# Choosing Justice Initiative v. Board of Professional Responsibility of the Supreme Court of Tennessee

> District Court, M.D. Tennessee · November 6, 2020

URL: https://www.frixlaw.com/law-library/cases/10436788

## Case

- **Court:** District Court, M.D. Tennessee
- **Decided:** November 6, 2020
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/10436788

## How later opinions describe it (automated extraction)

- holding that bar disciplinary proceedings are “judicial in nature,” implicate important state interests in the regulation and discipline of attorneys, and offer an adequate opportunity to raise constitutional challenges

## Opinion text

IN THE UNITED STATES DISTRICT COURT FOR THE
MIDDLE DISTRICT OF TENNESSEE
NASHVILLE DIVISION

CHOOSING JUSTICE INITIATIVE, )
and CAROL DAWN DEANER, )
)
Plaintiffs, ) NO. 3:20-cv-00745
)
v. ) JUDGE CAMPBELL
)
FLOYD FLIPPIN et al., )
)
Defendants. )

MEMORANDUM

Before the Court is Plaintiff’s Second Motion for a Preliminary Injunction (Doc. No. 25)
and Defendants’ Motion to Dismiss the Second Amended Complaint. (Doc. No. 31). Defendants
filed a response to the motion for preliminary injunction. (Doc. No. 30). Plaintiffs consolidated
the reply in support of the motion for preliminary injunction and response to the motion to dismiss.
(Doc. No. 36). Defendants filed a reply. (Doc. No. 36). Both motions are fully briefed.
I. BACKGROUND
Plaintiff Carol Dawn Deaner, a former public defender, founded the Choosing Justice
Initiative (“CJI”) in 2018. One of the goals of CJI is to “improve the quality of indigent defense
representation in Tennessee by changing how attorneys are appointed to represent poor people.”
(Am. Compl., Doc. No. 22 at ¶ 2). Plaintiffs claim that the current system in which judges appoint
defense counsel for indigent defendants makes it “nearly impossible” for defendants who have a
constitutionally ineffective court-appointed lawyer to obtain a new lawyer without outside help.
(Id. at 4). Plaintiffs seek to provide this outside help, in part, by speaking with defendants who are
dissatisfied with their court-appointed representation, identifying attorneys available to provide
“constitutionally adequate and effective representation,” and seeking to have the newly identified
attorneys appointed in place of the existing court-appointed counsel. (Id. at ¶¶ 3-6).
In September 2019, Plaintiffs were contacted by a criminal defendant who was dissatisfied
with his appointed representation. The defendant, whose cases were in Tennessee criminal court
before Judge Cheryl A. Blackburn, retained CJI to represent him pro bono. (Id. at ¶¶ 27, 34). CJI’s

representation was limited to assisting the defendant with a motion to substitute counsel.
(Id. at ¶ 34). Ms. Deaner filed two motions in the defendant’s criminal cases. (Id. at ¶ 35). The first
was a motion for leave to enter a limited notice of appearance. (Id.). The second was a motion for
appointment of substitute counsel. (Id.).
On November 13, 2019, Judge Blackburn held a hearing at which she denied Ms. Deaner’s
motion for leave to enter a limited notice of appearance and ordered her “not to talk to any criminal
defendant in this court unless you get permission from the attorney.”1 (Id. at ¶ 40, 44; see also,
Doc. No. 18-2 at PageID# 267-68). Judge Blackburn also issued a written opinion stating the basis
for her order and clarifying that Ms. Deaner was ordered not to “talk to any represented defendant

in this Court unless she obtains permission from their current counsel as required by [Rule of
Professional Conduct] 4.2, so as to not interfere with attorney-client relationship [sic].” (Doc. No.
18-2 at PageID # 225; see also Am. Compl., Doc. No. 22 at ¶ 44).
Judge Blackburn thereafter filed a referral against Ms. Deaner with the Tennessee Board
of Professional Responsibility of the Supreme Court of Tennessee (“Board”). (Doc. No. 22 at ¶

