category in which the State‘s interest in regulating lawyers is at its highest. See Parrish, 556 S.W.3d 153; Slavin, 145 S.W.3d at 549. Further, as observed in Abrams, “[a] state‘s interest in regulating attorney speech is at its strongest when the regulation is necessary to preserve the integrity of the justice system or to protect clients.” 488 P.3d at 1051. Here, the State‘s interest is in both—Mr. Manookian undermined the justice system by seeking unfair tactical advantage in Shao through the misuse of information relating to his representation of a former client.
Mr. Manookian maintains that, under the First Amendment, he cannot be disciplined for including Footnote 1 in his pleading because it accurately recites information that can be found in a public record and thus is “truthful.”
As we have emphasized, the First Amendment would not shield Mr. Manookian from discipline under
Here, truthful or not, Mr. Manookian revealed information relating to his representation of his former client, Mr. Gideon‘s son, and used that information to the disadvantage of his former client. The lawsuit in which Mr. Manookian represented Mr. Gideon‘s son involved a sensitive sexual matter. The hearing panel soundly rejected Mr. Manookian‘s explanation that he included Footnote 1 about Mr. Gideon‘s son in the pleading only to show that his “prior experience with Mr. Gideon‘s adult children [was] limited to having successfully represented his adult son . . .” Indeed, at the hearing, Mr. Manookian conceded that he interjected Mr. Gideon‘s son into Shao because he was angry at Mr. Gideon. The hearing panel found that Mr. Manookian weaponized the sensitive nature of the son‘s lawsuit in an attempt to coerce Mr. Gideon into standing down in Shao. The hearing panel‘s finding is well founded.
But regardless, Footnote 1 cannot be characterized as “truthful.” The testimony before the hearing panel showed that Footnote 1 consisted of selected information from the filings in Mr. Gideon‘s son‘s lawsuit curated specifically to leave a false impression. Mr. Gideon testified to the hearing panel that Mr. Manookian‘s description in Footnote 1 was “written to make it look like my son was knowingly communicating with a guy for their joint mutual sexual satisfaction. That‘s not right. That‘s not accurate.” The hearing panel credited Mr. Gideon‘s testimony that Footnote 1 was overall not truthful.65
In sum, the First Amendment offers no shield to Mr. Manookian from discipline for the ethics violations in this appeal. As in Gentile, Mr. Manookian “as a citizen [cannot] be denied any of the common rights of citizens.” 501 U.S. at 1074 (quoting In re Cohen, 166 N.E.2d 672, 675 (N.Y. 1960)). But he stands before this Court “in another quite different capacity, also. As a lawyer he was an officer of the court, and, like the court itself, an instrument of justice.” Id. (quoting In re Cohen, 166 N.E.2d at 675) (cleaned up).
C. Substantial and Material Evidence
Mr. Manookian next argues that the hearing panel erred in finding that his conduct violated the Rules of Professional Conduct. As noted above, we reverse or modify the hearing panel‘s decision if it is:
- in violation of constitutional or statutory provisions;
- in excess of the hearing panel‘s jurisdiction;
- made upon unlawful procedure;
- arbitrary or capricious or characterized by abuse of discretion or clearly unwarranted exercise of discretion; or
- unsupported by evidence which is both substantial and material in the light of the entire record.
Here, Mr. Manookian argues primarily that the hearing panel‘s factual findings are either arbitrary or capricious, or they are “unsupported by evidence which is both substantial and material,” or both.
As explained below, none of the hearing panel‘s findings on rule violations are either arbitrary or capricious, and all are supported by substantial and material evidence.
1. Revealing Former Client Information
The hearing panel in this case found that Mr. Manookian violated
Mr. Manookian‘s prior experience with Mr. Gideon‘s adult children is limited to having successfully represented his adult son in a matter involving Mr. Gideon‘s adult son exchanging sexually graphic emails with a much older man for the sexual gratification of the older man.
Ensuring that anyone reading Footnote 1 could find the sensitive client information referenced, the footnote included the heading of the case naming Mr. Gideon‘s son, the court in which the case was filed, the docket number, and the pleading, complete with specific page references.
We note at the outset that Mr. Manookian inasmuch as admitted that he violated
Mr. Manookian next argues the record does not contain substantial and material evidence that the information he revealed about Mr. Gideon‘s son was not “generally known.”69 He argues it was generally known because it came from a public record, namely, a pleading filed with the Davidson County Circuit Court that was not under seal and was available through the court clerk‘s office.
In the hearing, Mr. Gideon testified that his son‘s lawsuit settled in 2008 or 2009, did not get publicity while it was pending, and never became generally known in the community. Judge Brothers, a Davidson County Circuit Court Judge for thirty years, testified that he was not aware of the lawsuit until Mr. Manookian revealed it in the Shao pleading.70 That Mr. Manookian included in Footnote 1 detailed information on how to find the referenced pleading indicates he understood that most anyone reading Footnote 1, outside the target, Mr. Gideon, would not be familiar with the matter.
