SAN DIEGO–(BUSINESS WIRE)–#DueProcess–The Tennessee Board of Professional Responsibility dissolved a
7-months-long “temporary” suspension it imposed on prominent Nashville
medical malpractice lawyer Brian P. Manookian just weeks after he filed
a federal complaint challenging the suspension as an
unconstitutional assault on due process and freedom of speech as well as
a federal antitrust violation.
Manookian sued the individual members of the board—lawyers in private
practice—alleging antitrust and constitutional violations April 29,
2019. The board suspended him in September based on an email that he
sent to another lawyer. The email included personal details that the
board “took to be threatening.”
But the board admitted that its accusation would not form a “true
threat” of violence—the only possible exception to First Amendment
protection of a lawyer’s out-of-court speech. Such speech limits that do
not meet this standard cannot be restricted or punished absent (1) a
compelling governmental interest and (2) a narrowly-tailored restriction
to achieve that interest.
The complaint alleges other circumstances showing the suspension’s
impropriety. For example, the emergency suspension was filed one day
after Manookian had sued a well-connected state court judge for
defamation—conduct which is, of course, protected by the First
Amendment’s petition clause.
The suspension was also suspect because the then-chair of the board,
Jimmie Miller, and the current chair of the board, Floyd Flippin, are
medical malpractice defense lawyers. The complaint alleges Flippin
directly benefits from Manookian’s suspension because Manookian was
forced to withdraw from active cases he was litigating against Flippin
as opposing counsel.
Before the lawsuit, the board had denied two petitions filed by
Manookian to dissolve the suspension, claiming that Manookian has the
burden to show “good cause” to dissolve the suspension. One of the
denials came after Manookian underwent a board-demanded fitness-for-duty
evaluation through the Tennessee Lawyers Assistance Program. TLAP
cleared Manookian and found that he does not pose a threat to the
public. Nevertheless, the board declared that Manookian could only show
“good cause” if he admitted to the accusations and agreed to undergo
treatment.
Based on these facts, the complaint alleges several constitutional
violations, including violations of the free speech and petition clauses
of the First Amendment, the due process clause of the Fourteenth
Amendment, and the equal protection clause of the Fourteenth Amendment.
The complaint also pleads an
antitrust claim under Section 1 of the Sherman Act for conspiracy to
restrain trade.
Since the lawyers on the board are active market participants, any
agreement they reach that restrains competition—such as excluding
competitors from the market—could violate the antitrust laws unless they
can show state
action immunity applies. To qualify, the defendants must meet a
strict burden to show they acted pursuant to a clearly articulated state
policy to displace competition and that they were actively
supervised by the state itself. The complaint alleges the Tennessee
Supreme Court’s minimal involvement could not satisfy that standard.
For the merits of the antitrust claim, the board lawyers are competitors
who agreed and ratified the exclusion of a direct competitor from the
market. The complaint explains that excluding Manookian from the market,
unlike most professional suspensions, had an appreciable anticompetitive
effect and caused antitrust
injury. Manookian is one of the state’s top medical malpractice
plaintiffs’ lawyers among a narrow field. There are also unusually high
barriers to entry and substantial capital requirements for that market.
Within a week of Manookian’s federal complaint, the board began
proceedings to dissolve the suspension that had been in place for about
seven months without the board filing of any formal disciplinary charges
for the conduct the board had alleged warranted an emergency temporary
suspension. An order dissolving the suspension was filed May 17.
The complaint seeks a court order declaring the temporary suspension
rules and the board members’ conduct unconstitutional and unlawful, an
injunction, compensatory and punitive damages, costs and fees. The
defendant board members are expected to file a response to the complaint
by June 11.
The case is Manookian
v. Flippin et al., Case No. 19-cv-00350 (M.D. Tenn).
Manookian is represented by Jarod
Bona and Aaron
Gott of Bona
Law PC, an
antitrust boutique firm with offices in San Diego and New York, and Daniel
Horwitz, a constitutional lawyer in Nashville.
Contacts
Aaron Gott
+1 858 964 4589
[email protected]
businessjustice.com
