Brian Philip Manookian v. Board of Professional Responsibility of the Supreme Court of Tennessee

02/16/2024

IN THE SUPREME COURT OF TENNESSEE

AT NASHVILLE

Assigned on Briefs October 21, 2022

BRIAN PHILIP MANOOKIAN v. BOARD OF PROFESSIONAL

RESPONSIBILITY OF THE SUPREME COURT OF TENNESSEE

Direct Appeal from the Chancery Court for Davidson County

No. 20-0833-I William B. Acree, Senior Judge

___________________________________

No. M2022-00075-SC-R3-BP

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.

Tenn. Sup. Ct. R. 9, § 33.1(d); Judgment of the Chancery Court Affirmed in Part,

Reversed in Part; Decision of the Hearing Panel Affirmed in Part, Reversed in Part

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 is based primarily on exhibits and testimony in the proceedings

before the hearing panel.

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.

1

Mr. Gideon was licensed in 1978.

-2-

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

2

See Shao ex rel. Shao v. HCA Health Servs. of Tenn., Inc., No. M2018-02040-COA-R3-CV, 2019

WL 4418363, at *1 (Tenn. Ct. App. Sept. 16, 2019). These facts are included for context.

3

Mr. North, licensed in 1975, regularly defended medical malpractice cases.

-3-

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.

-4-

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

their claims.”

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

4

With little explanation, Mr. Manookian’s response also attached law firm emails Mr. Gideon had

sent years earlier, while Mr. Manookian was still employed with the firm, that included unflattering remarks

about other lawyers. Mr. Manookian added that he had kept more such emails and would be “happy to file”

them.

-5-

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 amiss. At the time, Mr. Manookian was still employed by Mr. Gideon’s

firm, and he had often described himself as very knowledgeable about the internet. Mr.

Gideon solicited Mr. Manookian’s help for his son.

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.

5

As one author explains:

Popularly known as “catfishing,” the deceptive practice begins when a con artist, fraudster,

or prankster creates one or dozens of fake profiles online with stolen pictures and

manufactured personas in order to attract the attention of unsuspecting users. The photos

are almost always of a very attractive male or female, and the profiles depict a fun-loving,

if sometimes introspective and sensitive individual. With this bait set, the scammer trolls

the Internet for an unsuspecting catch.

Brent Dean, The Anatomy of a Catfish, in Head to Head, 15 Quinlan, Comput. Crime and Tech. in L. Enf’t

NL 3, no. 9, Sept. 2019.

-6-

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 advantage over opposing counsel in the pending

Shao litigation.8

6

Mr. Manookian’s response to the motion for sanctions included, as an attachment, an email that

appears to be from an employee at Mr. Manookian’s firm, indicating Mr. Gideon’s letter was received in

the mail at the office on “8/21/17.” The employee did not give an affidavit or testify.

7

Apparently, later on the same day as the hearing, Mr. Manookian filed a motion for Judge Brothers

to disclose/comply with the Tennessee Code of Judicial Conduct, to initiate his effort to disqualify Judge

Brothers from the Shao case or get him to recuse himself.

8

Judge Brothers’s order said:

While Mr. Manookian claims otherwise, the Court finds the subject email can only

be construed as a threat against the livelihood of Mr. Gideon’s child. This Court is

-7-

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.

unpersuaded by Mr. Manookian’s purported explanation that the email was somehow

meant to express his desire to assist Mr. Gideon’s child with employment. At a minimum

this communication was a thinly veiled threat to embarrass Mr. Gideon, his child, and his

family. It can also be viewed as a blatant act of attempted intimidation meant to secure

some tactical advantage over opposing counsel.

The email’s reference to alleged previous personal issues of Mr. Gideon’s child

and Mr. Manookian’s alleged influence with his friends at the child’s employer combined

with the conclusion that “. . . it is good for us to keep apprised of each other’s lives and the

things we can do to influence them” clearly carries a threatening tone. Mr. Manookian has

produced an affidavit from an employee at the child’s employer who states that she

inquired about Mr. Gideon’s child on August 18, 2017. However, this inquiry does not

explain or absolve the threat[en]ing email Mr. Manookian sent. Threatening another

attorney’s child under any circumstance is unprofessional, unethical, and appalling.

9

The order stated:

This Court finds that there was no reason for Mr. Manookian to identify Mr.

Gideon’s children in his Response and his goal in doing so was to embarrass, annoy and

oppress Mr. Gideon. Since such conduct occurred before this Court in formal filings, it is

sanctionable.