We agree with the hearing panel that information that is publicly available is not necessarily “generally known.”71 The exception in
The hearing panel found that Mr. Manookian knowingly revealed, mischaracterized, and used information related to his former representation of Mr. Gideon‘s son to embarrass and intimidate Mr. Gideon, with the potential for serious disadvantage of his former client in violation of
2. False Statement About Integrity of a Judge
The hearing panel found that Mr. Manookian made false statements about Judge Brothers‘s integrity in footnote 1 of his August 3, 2018 letter to opposing counsel Mr. North and other persons, reciting a purported conversation with Mr. North‘s brother Judge North, and that Mr. Manookian made the statements with reckless disregard for their truth or falsity.73 The panel found that this violated
Mr. Manookian argues that, as a matter of law, there is not substantial and material evidence that he was reckless because footnote 1 to the August 3 letter only recounted what retired Judge Steve North said about Judge Brothers.75
Thus, the hearing panel‘s finding that Mr. Manookian violated
3. No Substantial Purpose Other Than to Embarrass, Delay, or Burden
The hearing panel found that, in the course of representing his client in Shao, Mr. Manookian repeatedly used “means that have no substantial purpose other than to embarrass, delay, or burden a third person,” in violation of
Mr. Manookian first argues there is not substantial and material evidence to support the hearing panel‘s finding that his August 19, 2017 email to Mr. Gideon regarding Mr. Gideon‘s daughter was made “in the representation of a client,” so his statements in that email did not violate
The hearing panel observed that, between 2011 and 2017, Mr. Manookian and Mr. Gideon did not speak, socialize, or interact with each other.78 Mr. Manookian sent the August 19 email from his law firm email address with his firm signature at the bottom, and he sent it to Mr. Gideon‘s law firm email, only a couple of days after Mr. Gideon sent his letter in Shao detailing significant deficiencies in Mr. Manookian‘s discovery responses. Mr. Manookian claimed he had not seen Mr. Gideon‘s letter
Reviewing all of this evidence and considering its finding that Mr. Manookian‘s testimony was not credible, the hearing panel found that, when Mr. Manookian sent the August 19 email, “Mr. Manookian was representing the plaintiff in the Shao case and he knew that Mr. Gideon was representing one of the defendants in the Shao case. The email was sent to opposing counsel in the Shao case at a time when discovery objections were at issue and being discussed.” The hearing panel also noted that Mr. Manookian attached the same email, in unredacted form, to his response to Mr. Gideon‘s motion in Shao for sanctions, thus removing any doubt as to whether the August 19 email should be considered part of Mr. Manookian‘s representation in Shao. We find substantial and material evidence in the record to support the finding that Mr. Manookian sent the August 19 email in the course of representing his client in Shao.
The hearing panel found that Mr. Manookian‘s email to Mr. Gideon about his daughter “served no substantial purpose other than to threaten, intimidate, demean, embarrass, harass and distract” Mr. Gideon in the Shao litigation and that it “[was] intended to, and did, distract opposing counsel and the judge from the underlying case.” It noted again that Mr. Manookian and Mr. Gideon had no contact with one another for several years after Mr. Manookian left the law firm, yet Mr. Manookian sent his email shortly after Mr. Gideon was retained in Shao and sent a letter criticizing Mr. Manookian‘s discovery responses.79 The hearing panel‘s finding that this email served no purpose other than to threaten, embarrass, delay, and burden Mr. Gideon is supported by substantial and material evidence in the record.
Mr. Manookian next argues there is not substantial and material evidence that his March 30 email to opposing counsel Mr. North constituted “means that have no substantial purpose other than to embarrass, delay, or burden a third person . . . .”
Mr. Manookian argues that the remainder of the emails found to violate
For example, Mr. Manookian testified he sent the August 3, 2018 emailed letter, recounting a purported conversation with retired Judge North about Judge Brothers‘s alleged corruption, in response to Mr. North‘s sanctions motion and as notice he would file the recording of retired Judge Steve North because the sanctions motion questioned his efforts to disqualify Judge Brothers. He claimed he included footnote 1 in the letter, accusing Judge Brothers of corruption, to counter accusations in the sanctions motions that his efforts to disqualify Judge Brothers were inappropriate. The hearing panel rejected this explanation, noting that Mr. North‘s motion did not seek sanctions against Mr. Manookian for his efforts to disqualify Judge Brothers, and at any rate Judge Brothers transferred the case four months before Mr. Manookian‘s letter. The hearing panel concluded that the emailed letter served no legitimate purpose other than to embarrass Judge Brothers and recklessly attack his integrity. The hearing panel also observed that while Mr. Manookian claimed the email sought to confirm that it was retired Judge North who had called him before he repeated the salacious details, Mr. Manookian went ahead with no confirmation and circulated his August 3, 2018 letter to Mr. North, Mr. Gideon, and eighteen other people.
Mr. Manookian claimed his August 4, 2018 email to Mr. North served the purpose of showing that Mr. North had been receiving and opening Mr. Manookian‘s emails but not responding to them. The hearing panel rejected this explanation, noting that the August 4, 2018 email to Mr. North contained a slew of personal information Mr. Manookian had unearthed about Mr. North and his wife, complete with distorted and unsupported unflattering inferences. Mr. Manookian admitted he included information about Mr. North having obtained property from his parents and an accusation that Mr. North left his previous wife for his current wife all for the purpose of embarrassing Mr. North. He conceded that he put much of the information in the August 4 email because of his “frustration at that time in the Shao case.” Mr. North described the email as threatening and offensive, an attempt to embarrass him, his wife, and his family. He said the email was greatly embarrassing to him and put a lot of emotional stress on his wife.