1 After Ms. Deaner filed the two motions, the defendant’s appointed attorney moved to withdraw,
claiming that his ability to effectively represent the defendant had been undermined by Ms. Deaner
discussing the quality of his representation with the defendant. (Doc. No. 18-2 at PageID# 242-43). Judge
Blackburn granted the motion to withdraw and appointed a new attorney to represent the defendant. (Id. at
PageID# 244-46).
47; Doc. No. 18-2). She sent the Board the filings and hearing transcripts related to Ms. Deaner’s
motions and directed attention to the written order that “summarizes [her] concerns.” (See J.
Blackburn Letter to the Board of Professional Responsibility (Nov. 25, 2019), Doc. No. 18-2 at
1). Among the “concerns” raised were that Ms. Deaner was without standing to file motions in the
criminal case, made “numerous disparaging allegations against court-appointed counsel’s

representation” in an open forum, distributed misleading information regarding the ability of
indigent defendants to choose court-appointed counsel, interfered with the trial court’s authority
to appoint counsel, and communicated with and filed a notice of appearance on behalf of a
represented party without authorization of his existing counsel implicating Tennessee Rule of
Professional Conduct 4.2, Tenn. Sup. Ct. R. 8, RPC 4.2.2 (Doc. No. 18-2 at PageID# 204-225).
On December 4, 2019, the Board’s chief disciplinary counsel notified Ms. Deaner of the
disciplinary complaint filed by Judge Blackburn. (Doc. No. 22 at ¶ 48). On December 17, 2019,
Ms. Deaner was notified that a second similar complaint had been filed by the defendant’s original
court-appointed attorney and another attorney. (Id. at ¶ 49). On January 9, 2020, Ms. Deaner

responded to the complaints, arguing, among other things, that she did not violate Rule 4.2 because
when she communicated with the defendant she was not representing another party in that matter.
(Id.).

2 Judge Blackburn explicitly declined to make any findings as to whether Ms. Deaner violated any
ethical obligations. (Doc. No. 18-2 at PageID# 205, 213, 225).

RPC 4.2 states: “In representing a client, a lawyer shall not communicate about the subject of representation
with a person the lawyer knows to be representing by another lawyer in the matter, unless the lawyer has
the consent of the other lawyer or is authorized to do so by law or a court order.” Tenn. Sup. Ct. R. 8, RPC
4.2.
On July 10, 2020, the Board of Professional Responsibility issued a notice of “diversion,”
which stated:
Prior to the filing of this disciplinary complaint, you established and operated
Choice Lawyer Project (hereinafter, “CLP”), a Tennessee public benefit
corporation. While acting on behalf of CLP, you communicated with a
represented criminal defendant without the permission of his counsel in
violation of RPC 4.2. You subsequently filed a pleading on behalf of the same
defendant even though his attorney was still counsel of record. As you were
not counsel for the defendant, you lacked standing to file the pleading and
thereby pursued a legal objective without any substantive basis in fact or law
in violation of RPC 3.1. In mitigation, your conduct caused no harm to the
defendant, their counsel, or to the proceedings. You also have no prior
discipline in twenty-four (24) years of practice.
(Doc. No. 18-4). The chief disciplinary counsel of the Board stated that the complaint against her
would be dismissed upon completion of three hours of ethics continuing legal education. (Id.). She
added, “This offer of diversion is in recognition of your lack of prior discipline within the past five
years and in hopes that resolution in this manner will cause you to avoid such violations in the
future.” (Id.).
On August 11, 2020, Ms. Deaner declined the Board’s offer of diversion. (Doc. No. 22 at
¶ 56). She argued that the conduct does not violate RPC 4.2 and that if RPC 4.2 is interpreted to
bar her conduct, it is unconstitutional as applied to her and any lawyer who engages in similar
conduct. (Id.). Ms. Deaner wrote that she hopes “the Board will conclude that my conduct did not
violate RPC 4.2 or 3.1, and that RPC 4.2 protects the right of every person in need of representation
– including represented indigent criminal defendants – to seek and obtain freely the advice of other
disinterested attorneys.” (Doc. No. 18-5).
Upon rejection of the offer of diversion, the matter was returned to the Board for further
proceedings under Tenn. Sup. Ct. R. 9. On September 1, 2020, Plaintiffs filed the instant action
against the Board and Judge Cheryl Blackburn seeking: (1) a declaratory judgment that Judge’s
Blackburn’s order that Deaner not communicate with represented parties unless she first “obtains
permission from their current counsel as required by RPC 4.2” is an unconstitutional prior restraint
on her speech; and enjoining the Board from “enforcing RPC 4.2 against Deaner or any other CJI
attorney if they communicate with represented parties in the future for purposes of representing
them pro bono.” (Doc. No. 1).