Revealing the name of Mr. Gideon’s child and employer in the response filed in

this matter is unconscionable. There is simply no reason to have done so other than an

-8-

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 [the Shao] case,” Mr. North thought,

“he would do it against me.”

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,

attempt to publish this information to the general public and thereby expose the child and

Mr. Gideon’s family to possible embarrassment.

Equally egregious is the identification of and unflattering reference to Mr.

Gideon’s other child in a footnote to the publicly filed response. Likewise there is no

fathomable purpose in attaching derogatory comments, made almost seven years ago by

Mr. Gideon, about another lawyer.

-9-

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 the highest degree of integrity and honesty with the

courts.11

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”

10

This included Eric Miles, Mr. North’s partner; Afsoon Hagh, Mr. Manookian’s wife and co-

counsel for Plaintiff Shao; C.J. Gideon, Blake Carter, and Lee Nutini, co-counsel for HCA; Mark

Hammervold, co-counsel for Plaintiff Shao; and Linda DeBaun, Mr. Gideon’s paralegal; as well as Marsh

Nichols, the trial court’s special master.

11

Mr. North found particularly disturbing Mr. Manookian’s choice to include a closing “have a

wonderful and relaxing Easter weekend” at the end of a disparaging email sent to his colleagues. He likened

it to the “gangster” comparison Judge Brothers made in the hearing on Mr. Gideon’s motion for sanctions

against Mr. Manookian.

- 10 -

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.

12

Mr. North testified that Mr. Manookian’s separate declaratory judgment action, placing the Good

Friday email in the body of the complaint, had no purpose except to make the offensive language public

and distract Mr. North from preparing Shao for trial.

- 11 -

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 misconduct, against judges who imposed consequences on him for

misconduct.13

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

13

In support of the argument that sanctions more severe than monetary fines were needed, the

motion recited instances in which various judges had made findings of misconduct by Mr. Manookian, with

no abatement of the misconduct. The motion recited eight instances in unrelated matters: (1) a 2015

criminal guilty plea to mail fraud by Mr. Manookian, accepted by Judge Todd Campbell; (2) injunctive

relief ordered by Chancellor Russell Perkins against Mr. Manookian for threatening and demeaning

conduct; (3) continuation of the same injunction after the case was transferred to Chancellor Claudia

Bonnyman with a finding that Mr. Manookian had engaged in conduct that endangered the public; (4)

imposition of sanctions against Mr. Manookian by a federal magistrate judge in the eastern district of Texas

based on a finding that he engaged in fraud and an abuse of the judicial process; (5) affirmation of the

magistrate’s findings and sanctions by the federal district judge in the eastern district of Texas; (6) findings

by Judge Phil Smith in Mr. Manookian’s divorce proceedings of physical and emotional abuse; (7)

revocation by a state court in Texas of Mr. Manookian’s permission to practice in that court pro hac vice,

after review and a hearing on the findings by the Texas federal district court; and (8) findings by Judge

Michael Binkley that Mr. Manookian made false statements and was in contempt by violating the court’s

protective order. The motion also recited Judge Brothers’s prior findings about Mr. Manookian in Shao

before the case was re-assigned.

Mr. North’s motion for a third round of sanctions also recited motions for recusal based on

accusations of bias or misconduct filed by Mr. Manookian or his counsel against Chancellor Russell

Perkins, Judge Michael Binkley, and Judge Brothers, all judges who had imposed consequences on Mr.

Manookian for his misconduct.

14

By the time Mr. North filed his motion for a third round of sanctions, Judge Brothers had

voluntarily stepped off the Shao case and asked that it be reassigned to a different trial judge. Senior Judge

Don Ash was designated to hear the case. Shao, 2019 WL 4418363, at *2 n.5.

- 12 -

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 “disclosed” an email from an

attorney in Mr. North’s office referencing the flap over service of the motion for a third

round of sanctions and saying she could not “explain” the alleged postmark discrepancy.

Second, even though Judge Brothers had been off the Shao case since April, Mr.

Manookian’s August 3, 2018 letter “disclosed” an “Unsolicited Voicemail” from Mr.

North’s brother, Retired Davidson County Circuit Court Judge Steve North, “volunteering

‘information that might be of some help to [Mr. Manookian] . . . with regard to [Mr.

Manookian’s] controversy with Judge Brothers’ in the Shao Matter.”

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

15

Mr. North maintained that Mr. Manookian used a postmarked envelope for another item his office

mailed to Mr. Manookian, to make it look as though Mr. North had falsified the certificate for service on

the motion for sanctions.