Most important, as to all of the communications at issue for
4. Conduct Prejudicial to the Administration of Justice
The hearing panel found that all of the communications by Mr. Manookian at issue in this appeal constituted conduct that is prejudicial to the administration of justice.82
Consequently, all of the conduct violated
The hearing panel found:
The emails sent by Mr. Manookian to opposing counsel and others violated
RPC 8.4(d) because they were prejudicial to the administration of justice. They were intended to, and did, distract opposing counsel and the judge from the underlying case. Judge Brothers testified that he finally recused himself from the Shao case, nonetheless, because of repeated efforts by Mr. Manookian to continually interject either problems with counsel or the Court.
In Slavin, this Court held that similar gratuitous disparaging remarks about another lawyer is conduct that is prejudicial to the administration of justice, in violation of
Additionally, as explained above, substantial and material evidence supports the hearing panel’s findings that Mr. Manookian violated
In sum, as to each of the rule violations found by the hearing panel, none were either arbitrary or capricious, and all were supported by substantial and material evidence.
II. Section 33.1 and the Trial Court
After the hearing panel issued its decision, Mr. Manookian filed a petition for review with the trial court. In his petition, Mr. Manookian argued that the sanction recommended by the hearing panel was too harsh. The Board did not file a separate petition for review, but in its brief to the trial court, the Board argued that the hearing panel’s decision to impose suspension instead of disbarment was arbitrary and capricious and that Mr. Manookian
Appeals in lawyer disciplinary proceedings are governed by
(a) The respondent or petitioning attorney or the Board may appeal the judgment of a hearing panel by filing . . . a Petition for Review in the circuit or chancery court . . . .
(b) The review shall be on the transcript of the evidence before the hearing panel and its findings and judgment. . . . The court may affirm the decision of the hearing panel or remand the case for further proceedings. The court may reverse or modify the decision if the rights of the party filing the Petition for Review have been prejudiced because the hearing panel’s findings, inferences, conclusions or decisions are: . . . (4) arbitrary or capricious or characterized by abuse of discretion or clearly unwarranted exercise of discretion . . . .
In comparison, under our Rules of Appellate Procedure, cross appeals are not required and parties can raise issues on appeal even if they did not file their own appeal. See
The Board argues the trial court should have let it do the same. It contends that the language of
“Interpretation of a rule of the Tennessee Supreme Court is a question of law, which we review de novo.” Hornbeck v. Bd. of Pro. Resp. of Sup. Ct. of Tenn., 545 S.W.3d 386, 395 (Tenn. 2018).
The Board makes a valid point that this interpretation of
The trial court did not err in holding it lacked authority under
III. Appropriateness of Sanction
We look next at whether the discipline imposed by the hearing panel is too harsh or too lenient. In an issue of first impression, Mr. Manookian argues that, under
Similarly, the reference in
Most important, this Court has inherent authority under the Tennessee Constitution to review all attorney discipline. Under
Tennessee’s General Assembly “has acknowledged this Court’s ‘broad conference of full, plenary and discretionary power,’ and its ‘general supervisory control over all the inferior courts of the [S]tate,’” Id. (citing
This Court’s inherent power under the Tennessee Constitution includes the authority to regulate and supervise the practice of law in this State. See, e.g., In re Sitton, 618 S.W.3d at 294; Dunlap v. Bd. of Pro. Resp. of Sup. Ct. of Tenn., 595 S.W.3d 593, 606 (Tenn. 2020); Flowers v. Bd. of Pro. Resp., 314 S.W.3d 882, 891 (Tenn. 2010); Petition of Burson, 909 S.W.2d 768, 774 (Tenn. 1995); see also Ex parte Garland, 71 U.S. 333, 378–79 (1866) (admission and exclusion of lawyers is a function of the judicial power held by the state supreme courts). This authority carries responsibility for “promulgating and enforcing the rules that govern the legal profession as part of [our] duty to regulate the practice of law in this state.” In re Sitton, 618 S.W.3d at 294 (quoting Bd. of Pro. Resp. v. MacDonald, 595 S.W.3d 170, 181 (Tenn. 2020)).
If this Court has the inherent and original power to prescribe the ethics rules governing the practice of law, “then this Court has the original power to review”
Thus, “[u]nder our inherent authority in the Tennessee Constitution, we review all attorney disciplinary judgments.” In re Sitton, 618 S.W.3d at 294. We review “attorney disciplinary appeals . . . to ensure that these rules are enforced in a manner that preserves both the integrity of the bar and the public trust in our system of justice.” Green v. Bd. of Pro. Resp. of Sup. Ct. of Tenn., 567 S.W.3d 700, 713 (Tenn. 2019) (citing Hughes, 259 S.W.3d at 647). Consequently, the Board’s failure to file its own separate petition for review with the trial court does not limit our authority, or our responsibility, to review the sanction imposed on Mr. Manookian.86
A. Presumptive Sanction
To determine the proper discipline, the Court looks first to the ABA Standards. In re Sitton, 618 S.W.3d at 298 (citing In re Vogel, 482 S.W.3d 520, 533 (Tenn. 2016));
For Mr. Manookian’s violations of
6.0 Violations of Duties Owed to the Legal System
. . . .
6.2 Abuse of the Legal Process
. . . .
6.21 Disbarment is generally appropriate when a lawyer knowingly violates a court order or rule with the intent to obtain a benefit for the lawyer or another, and causes serious injury or potentially serious injury to a party or causes serious or potentially serious interference with a legal proceeding.
ABA Standard 6.21. The hearing panel noted that the commentary to ABA Standard 6.2 adds: “Lawyers should be disbarred for intentionally misusing the judicial process to benefit the lawyer or another when the lawyer’s conduct causes injury or potentially serious injury to a party, or serious or potentially serious interference with a legal proceeding.”