After Plaintiffs filed the instant action, at its quarterly meeting on September 11, 2020, the
Board adopted the following “clarification” for its position on Ms. Deaner’s disciplinary
complaint:
In light of the substance of Ms. Deaner’s lawsuit and the injunctive relief
sought, the Board hereby adopts this statement to clarify the basis for its
position that Ms. Deaner violated the Rules of Professional Conduct.
Contrary to the claims made in Ms. Deaner’s lawsuit, the Board did not
conclude that Ms. Deaner violated any ethical rules solely by speaking with
a prospective client who was dissatisfied with his current counsel for the
purpose of determining whether the undertake the representation. Rather, the
Board’s recommended diversion of Ms. Deaner’s disciplinary complaint
resulted from her subsequent conduct with the represented party and before
the tribunal. On this basis, to any extent that Ms. Deaner seeks to enjoin the
Board from prohibiting Ms. Deaner or her organization in speaking with
prospective clients solely to determine whether to undertake the
representation, such injunctive relief is unnecessary as the Board
acknowledges that such conduct is proper under RPC 4.2, Comment 4.
(Christopher Aff., Doc. No. 18-3 at ¶ 11).
On September 23, 2020, Plaintiffs filed an amended complaint substituting Floyd Flippin
and Sandy Garrett, Chair and Chief Disciplinary Counsel of the Board for the Board itself. (Doc.
No. 22). Plaintiffs then filed a motion for preliminary injunction seeking a court order forbidding
Flippin and Garrett from disciplining Ms. Deaner or any other employee of the Choosing Justice
Initiative for communicating with any represented criminal defendant for purpose of representing
that defendant pro bono. (Doc. No. 25).
Defendants argue the Court should abstain from review of the merits of this case under the
doctrine in Younger v. Harris, 401 U.S. 37 (1971), or dismiss the Amended Complaint for failure
to state a claim under Fed. R. Civ. P. 12(b)(6).
II. STANDARD OF REVIEW
In deciding a motion to dismiss under Federal Rule of Civil Procedure 12(b)(6), a court

must take all the factual allegations in the complaint as true. Ashcroft v. Iqbal, 556 U.S. 662 (2009).
To survive a motion to dismiss, a complaint must contain sufficient factual allegations, accepted
as true, to state a claim for relief that is plausible on its face. Id. A claim has facial plausibility
when the plaintiff pleads facts that allow the court to draw the reasonable inference that the
defendant is liable for the misconduct alleged. Id. In reviewing a motion to dismiss, the Court
construes the complaint in the light most favorable to the plaintiff, accepts its allegations as true,
and draws all reasonable inferences in favor of the plaintiff. Directv, Inc. v. Treesh, 487 F.3d 471,
476 (6th Cir. 2007).
In considering a Rule 12(b)(6) motion, the Court may consider the complaint and any

exhibits attached thereto, public records, items appearing in the record of the case and exhibits
attached to Defendant’s motion to dismiss so long as they are referred to in the Complaint and are
central to the claims. Bassett v. National Collegiate Athletic Assn., 528 F.3d 426, 430 (6th Cir.
2008); Tellabs, Inc. v. Makor Issues & Rights, Ltd., 551 U.S. 308, 322 (2007) (on a motion to
dismiss the Court may consider documents referenced in a plaintiff’s complaint that are central to
plaintiff’s claims, matters of which a court may take judicial notice, documents that are a matter
of public record, and letters that constitute decisions of a government agency). The Court has
considered the record of the disciplinary proceedings before the Supreme Court of Tennessee and
the record of proceedings before Judge Blackburn as referred to in the Complaint and as public
records.
III. ANALYSIS
A. The Younger v. Harris Abstention Doctrine Bars Involvement in Pending Attorney
Disciplinary Proceedings