- 13 -

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].

- 14 -

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.”

16

Mr. North was concerned that Mr. Manookian had hacked into his home and work computers.

Apprehensive about his wife’s safety at home by herself, Mr. North had his family’s home security system

reviewed and updated, and he alerted neighboring family members. He took Mr. Manookian’s photo to the

security guard at his building and told him to call him so he could call police if Mr. Manookian showed up.

Mr. North increased the frequency of his handgun training. He noted the make, model, and color of Mr.

Manookian’s car and looked for it every time he approached the entrance to his property.

- 15 -

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,

recalling Judge Brothers’s past orders admonishing and sanctioning Mr. Manookian.18 As

to Mr. Manookian’s March 30 email, Judge Ash found no dispute but that Judge Gayden’s

supposed experience and opinions about Mr. North were “never discussed at the [case

management] meeting in mid-March,” and Mr. Manookian’s statements to that effect

insulted, disparaged, demeaned or embarrassed Mr. North. The order noted that, at the

hearing, “Mr. Manookian could give no legitimate reason” for making the statements in

the email. It said that, at the hearing, Mr. Manookian admitted he sent the June 22 email

“because he was angry” about materials Mr. North attached to the motion for a third round

of 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

17

The motion referenced and incorporated the list and exhibits for the motion for a third round of

sanctions, detailing multiple prior instances in which trial judges had made findings of misconduct by Mr.

Manookian and imposed sanctions.

18

Judge Ash’s order first quoted from Judge Brothers’s April 24, 2017 order, which expressed

“profound disappointment” in the conduct of Mr. Manookian and Mr. Cummings in the wake of Mr.

Geracioti’s death, reprimanded them, and admonished them to “avoid such reprehensible behavior in the

future.” Judge Ash then reviewed Judge Brothers’s September 28, 2017 order, in which he condemned Mr.

Manookian’s conduct toward Mr. Gideon, imposed monetary sanctions, and 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.” Judge Ash quoted the passage in Judge Brothers’s order

in which he expressed hope that Mr. Manookian would “learn” from the trial court’s admonition and “in

the future . . . conduct himself in a manner that is worth[y] of his profession.”

19

Judge Ash’s order observed: “Sadly, Mr. Manookian has traveled down a path where he has

chosen to continue verbal attacks on opposing counsel rather than to follow a judge’s explicit orders. He

has been reprimanded by a court, instructed to stop this unprofessional behavior, and forced to pay attorney

- 16 -

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 fees. It again suspended Mr. Manookian from practicing law in the

Davidson County Circuit Courts for 180 days, to run consecutively to the previous sixty-

day suspension.

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

fees for his actions; yet, he continues this vendetta.” It added: “His actions not only damage his reputation

as a professional, but also blemish the legal profession and the integrity of the Court.”

20

On September 21, 2018, the day after Judge Ash’s order, the Tennessee Supreme Court entered

an order temporarily suspending Mr. Manookian from the practice of law in Tennessee, pursuant to

Tennessee Supreme Court Rule 9, section 12.3, based on the Court’s finding that he posed a threat of

substantial harm to the public. See In re Brian Phillip Manookian, BPR #026455, No. M2018-01711-SC-

BAR-BP (Tenn. Sept. 21, 2018). This is discussed in more detail below.

- 17 -

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 Tennessee Supreme Court Rule

21

BPR’s original petition for discipline was voluntarily dismissed without prejudice.

22

The temporary suspension from September 21, 2018, to May 17, 2019 was due in part to Mr.

Manookian’s conduct in matters unrelated to Shao. It was based on: (1) a July 2018 Williamson County

Circuit Court order finding Mr. Manookian in civil contempt of court for engaging in “a knowing, willful,

and intentional course of conduct to deceive and defraud [the court]” and “for knowingly, willfully, and

intentionally violating [an order of the court] on seven separate occasions”; (2) the Davidson County Circuit

Court order reprimanding Mr. Manookian and co-counsel in Shao for filing the motion for default judgment

on the day opposing counsel died unexpectedly; (3) Mr. Manookian’s August 19, 2017 email in Shao to

Mr. Gideon about his daughter and his August 4, 2018 email to Mr. North referencing his personal details;

(4) an August 2017 United States District Court for the Eastern District of Texas order stating that Mr.