For Mr. Manookian’s violation of
4.2 Failure to Preserve the Client’s Confidences
. . . .
4.21 Disbarment is generally appropriate when a lawyer, with the intent to benefit the lawyer or another, knowingly reveals information relating to representation of a client not otherwise lawfully permitted to be disclosed, and this disclosure causes injury or potential injury to a client.
ABA Standard 4.21. Here, Mr. Manookian knowingly used information relating to his representation of Mr. Gideon’s son with intent to gain tactical benefit against opposing counsel Mr. Gideon in the Shao litigation. The hearing panel recited commentary to this ABA Standard stating that disbarment is appropriate when a lawyer: “knowingly uses information relating to representation of a former client with the intent to benefit the lawyer or another, and causes serious or potentially serious injury to a client. Although such cases are rare, disbarment is warranted when there is such an intentional abuse of the lawyer-client relationship.” The hearing panel found Mr. Manookian’s use of the information about the prior lawsuit created the potential for serious injury to his former client.
Under both of the ABA Standards the hearing panel considered applicable, disbarment is the baseline sanction. Mr. Manookian does not challenge the hearing panel’s determination that the presumptive sanction is disbarment. We agree these ABA Standards are applicable and disbarment is the correct presumptive sanction.
B. Aggravating and Mitigating Factors
“Next, aggravating and mitigating factors are considered to determine whether the presumptive sanction should be increased or decreased.” In re Sitton, 618 S.W.3d at 302 (quoting Green, 567 S.W.3d at 715). Aggravating circumstances are “any considerations or factors that may justify an increase in the degree of discipline to be imposed.” ABA Standard 9.21
The hearing panel found four aggravating factors: (1) substantial experience; (2) prior discipline; (3) multiple offenses; and (4) refusal to acknowledge wrongful nature of conduct. It observed first that Mr. Manookian has substantial experience in the practice of law; he has been licensed to practice law in Tennessee since 2007. See ABA Standard 9.22(i).
The hearing panel noted that Mr. Manookian has a prior history of discipline; a private informal admonition in 2014 for conduct relating to his divorce that violated
As a further aggravating factor, the hearing panel placed significant emphasis on Mr. Manookian’s multiple offenses. See ABA Standard 9.22(d). The hearing panel commented, “Mr. Manookian has displayed a custom and habit of sending abusive, threatening, demeaning, embarrassing communications to opposing counsel and third parties for no reasonably legitimate purpose other than to embarrass or intimidate persons involved in litigation with Mr. Manookian.”
We agree that the multiple offenses in this case are an aggravating circumstance. This is particularly so because of the nature of Mr. Manookian’s offenses. Instead of plumbing the facts and law related to Shao in order to prevail for his client, Mr. Manookian used the most personal information he could find about opposing counsel and their families, to intimidate opposing counsel into standing down rather than risk personal mortification for themselves
As yet another aggravating factor, the hearing panel found that Mr. Manookian refused to acknowledge the wrongful nature of his conduct. See ABA Standard 9.22(g). The hearing panel observed: “Mr. Manookian has never acknowledged that his conduct in this matter was unethical. Instead, he asserts that the Supreme Court cannot sanction him for his conduct in this disciplinary action.” This is also shown by his continuation of similar misconduct; the hearing panel observed that, “despite multiple warnings, punishment and opportunities for redemption, Mr. Manookian fails to learn and continues his horrific conduct.”
Mr. Manookian’s brief to this Court supports the hearing panel’s finding. To be sure, on a couple of occasions in his testimony to the hearing panel, Mr. Manookian included pro forma expressions of regret, but they were interwoven with an expressed view of himself as the real victim, as when he testified that he should not have allowed himself to be “goaded” into sending one of his offending emails to Mr. North. We have noted: “Remorse in this context means more than mere regret at having engaged in conduct that resulted in disastrous consequences to the offending attorney. It must include taking responsibility by appreciating and acknowledging the seriousness of the attorney’s misconduct.” In re Sitton, 618 S.W.3d at 303. In his brief to this Court, Mr. Manookian continues to minimize his misconduct by pointing to the facial purpose of his emails and pleadings. For example, he maintains that the hearing panel failed to appreciate that his email to Mr. North with electronically extracted personal information about Mr. North’s computer, his home address, his residential history, and his wife’s vehicle, was merely to show that Mr. Manookian could prove Mr. North “had been receiving and opening his emails but was not replying to them.” The hearing panel had ample reason to reject such sophistry. Mr. Manookian’s continuing “claim [that] this is all just a gross misunderstanding . . . is not taking responsibility.” Id. Thus, the hearing panel properly found that Mr. Manookian’s refusal to acknowledge the wrongful nature of his conduct was a fourth aggravating circumstance that justifies an increase in discipline.
Mr. Manookian does not dispute the existence of these four aggravating factors. He does, however, disagree with the hearing panel’s finding that there were no mitigating circumstances. Mr. Manookian contends that the hearing panel was obliged to consider the “imposition of other penalties or sanctions” as a mitigating factor under ABA Standard 9.32(k).90 He maintains that the hearing panel should have credited him for previous time suspended for the same offenses because he
The trial court considered and rejected this same argument, pointing out that none of the prior sanctions had deterred Mr. Manookian from further misconduct. It noted that, when this Court briefly reinstated Mr. Manookian’s license after the first temporary suspension, further violations quickly resulted in reinstatement of the suspension. The trial court observed, “To borrow an old adage, Mr. Manookian is the author of his own misfortune, and is not entitled to credit because of the prior sanctions imposed upon him.”