“In Younger, the United States Supreme Court counseled federal courts to abstain from
enjoining certain pending state court criminal proceedings.” Danner v. Bd of Prof’l Responsibility
of the Tenn. Sup. Ct, 277 F. App’x 575, 577 (6th Cir. 2008). “This doctrine is borne out of a
‘proper respect for state functions, a recognition of the fact that the entire country is made up of a
Union of separate state governments, and a continuance of the belief that the National Government
will fare best if the States and their institutions are left free to perform their separate functions in
their separate ways.” Id. (quoting Younger, 401 U.S. at 44). The doctrine has been extended to
ongoing civil proceedings and ongoing state administrative proceedings. Id. (citing Huffman v.
Pursue, Ltd., 420 U.S. 592 (1975); Middlesex Cty Ethics Comm. v. Garden State Bar Ass’n, 457
U.S. 423 (1982)). Younger counsels that a federal district court should abstain when: “(1) the
underlying proceedings constitute an ongoing state judicial proceeding; (2) the proceedings
implicate important state interests; and (3) there is an adequate opportunity to raise constitutional
challenges in the course of the underlying proceeding.” Danner, 277 F. App’x at 578.
Plaintiffs argue that Younger abstention is inappropriate in this case because the pending
disciplinary complaint and associated “open investigation” does not qualify as an “ongoing

disciplinary proceeding.” Plaintiffs argue that because the Board has not filed any formal
disciplinary charges against Deaner and has not convened a hearing panel, there is no state
administrative proceeding to which the Court must defer. Plaintiffs argue that “formal disciplinary
proceedings” are not commenced until Disciplinary Counsel files a Petition for Discipline with the
Board. (Doc. No. 36 (citing Tenn. Sup. Ct. R. 9-15.2(a)). Plaintiffs further argue that while the
disciplinary complaint is in “investigatory status,” there is no forum in which she may argue her
case.
State bar disciplinary proceeding are routinely held to satisfy the Younger abstention
criteria. See Danner, 277 F. App’x at 578-79 (holding that bar disciplinary proceedings are

“judicial in nature,” implicate important state interests in the regulation and discipline of attorneys,
and offer an adequate opportunity to raise constitutional challenges); see also, Middlesex, 457 U.S.
at 425-27; Squire v. Coughlan, 469 F.3d 551 (6th Cir. 2006); Fieger v. Thomas, 74 F.3d 740 (6th
Cir. 1996); Berger v. Cuyahoga Bar Ass’n., 983 F.2d 718 (6th Cir. 1993).
The Court disagrees with Plaintiffs contention that only formal disciplinary proceedings
qualify as an “ongoing judicial proceeding” from which the Court must abstain. As stated above,
it is well-established that state bar disciplinary proceedings are “judicial proceedings” for purposes
of Younger abstention, and the Court is unaware of any requirement of a “formal disciplinary
complaint.” To the contrary, the Sixth Circuit has affirmed abstention under Younger when the

investigation had concluded, and the disciplinary complaint was still in draft form. See Squire, 469
F.3d at 555-56. Although not dispositive, in Squire, the court stated that disciplinary counsel’s
investigation of allegations of misconduct are an adjudicative function, noting that disciplinary
counsel’s appointment in Ohio is approved by the Ohio supreme court. Id. at 556.
In Tennessee, the chief disciplinary counsel is appointed by the Tennessee Supreme Court
and granted authority to “investigate all matters involving possible misconduct.” Tenn. Sup. Ct.
R. 9, §§ 7.1 and 7.3. The Court finds no reason to conclude that the investigation is not judicial in
nature and part of the disciplinary proceeding. See also, Mason v. Dept. Disciplinary Committee
of the Appellate Division of the Supreme Court of New York, First Judicial Department, 894 F.2d
512 (2d Cir. 1990) (abstaining under Younger when plaintiff sought to enjoin a bar disciplinary
investigation).
Moreover, the proceedings before the Board have progressed beyond investigation. After
the complaints were filed, Ms. Deaner responded, the chief disciplinary counsel offered diversion
of the complaints, and Ms. Deaner rejected the offer of diversion. That the complaints have been