Manookian deliberately concealed information from the court in 2016, which “constitute[d] fraud and abuse

- 18 -

9, section 12.3, the order was based on the Court’s finding that he posed a substantial threat

of harm to the public.23

Almost immediately, Mr. Manookian filed a petition to dissolve the suspension. See

Tenn. Sup. Ct. R. 9, § 12.3(d). A hearing panel considered testimony on Mr. Manookian’s

petition, found no good cause to dissolve the suspension, and recommended denial of the

petition.24 On November 21, 2018, this Court entered an order denying Mr. Manookian’s

of the judicial process”; (5) an August 2016 Davidson County Chancery Court order granting a permanent

injunction against Mr. Manookian from entering an individual’s residence or the premises of Nashville

Armory, LLC because Mr. Manookian’s “erratic behavior” in 2013 caused the individual to fear for his

safety; (6) a July 2014 Davidson County Circuit Court order in Mr. Manookian’s divorce case finding Mr.

Manookian “physically assaulted” his ex-wife “on numerous occasions”; and (7) a Davidson County Circuit

Court order enjoining Mr. Manookian from “contacting, calling, communicating, harassing, threatening,

abusing, harming, coming into contact, interfering, or coming into proximity of” another individual who

had filed a complaint, a motion for restraining order, and an amended complaint alleging that “Mr.

Manookian attacked him violently on two occasions.” These matters are referenced for context.

23

Tennessee Supreme Court Rule 9, section 12.3(a) states:

On petition of Disciplinary Counsel and supported by an affidavit or declaration under

penalty of perjury demonstrating facts personally known to affiant showing that an attorney

. . . poses a threat of substantial harm to the public, the Court may issue an order with such

notice as the Court may prescribe imposing temporary conditions of probation on said

attorney or temporarily suspending said attorney, or both.

Tenn. Sup. Ct. R. 9, § 12.3(a).

24

After hearing testimony, including from Mr. Manookian, the hearing panel rejected Mr.

Manookian’s position that his conduct did not constitute a substantial threat of harm to the public. It noted

that the boundaries of professional conduct are “critical for the proper functioning of the judicial system”

and that Mr. Manookian had had those boundaries pointed out to him “by multiple trial judges” in methods

ranging from constructive criticism to monetary sanctions, “but none have deterred Mr. Manookian’s

behavior.” It specifically rejected Mr. Manookian’s claim of innocuous intentions:

The argument that Mr. Manookian’s emails to Mr. Gideon and to Mr. North were not

designed to be threatening to the families of the recipients nor intimidating to the

recipients themselves is simply not believable. There is no other reason for the

defamatory, insulting and creepily personal information about the attorneys’ family

members to be included in professional communication between colleagues. An attorney

often accepts a degree of hostility in contentious litigation but he or she should not have

to accept that spouses or children will be subject to insult and threat.

Mr. Manookian has not acknowledged that there is anything wrong with his conduct.

Consequently, he has taken no steps to assure the panel that the conduct will not be

repeated. He did not indicate that he intends to take any steps to address what he considers

to be minimally inappropriate behavior—admittedly rude and insulting but, according to

- 19 -

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.

In April 2019, Mr. Manookian filed a third petition for dissolution of the suspension.

The same hearing panel considered this petition, but this time it recommended dissolution,

subject to several conditions. On May 17, 2019, based on the recommendations of the

hearing panel, this Court entered an order granting the third petition. The dissolution of

the suspension was subject to Mr. Manookian’s ongoing compliance with the conditions

recommended by the hearing panel.

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

Mr. Manookian, not threatening to the public or to the judicial system which serves the

public.

The incidents that were the subject of the hearing on Mr. Manookian’s temporary suspension are the subject

of additional disciplinary proceedings against him. They are not the basis for the disciplinary violations at

issue in this appeal, but provide appropriate context in this case. “[T]his Court may take judicial notice of

the records of the courts of this state.” Tennesseean v. Metro. Gov’t of Nashville, 485 S.W.3d 857, 862 n.5

(Tenn. 2016).

25

As discussed below at note 28, the second supplemental petition included other complaints as

well.

- 20 -

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 same day this order was entered, Mr. Manookian filed a petition to dissolve the

reinstated suspension. A few days later, on October 15, 2019, Mr. Manookian filed a

supplemental petition for dissolution.

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

26

The incidents that were the subject of the hearing on BPR’s petition to reinstate the temporary

suspension are the subject of additional disciplinary proceedings against Mr. Manookian and are not the

basis for the disciplinary violations at issue in this appeal.