We agree. Under ABA Standard 9.32(k), the hearing panel was permitted to consider the other penalties and sanctions levied against Mr. Manookian as a mitigating factor. ABA Standard 9.32(k). However, it was not obligated to do so. We agree with the trial court that, given Mr. Manookian’s consistent pattern of misconduct, the hearing panel did not err in declining to consider the other penalties and sanctions he had garnered as a factor to mitigate his sanction. The hearing panel’s decision not to consider this a mitigating factor was neither arbitrary nor capricious under the circumstances of this case.
C. Sanction
Having considered the aggravating and mitigating factors, we now review the sanction in light of all of the circumstances. Bd. of Pro. Resp. of Sup. Ct. of Tenn. v. Barry, 545 S.W.3d 408, 424–25 (Tenn. 2018).
For the sake of uniformity, we seek to review the sanctions imposed in any other cases with similar circumstances. Allison, 284 S.W.3d at 327.
Mr. Manookian cites multiple cases in support of his contention that the sanction imposed by the hearing panel is more punitive than the sanction received by others similarly situated and that he should have received a shorter suspension or concurrent suspensions. The cases he cites include Beard v. Board of Professional Responsibility, 288 S.W.3d 838, 859 (Tenn. 2009) and Sneed v. Board of Professional Responsibility, 37 S.W.3d 886, 891 (Tenn. 2000), amended in part on reh‘g, (Jan. 3, 2001). But both Beard and Sneed are inapposite. Neither involves misconduct consisting of victimizing opposing counsel and their families, and for both the presumptive sanction under the ABA Standards was suspension, not disbarment.91 Beard, 288 S.W.3d at 851; Sneed, 37 S.W.3d at 890–91. None of the cases cited by Mr. Manookian are similar in conduct, and none involve a sanction of suspension after a finding that the presumptive sanction was disbarment with four aggravating and no mitigating factors. Mr. Manookian cites no comparable case showing that the sanction imposed by the hearing panel is too harsh.
Regardless of comparative cases, however, the primary tool for determining “appropriate and consistent sanctions for attorney misconduct” is the ABA Standards. Thompson v. Bd. of Pro. Resp. of Sup. Ct. of Tenn., 600 S.W.3d 317, 320 (Tenn. 2020) (quoting Bd. of Pro. Resp. of Sup. Ct. of Tenn. v. Daniel, 549 S.W.3d 90, 100 (Tenn. 2018)). The Standards themselves state their purpose:
The Standards constitute a model, setting forth a comprehensive system for determining sanctions, permitting flexibility and creativity in assigning sanctions in particular cases of lawyer misconduct. They are designed to promote: (1) consideration of all factors relevant to imposing the appropriate level of sanction in an individual case; (2) consideration of the appropriate weight of such factors in light of the stated goals of lawyer discipline; (3) consistency in the imposition of disciplinary sanctions for the same or similar offenses within and among jurisdictions.
ABA Standard 1.3 (“Purpose of These Standards”). Thus, the ABA Standards were “designed to promote . . . consistency in the imposition of disciplinary sanctions.” Barry, 545 S.W.3d at 421 (quoting ABA Standard 1.3). “Use of the ABA Standards will further the goal of our disciplinary system because they ‘combine clear, straight-forward guidelines which ensure a level of consistency necessary for fairness to the public and the legal system with the flexibility and creativity essential to secure justice to the disciplined lawyer.” Grievance Adm’r v. Lopatin, 612 N.W.2d 120, 127 (Mich. 2000) (quoting In re Buckalew, 731 P.2d 48, 52 (Alaska 1986)). They serve as a guide to impose “a level of discipline that takes into account the unique circumstances of the individual case, but still falls within broad constraints designed to ensure consistency.” Id.
Under the ABA Standards, barring unusual circumstances,92 once the correct presumptive sanction is determined, that sanction generally applies unless “aggravating or mitigating factors . . . indicate a greater or lesser sanction is appropriate.” In re Sitton, 618 S.W.3d at 299. Here, we have already determined that the correct presumptive sanction is disbarment. And the record supports the hearing panel’s finding of four significant aggravating circumstances that “may justify an increase in the degree of discipline to be imposed.” Lockett v. Bd. of Pro. Resp., 380 S.W.3d 19, 28 (Tenn. 2012) (quoting ABA Standard 9.21). Because disbarment is the most severe attorney discipline that can be imposed, the discipline cannot be increased, but the presence of four aggravating factors militates against imposing a lesser sanction.
In some cases, the presumptive sanction and even aggravating factors can be offset by mitigating circumstances, that is, “considerations or factors that may justify a reduction in the degree of discipline to be imposed.” Id. (quoting ABA Standard 9.22). Here, however, the hearing panel found none, and we have determined that this finding was neither arbitrary nor capricious.
On appeal from the hearing panel’s decision, the trial court commented that the sanction imposed by the hearing panel was “significantly less than what it should have been” and agreed with the Board that the hearing panel’s downward deviation from the presumptive sanction of disbarment was arbitrary and capricious under the circumstances. Had the Board filed its own petition for review, the trial court said, it “would have imposed a sanction of disbarment.”