returned to the investigatory stage did not end the disciplinary proceedings or cause them to begin
anew. See Tenn. Sup. Ct. R. 9, § 13.7; (see also, Doc. No. 18-5 at PageID# 278 (Deaner letter
rejecting diversion acknowledges the matter would be returned for further proceedings under Tenn.
Sup. Ct. R. 9)). The ongoing nature of the disciplinary complaint is even more evident where it
appears the Board has not conclusively determined which of Ms. Deaner’s actions violated
professional ethics rules. In fact, the possibility remains that the Board will, upon more careful
consideration of the Rules, decide to dismiss the complaint altogether.3
The Court, therefore, concludes that the disciplinary proceedings are both “judicial in
nature” and “ongoing” for purposes of Younger. The final criteria for the Court’s consideration is

whether Ms. Deaner will have an adequate opportunity to raise constitutional challenges in the
course of the ongoing proceeding. Danner, 277 F. App’x at 578.
Plaintiffs argue that because the matter has been returned to the investigative stage, Ms.
Deaner does not yet have the right to a hearing and “[u]nless formal disciplinary proceedings are

3 The Board determined that Ms. Deaner’s communication with a represented criminal defendant
without the permission of his counsel violated RPC 4.2. (See Doc. No. 18-4). The Board later stated that
speaking with a represented criminal defendant for purposes of determining whether to undertake
representation is proper under RPC 4.2 and that the Rules violations stemmed from unspecified “subsequent
conduct with the represented party and before the tribunal.” (Christopher Aff., Doc. No. 18-3 at ¶ 11). It
thus appears to the Court that the Board has not conclusively determined either the scope of RPC 4.2 or
that there was a sanctionable violation of the rule.
adopted or modified by the Board, there will be no hearing panel and no forum in which Plaintiffs
may vindicate their constitutional rights.” (Doc. No. 36 at 9-10).
Although the proceedings have not reached the point where Ms. Deaner is entitled to a
hearing, unless the complaints are dismissed, she will have the opportunity to raise constitutional
challenges to the application of RPC 4.2. See Danner, 277 F. App’x at 579-80; see also Tenn. Sup.

Ct. R. 9, § 33.1(b) (specifically providing that a court may reverse or modify a Board decision if
the hearing panel’s “findings, inferences, conclusions, or decisions” are in violation of the
Constitution).
Plaintiffs cite a series of cases that consider whether petitioners have Article III standing
to raise a pre-enforcement challenge to a statute or regulation. See Steffel v. Thompson, 415 U.S.
452 (1974); Susan B. Anthony List v. Driehaus, 573 U.S. 149, 165 (2014); Berry v. Schmitt, 688
F.3d 290 (6th Cir. 2012) (bar disciplinary proceeding was complete when plaintiff was issued a
non-appealable warning letter and because plaintiff intended to engage in substantially similar
conduct, the threat of prosecution was sufficiently concrete to confer standing); Kiser v. Reitz, 765

F.3d 601 (6th Cir. 2014) (plaintiff had standing to challenge Ohio Dental Association regulation
where he had been warned that his conduct violated the regulation and he intended to engage in
such conduct in the future). These cases are inapposite as they address Article III standing, not
Younger abstention. None of these cases involved ongoing enforcement proceedings at any level.
In fact, in Susan B. Anthony List, the federal district court initially abstained under Younger and
only proceeded to consider the case after the enforcement proceeding before the Ohio Election
Commission had been dismissed.4 See 573 U.S. at 155.

