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Bona Law Challenges Lawyer’s State Bar Suspension under Antitrust Law and Constitution

SAN DIEGO--(BUSINESS WIRE)--

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.

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