We agree with the trial court. This Court has said that “[a]n arbitrary or capricious decision is one that is not based on any course of reasoning or exercise of judgment, or one that disregards the facts or circumstances of the case without some basis that would lead a reasonable person to reach the same conclusion.” City of Memphis v. Civ. Serv. Comm’n of City of Memphis, 216 S.W.3d 311, 316 (Tenn. 2007) (brackets omitted) (quoting Jackson Mobilphone Co. v. Tenn. Pub. Serv. Comm’n, 876 S.W.2d 106, 111 (Tenn. Ct. App. 1993)). The hearing panel offered no reasoning for its decision to impose suspension instead of the presumptive sanction, and its decision disregards the facts and circumstances of this case without any basis that would lead a reasonable person to do the same. Its decision can only be characterized as arbitrary and capricious.
As we consider the propriety of the sanction, several aspects of Mr. Manookian’s misconduct deserve particular comment. First, to say that Mr. Manookian engaged in multiple offenses is to understate. Despite lectures, fines, sanctions, and suspensions from judge after judge, Mr. Manookian did not choose merely to continue engaging in misconduct—each time he received the expected negative reaction to his behavior, he responded by escalating it.93 At no point did Mr. Manookian cease of his own volition; he did not stop until he was stopped, by suspension of his law license.
Mr. Manookian engaged in this long pattern of intimidating and degrading conduct in order to succeed in Shao by coercing opposing counsel into standing down to avoid personal humiliation and emotional distress for them or their families. A business model of sorts, based on fear. In re Sitton, 618 S.W.3d at 307 (describing lawyer’s pattern of misconduct as essentially
The length to which Mr. Manookian went to obtain detailed private information about opposing counsel also warrants comment. Mr. Manookian explained he used tracking applications imbedded into routine litigation email to give him detailed personal information about each person who opened the email, followed by a second service used by private investigators to obtain an even greater level of private information. Mr. Manookian’s matter-of-fact testimony almost made it sound as though using private-investigator-level intrusive tools on everyday litigation correspondence to secretly extract private information to weaponize against opposing counsel is normal business behavior for a lawyer. It is not.
Most important, victimizing the families of opposing counsel and causing well-founded concern for their well-being and safety is an especially grave offense and a profound dishonor as a lawyer. Lawyers in litigation may be expected to assume the risk of a certain amount of rough-and-tumble. Their families do not. In preying on the families of opposing counsel, Mr. Manookian crossed the Rubicon.94
The subversive impact of Mr. Manookian’s conduct on the justice system cannot be overstated. Were we to permit such conduct to go unchecked, lawyers would flee the profession rather than risk personal mortification or the welfare of their families. Our justice system depends on lawyers willing to participate as advocates within the bounds of our rules:
The lawyer appearing as an advocate before a tribunal presents, as persuasively as he can, the facts and the law of the case as seen from the standpoint of his client’s interest. It is essential that both the lawyer and the public understand clearly the nature of the role thus discharged. Such an understanding is required not only to appreciate the need for an adversary presentation of issues, but also in order to perceive truly the limits partisan advocacy must impose on itself if it is to remain wholesome and useful.
In a very real sense it may be said that the integrity of the adjudicative process itself depends upon the participation of the advocate.
Lon L. Fuller, The Forms and Limits of Adjudication, 92 Harv. L. Rev. 353, 382 (1978).95
Finally, the record in this case offers no encouragement that Mr. Manookian would benefit from suspension and change his ways upon reinstatement. Apart from the misconduct in Shao, the record indicates Mr. Manookian drew findings by many judges that he engaged in fraudulent, threatening or demeaning conduct, or conduct that endangered the public or abused the judicial process. After the petitions for
was based on a unanimous finding by the Court that Mr. Manookian constituted a threat of substantial harm to the public. Nothing in this record suggests that threat has abated.
The purpose of the attorney disciplinary process is to safeguard the administration of justice, protect the public from the misconduct or unfitness of members of the legal profession, and preserve the confidence of the public in the integrity and trustworthiness of lawyers in general. See ABA Standard 1.1. “Attorneys are trusted by the community with the care of their lives, liberty and property with no other security than personal honor and integrity.” Schoolfield v. Tenn. Bar Ass’n, 353 S.W.2d 401, 404 (Tenn. 1961).
“[A] license to practice law in this state is not a right, but a privilege.” Barry, 545 S.W.3d at 426 (citing Sneed, 301 S.W.3d at 618). “The license to practice law in this State is a continuing proclamation by the Supreme Court of the State of Tennessee . . . that the holder is fit to be entrusted with professional and judicial matters, and to aid in the administration of justice as an attorney and as an officer of the Court.”
This Court does not lightly impose on an attorney the sanction of disbarment. Here, it is clearly justified. We agree with the trial court that the suspension imposed by the hearing panel conflicts with its factual findings. Our role as guardians of the public trust requires us to impose disbarment.
We affirm the findings of the trial court as to the rule violations, reverse its decision as to the sanction, and order Mr. Manookian disbarred from the practice of law in Tennessee. Mr. Manookian’s disbarment is effective upon entry of this Court‘s disbarment order. See
As noted above, these incidents are the subject of separate disciplinary proceedings, and Mr. Manookian’s discipline in this case is based only on the misconduct found by the hearing panel in this case.