4 The district court then found that the plaintiff lacked standing under Article III, a ruling which was
ultimately overturned by the Supreme Court. See 573 U.S. at 168.
Plaintiffs also cite several cases in which the courts found the administrative proceedings
in questions did not qualify as “ongoing state judicial proceedings” for purposes of Younger
abstention. See Telco Commc’ns, Inc. v. Carbaugh, 885 F.2d 1225, 1229 (4th Cir. 1989); La
Debating & Literary Ass’n v. City of New Orleans, 42 F.3d 1483 (5th Cir. 1995); Guillemard-
Ginorio v. Contreras-Gomez, 585 F.3d 508 (1st Cir. 2009). None of these cases persuade the Court

that the proceedings before the Board in this case are not ongoing proceedings of a judicial nature.
Telco involved a challenge to a Virginia fundraising solicitation law while the plaintiff was
being investigated by the Virginia Office of Consumer Affairs. The Fourth Circuit affirmed the
district court’s determination that Younger abstention was not warranted when the administrative
agency had investigated the complaint but not filed formal charges in conformance with the state
Administrative Process Act. Id. at 1228. The determination that the administrative investigation
in Telco did not constitute an ongoing state proceeding that was judicial in nature has no
application to the Court’s consideration of the judicial nature of the bar disciplinary proceeding in
this case. Not only did the proceeding in Telco involve different procedural requirements, the

judicial nature of the investigatory stage of the bar disciplinary complaints in Tennessee is well
established. See Squire, 469 F.3d 556.
La. Debating & Literary Ass’n is even less applicable. The case involved a challenge to a
state non-discrimination law after an individual who was denied admission to several private clubs
filed complaints of discrimination with the New Orleans Human Relations Commission. 42 F.3d
at 1486. The Commission had given the plaintiffs notice of the complaints, but had not begun to
investigate. Id. at 1490. The district court held that the complaint and notice of the complaint did
not constitute an “ongoing state judicial proceeding,” a determination the Fifth Circuit found not
to constitute an abuse of discretion. Id. at 1490-91. Not only had the proceedings before the New
Orleans Human Relations Commission not progressed as far as those in this case, those
proceedings are entirely different in nature than the attorney disciplinary proceedings at issue here
and the judicial nature of the investigatory stage of the proceedings is not readily comparable to
those of other state administrative bodies.
Guillemard-Ginorio v. Contreras-Gomez, 585 F.3d 508 (1st Cir. 2009), which involved

claims by owners of insurance company against the insurance commissioner of Puerto Rico during
an ongoing misconduct investigation, but where formal charges had yet to be filed by the executive
agency, is inapplicable for the same reasons.
The Court finds that the attorney disciplinary proceedings against Ms. Deaner are ongoing
state judicial proceedings in which Ms. Deaner will have the opportunity to raise her constitutional
claims. Accordingly, the Court will abstain under Younger from considering the claims against
Floyd Flippin, Chair of the Board, and Sandy Garrett, Chief Disciplinary Counsel and the claims
against these Defendants will be DISMISSED WITHOUT PREJUDICE.
B. Prospective Enforcement of Rule 4.2
Plaintiffs seek an order enjoining Ms. Garrett and Mr. Flippin from acting on behalf of the

Board to enforce RPC 4.2 against Ms. Deaner or any other CJI attorney if they communicate with
represented parties in the future for purposes of representing them pro bono. (Doc. No. 22 at
PageID# 323-24). The Court notes that, as described in the complaint, Plaintiffs seek only to
enjoin enforcement of Rule 4.2 with regard to a narrowly defined course of conduct. The wide-
ranging activities undertaken or sought to be undertaken by Ms. Deaner and CJI is much broader
that the conduct for which they seek to preclude disciplinary enforcement. The Court limits its
review to the potential enforcement regarding this specific conduct.
Article III of the Constitution limits the jurisdiction of federal courts to cases and
controversies. U.S. Const., Art. III, § 2. “To establish Article III standing, a plaintiff must show
(1) an ‘injury in fact’, (2) a sufficient ‘causal connection between the injury and the conduct
complained of,’ and (3) a ‘likel[ihood]’ that the injury ‘will be redressed by a favorable decision.’”
Susan B. Anthony List, 573 U.S. at 158 (citing Lujan v. Defenders of Wildlife, 504 U.S. 555, 560-

