Sunday, February 18, 2024

Crossing The Rubicon: Disbarment In Tennessee

In a 79-page opinion, the Tennessee Supreme Court disbarred an attorney

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 trial court had recommended a two-year 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.

Respondent

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. 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.

He was involved in matters where opposing counsel had died suddenly

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.

The judge expressed concern about the conduct of Respondent and his co-counsel

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.

Mr. Gideon was substituted as opposing counsel in another matter and expressed concern about discovery responses.

Two days later, Respondent emailed

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.

The email referenced an incident that had taken place when Respondent was employed by Gideon

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: “Don’t be so vigorous in defending these people against their claims.

Respondent had represented Gideon's son as the victim in an internet "catfishing" scheme

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.

Gideon filed a bar complaint and sought sanctions in the litigation.

[Respondent] 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.

The sanctions hearing

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.

There were issues in another matter involving a case inherited from the deceased attorney that led to sanctions and an appeal

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.

An interim suspension was imposed and the matters were heard by a hearing panel which opined

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.

Both sides appealed the proposed two-year suspension.

The court here rejected Respondent's claim of First Amendment protection

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).

The court sustained the findings of Rule violations.

Sanction

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 cultivating “a business model as a ‘liar for hire’”) (quoting Matter of Edson, 530 A.2d 1246, 1249 (N.J. 1987)).

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...

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.

A dissent by Justice Lee

While this Court has inherent jurisdiction over attorney disciplinary matters, attorneys must be afforded fair notice and an opportunity to be heard. For the first time, this Court has increased an attorney’s discipline through the exercise of the Court’s inherent jurisdiction outside of the process outlined in Rule 9 by disbarring Brian Philip Manookian without giving fair notice of its intent. I dissent from the Court’s decision to disbar Mr. Manookian and would affirm the hearing panel’s finding of a twenty-four-month suspension. Neither the hearing panel nor the trial court erred.

The dissenting justice "declined to debate" the ten-paragraph footnote of the majority opinion responding to her dissent

There is no dispute that Mr. Manookian violated disciplinary rules and should be sanctioned. There is simply a difference of opinion as to whether the Court should have given Mr. Manookian notice of its intent to increase his sanction through the exercise of the Court’s inherent jurisdiction outside of the procedure of Rule 9. By disagreeing with a legal argument made by the Board, this dissent does not “gratuitously swipe[]” at the Board. This Court should treat the Board the same as any other party—no better, no worse.

In sum, no matter how offensive the Court deems Mr. Manookian’s conduct, the Court in its haste to disbar Mr. Manookian should rule in a respectful, unbiased, and even-handed manner and not dispense with notice and an opportunity to be heard.

A case summary is posted on the court's web page, which noted the procedural issue identified by the dissent

The hearing panel found Mr. Manookian violated multiple ethics rules and determined its guidelines showed he should be disbarred. But, without giving a reason, the panel recommended a two-year suspension instead of disbarment. 

Mr. Manookian appealed to the chancery court, where the Board again asked for disbarment. The chancery court agreed Mr. Manookian should be disbarred, but it affirmed the suspension because of procedural rules that required the Board to file a separate appeal.  

(Mike Frisch)

https://lawprofessors.typepad.com/legal_profession/2024/02/in-a-79-page-opinion-the-tennessee-supreme-court-disbarred-an-attorney-in-this-lawyer-disciplinary-case-the-lawyers-con.html

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