CONCLUSION
For the reasons stated above, we affirm the trial court as to the rule violations and reverse as to the sanction. Mr. Manookian is hereby disbarred from the practice of law in the State of Tennessee, effective upon entry of this Court’s order. See
________________________________________
HOLLY KIRBY, CHIEF JUSTICE
Notes
The respondent or petitioning attorney or the Board may appeal the judgment of a hearing panel by filing within sixty days of the date of entry of the hearing panel‘s judgment a Petition for Review in the circuit or chancery court of the county in which the office of the respondent or petitioning attorney was located at the time the charges were filed with the Board.
the rights of the party filing the Petition for Review have been prejudiced because the hearing panel‘s findings, inferences, conclusions or decisions are: (1) in violation of constitutional or statutory provisions; (2) in excess of the hearing panel‘s jurisdiction; (3) made upon unlawful procedure; (4) arbitrary or capricious or characterized by abuse of discretion or clearly unwarranted exercise of discretion; or (5) unsupported by evidence which is both substantial and material in the light of the entire record.
(c) A lawyer who has formerly represented a client in a matter or whose present or former firm has formerly represented a client in a matter shall not thereafter reveal information relating to the representation or use such information to the disadvantage of the former client unless (1) the former client gives informed consent, confirmed in writing, or (2) these Rules would permit or require the lawyer to do so with respect to a client, or (3) the information has become generally known.
Moreover, the speech at issue in Hunter was commercial speech that was “not inherently misleading.” Id. at 619. In contrast, in this matter, the hearing panel found that Mr. Manookian “mischaracterized Mr. Gideon‘s son and the underlying event” and that the purpose of Footnote 1 was “to embarrass Mr. Gideon and his son” to gain unfair tactical advantage in Shao.
(c) A lawyer who has formerly represented a client in a matter or whose present or former firm has formerly represented a client in a matter shall not thereafter reveal information relating to the representation or use such information to the disadvantage of the former client unless (1) the former client gives informed consent, confirmed in writing, or (2) these Rules would permit or require the lawyer to do so with respect to a client, or (3) the information has become generally known.
Paragraph 19 of the Supplemental Petition for Discipline states: “[B]y revealing confidential information to the disadvantage of his former client, Mr. Gideon‘s son, in his Response to Clarence Gideon‘s Motion for Sanctions, Mr. Manookian violated Rule of Professional Conduct 1.9(c).” Mr. Manookian denied his use of the information “actually disadvantaged his former client” and reiterated that he “did not realize at the time that an attorney could violate RPC 1.9 by further disclosing information that was already a matter of public record.”
At the disciplinary hearing, Mr. Manookian made an oral motion to amend his answer. The panel denied the oral motion but said it would allow him to present law or argument for further review. Mr. Manookian did not follow up.
ABA Formal Opinion 149.Unless information has become widely recognized by the public (for example by having achieved public notoriety), or within the former client‘s industry, profession, or trade, the fact that the information may have been discussed in open court, or may be available in court records, in public libraries, or in other public repositories does not, standing alone, mean that the information is generally known for Model Rule 1.9(c)(1) purposes. Information that is publicly available is not necessarily generally known. Certainly, if information is publicly available but requires specialized knowledge or expertise to locate, it is not generally known within the meaning of Model Rule 1.9(c)(1).
Preliminary to lengthier phone call conducted at the gratuitous request of Retired Davidson County Circuit Court Judge Steve North, wherein Ret. Judge North states and opines upon personal knowledge, having served on the bench with Judge Tom Brothers and being the brother of Phillip North, that: Judge Tom Brothers is “corrupt” and has been for some time, that Judge Tom Brothers’ “corruption” arises out of his financial needs; that Judge Tom Brothers’ “corruption” has long resulted, and continues to result, in preferable, “corrupt” treatment for certain Nashville-based companies, which benefit from consistent, “corrupt” favorable rulings in Judge Brothers’ courtroom, to the exclusion of justice; that such “corruption” has, and continues to, materially benefit, among others, C.J. Gideon and his firm, in his representation of certain “corrupt” clients; as well as lengthy disclosure and dissertation on Phillip North, all of which is material to the supposed grievances in Phillip North‘s “Motion for Third Round of Sanctions.”
The dissent offers a due process defense on behalf of Mr. Manookian, arguing the Court “dispense[s] with notice and an opportunity to be heard” on disbarment. Untrue. Throughout the disciplinary proceedings, Mr. Manookian has been on notice that he was subject to disbarment.
Even before Mr. Manookian’s hearing to the hearing panel, the Board’s brief took the position that disbarment was appropriate for his misconduct. The hearing panel found disbarment was the presumptive sanction. After Mr. Manookian appealed to the trial court, the Board asked the trial court to disbar him. Mr. Manookian’s briefs to the trial court acknowledged the Board was seeking to disbar him and argued vigorously against it. Mr. Manookian’s counsel told the trial court the Board was trying to disbar Mr. Manookian. The trial court would have granted the Board’s request to disbar Mr. Manookian had the Board filed its own separate petition for review.
Before this Court, both parties filed notices of appeal; the Board filed its notice first and was designated the appellant. Mr. Manookian, designated the appellee, did not hire counsel for the appeal to this Court; instead, he represented himself. In its initial brief, the Board asked this Court to disbar Mr. Manookian. After obtaining a substantial extension of time to respond, Mr. Manookian’s response brief acknowledged: “It is, of course, no secret that Disciplinary Counsel desires disbarment of the Appellee[.]” Still, he chose not to address the merits of why he should not be disbarred. The Board’s reply brief again asked for disbarment. Mr. Manookian’s reply said he would stand on his prior brief and did not address the merits of why he should not be disbarred.