61 (1992)). “An injury sufficient to satisfy Article III, must be ‘concrete and particularized’ and
‘actual or imminent, not conjectural, or hypothetical.’” Id. The Supreme Court has stated that pre-
enforcement review is permitted under circumstances “that render the threatened enforcement
sufficiently imminent.” Id. at 159.
Under the circumstances presented here, Plaintiffs have not established that they face an
imminent threat of enforcement of Rule 4.2 for potential future communications with represented
criminal defendants for purposes of representing them pro bono. The Board has stated that it does
not interpret Rule 4.2 to prohibit such communications. While the Board’s view of the entirety of
Ms. Deaner’s conduct – which was not limited to communications with a represented defendant to

purposes of decided whether to undertake representation – has yet to be determined, there is no
indication that Ms. Deaner or anyone else face potential disciplinary action solely based on this
category of communications with represented parties. Future enforcement of Rule 4.2 against any
attorney who communicates with represented parties in the future for purposes of representing
them pro bono is speculative at best. Nothing in the Board’s statement or conduct portends a
credible threat of enforcement.
This case is distinguishable from those cited by Plaintiffs. In each of those cases the
plaintiffs had been warned not to engage in specific conduct and they intended to continue to
engage in such conduct. See Kiser v. Reitz, 765 F.3d 601, 608 (6th Cir. 2014) (dentist who was
warned that he could not practice general dentistry if he advertised a specialty faced a credible
threat of enforcement); Berry v. Schmitt, 688 F.3d 290 (6th Cir. 2012) (attorney who was
disciplined for circulating a letter critical of the state legislative ethics commission and intended
to further disseminate copies the letter stated a credible threat of future enforcement). Here,
Plaintiffs seek to enjoin enforcement regarding conduct the Board has specifically stated it does

not view as a violation.
Accordingly, the claim against Mr. Flippin and Ms. Garrett, to the extent that it seeks to
enjoin future enforcement of the Rule of Professional Conduct, will be DISMISSED WITHOUT
PREJUDICE.
C. Judge Blackburn’s Order

Plaintiffs seek a declaratory judgement that Judge Blackburn’s order that Ms. Deaner not
communicate with represented parties without first obtaining permission from their existing
counsel is an unconstitutional prior restraint on her speech. Plaintiffs claim that since Judge
Blackburn issued the order on November 13, 2019, they have received two inquiries from people
whose cases are pending in Judge Blackburn’s court who are dissatisfied with their appointed
counsel. (Doc. No. 22 at ¶ 61). Plaintiffs state that they have not responded to these people or
communicated with anyone who is currently represented by appointed counsel out of concern for
possible contempt sanctions and potential disciplinary action by the Board. (Id. at ¶¶ 62-63).
The Court has considerable concerns regarding the justiciability of the claim for
declaratory judgment invalidating Judge Blackburn’s order. Not only are the lower federal courts
generally precluded from reviewing state court orders, this particular order involves Judge
Blackburn’s interpretation of Rule 4.2, which vis-à-vis Ms. Deaner’s actions, is now before the
Board of Professional Responsibility.
The Court will reserve ruling on the motion to dismiss the claim regarding the
constitutionality of Judge Blackburn’s order and will require additional briefing from the parties
regarding justiciability of the claim.
IV. CONCLUSION
For the reasons stated, Defendants’ Motion to Dismiss (Doc. No. 31) is GRANTED, in
part. Plaintiff’s claim against Floyd S. Flippin and Sandy Garrett is DISMISSED WITHOUT
PREJUDICE. Because the Motion for Preliminary Injunction (Doc. No. 25) involves only the
claim against Mr. Flippin and Ms. Garrett, which has been dismissed, the Motion is DENIED. The
Court reserves ruling on the motion to dismiss the claim against Judge Blackburn. As stated above,
the parties will file additional briefing on the issue of justiciability of this claim.
An appropriate Order will enter.

WILLIAM L. Cn Lf
UNITED STATES DISTRICT JUDGE

15

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10436788. Public record. Not legal advice.