Indeed, instead of responding to the Board’s argument that his conduct justifies disbarment, Mr. Manookian made the novel argument (ultimately unsuccessful) that the Board’s failure to file its own separate petition for review with the trial court precluded this Court from even considering disbarment. The entire point of this argument was to erect a technical procedural barrier to having this Court consider disbarment on its merits. Mr. Manookian knew that, absent success on his novel procedural argument, he was staring down the barrel of disbarment.
Though the dissent acknowledges this Court’s authority, it argues we should have created a new procedure special for this case by following the process set out in
In this appeal, we simply address the issues raised by both parties, including the Board’s request that we disbar Mr. Manookian. That is an everyday, unremarkable occurrence; hardly a “workaround.” Mr. Manookian even told this Court it was “no secret” the Board was asking for disbarment. The dissent acknowledges the Board “argued for disbarment before the hearing panel, the trial court, and this Court,” but contends due process required this Court to tell Mr. Manookian, “we will consider the issues raised by both parties.” It did not.
In addition to its unfounded due process defense, the dissent gratuitously swipes at the BPR and mischaracterizes its statements. It first criticizes the Board’s failure to file a separate petition for review with the trial court, though never before has a lawyer argued that the Board’s failure to file its own petition for review in the trial court limits this Court’s authority over appeals. The dissent then distorts the Board’s explanation of its reasoning, repeatedly referring to the Board as “satisfied” with suspension. As Board counsel explained, after the hearing panel recommended suspension instead of disbarment, “the Board has to parse its resources,” so the BPR elected not to appeal the suspension unless Mr. Manookian appealed. Once he did, the BPR continued to seek disbarment on appeal.
Importantly, the dissent omits crucial context for the Board’s decisions, namely, Mr. Manookian generated a heap of disciplinary complaints that required significant BPR resources. We mention above several serious disciplinary complaints against Mr. Manookian that warranted orders by this Court; these are not at issue in this appeal but still required BPR investigation and prosecution. But there were even more serious complaints against Mr. Manookian in the pipeline that demanded BPR action. In one, for example, the property manager for Mr. Manookian’s trashed and apparently abandoned rental home notified him she had stored his belongings left in the house and would return them to him. Aware that the manager was in a child custody dispute, Mr. Manookian responded by telling her in a recorded conversation:
You’re guilty of felony theft, and you’re gonna to go to f[]ing jail, and it’s gonna have a major effect on your custody issues . . . Do you know who you’re f[]ing with, A[]? . . . I’m gonna ruin your f[]ing life. Do you know who I am? . . . When we get off the phone, you need to Google my name . . . Do you know what I do to people who do way less than this to me? . . . Where’s your daughter? . . . I’m gonna find out where you are right now . . . . I’m gonna figure out who your dad is, what hospital he’s in. You know what I do for a living? I sue hospitals . . . . You’re never gonna see your kid again.
Testifying later against the property manager in her custody proceedings, Mr. Manookian swore under oath he never made any threats. These complaints are not part of the sanction underlying this appeal; however, they were mentioned in this record and provide a window into how many serious complaints against Mr. Manookian the BPR was juggling.
As the dissent is aware, by order of this Court, Mr. Manookian’s temporary suspension was coupled with a directive from the Court that the Board resolve the disciplinary complaints against Mr. Manookian expeditiously. This bears out the BPR’s choice on how best to allocate its limited resources and not initiate an appeal of the hearing panel’s recommendation of suspension in this case, in light of other disciplinary complaints seeking disbarment and this Court’s mandate to wind up the disciplinary proceedings expeditiously. This important context is not included by the dissent in its gratuitous criticism of the BPR.
In sum, the dissent is misguided. This “record is replete with numerous proceedings and forums in which [Mr. Manookian] was afforded a full opportunity to be heard.” In re Cook, 551 F.3d 542, 553 (6th Cir. 2009) (holding that the federal court was not permitted to review the adequacy of the state disbarment proceedings, but only whether alleged defects in the state proceedings tainted the federal disbarment proceedings). Mr. Manookian has known good and well throughout these proceedings he was facing disbarment by this Court. He received ample notice and opportunity to be heard.
Aggravating factors include:
(a) prior disciplinary offenses;
(b) dishonest or selfish motive;
(c) a pattern of misconduct;
(d) multiple offenses;
(e) bad faith obstruction of the disciplinary proceeding by intentionally failing to comply with rules or orders of the disciplinary agency;
(f) submission of false evidence, false statements, or other deceptive practices during the disciplinary process;
(g) refusal to acknowledge wrongful nature of conduct;
(h) vulnerability of victim;
(i) substantial experience in the practice of law;
(j) indifference to making restitution;
(k) illegal conduct, including that involving the use of controlled substances.
ABA Standard 9.22.
Mitigating factors include:
(a) absence of a prior disciplinary record;
(b) absence of a dishonest or selfish motive;
(c) personal or emotional problems;
(d) timely good faith effort to make restitution or to rectify consequences of misconduct;
(e) full and free disclosure to disciplinary board or cooperative attitude toward proceedings;
(f) inexperience in the practice of law;
(g) character or reputation;
(h) physical disability;
(i) mental disability or chemical dependency including alcoholism or drug abuse . . . . . . . .
(j) delay in disciplinary proceedings;
(k) imposition of other penalties or sanctions;
(l) remorse;
(m) remoteness of prior offenses.
ABA Standard 9.32.