- 21 -

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: Rule 1.9(c) (Duties to Former Clients),28 Rule 4.4(a)(1)

(Respect for the Rights of Third Persons),29 Rule 8.2(a)(1) (Judicial and Legal Officials),30

and Rules 8.4(a) and (d) (Misconduct).31

27

The order added: “Both Mr. Manookian and the Board shall proceed with all due speed toward

ultimate resolution of the petition for discipline currently pending before the Board.” Originally, the second

supplemental petition for discipline also included allegations of conduct in two cases unrelated to the Shao

case. The first involved a complaint submitted by a Texas business owner, David Blank, through his

attorney, alleging misconduct by Mr. Manookian related to Diamond Consortium, Inc., d/b/a The Diamond

Doctor, and David Blank v. Brian Manookian, Cummings Manookian, PLC, and Brian Cummings, No.

4:16CV94-ALM, a lawsuit filed in the United States District Court for the Eastern District of Texas. The

second involved Mr. Manookian’s conduct in a Williamson County Circuit Court lawsuit, David Chase v.

Chris Stewart, et al., No. 2015-200. In December 2019, after the Court entered its order directing both

parties to “proceed with all due speed” toward resolution, the BPR voluntarily dismissed the supplemental

petition for discipline based on the Texas litigation. In February 2020, the hearing panel entered an order

continuing indefinitely the matters related to Chase v. Stewart because the case was pending in the

Tennessee Court of Appeals. The disciplinary hearing on the complaints related to the Shao case went

forward.

28

A lawyer who 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.

Tenn. Sup. Ct. R. 8, RPC 1.9(c).

29

“In representing a client, a lawyer shall not . . . use means that have no substantial purpose other

than to embarrass, delay, or burden a third person . . . .” Tenn. Sup. Ct. R. 8, RPC 4.4(a)(1).

30

“A lawyer shall not make a statement that the lawyer knows to be false or that is made with

reckless disregard as to its truth or falsity concerning the qualifications or integrity of . . . a judge.” Tenn.

Sup. Ct. R. 8, RPC 8.2(a)(1).

31

“It is professional misconduct for a lawyer to: (a) violate or attempt to violate the Rules of

Professional Conduct . . . [and] (d) engage in conduct that is prejudicial to the administration of justice.”

Tenn. Sup. Ct. R. 8, RPC 8.4(a), (d).

- 22 -

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. Gideon is

outlined in the facts above. Mr. Manookian testified, as did Judge Gayden.

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.”

- 23 -

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 had nothing to do with Shao.32 Mr.

Manookian claimed that, at that time, he was “not particularly involved” in Shao and did

not learn of Mr. Gideon’s August 17 letter on Shao discovery deficiencies until after he

sent his August 19 email.

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.

32

Although Mr. Manookian’s response to Mr. Gideon’s motion for sanctions attached an email

supposedly from an office employee indicating Mr. Gideon’s letter arrived at their office after Mr.

Manookian sent his August 19 email, at the hearing, the office employee did not testify, and Mr. Manookian

offered no evidence except his own testimony.

33

The hearing panel observed that Mr. Manookian did not call any witnesses to establish that Mr.

Gideon had spent years attacking him, either at Judge Brothers’s hearing on sanctions or at the disciplinary

hearing.

- 24 -

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 claimed he sought verification of the alleged allegations denigrating Judge Brothers,

but neither of the attorneys he contacted verified them. He admitted he had no other source

or corroboration for the scandalous assertions about Judge Brothers in the footnote in his

letter emailed to all Shao counsel.35

34

A member of the hearing panel observed:

“[Y]ou stated before that that was regularly available in CaseLink. Well, CaseLink

requires a subscription. Personally, I don’t pay it because it’s too expensive. So it’s not

readily available unless I were to walk down to the clerk’s office and get it. And yes, I

can, but that still doesn’t make like I can hit a Google search engine and just pull it up.”

35

While maintaining his comments in the letter to the Shao counsel about Judge Brothers’s alleged

corruption were only conveying Judge Gayden’s views, Mr. Manookian also claimed they arose from an

incident thirty years earlier, in 1992, in which Judge Brothers was arrested on federal criminal charges of

money laundering. In the hearing, Mr. Manookian asked Judge Brothers about the incident, and Judge

Brothers admitted it took place. The testimony before the hearing panel also established that Judge Brothers

was tried and acquitted of all charges, and went on to serve on the bench for many years thereafter. The

hearing panel did not mention this incident in its written findings and apparently gave it no weight in finding

that Mr. Manookian knowingly made false allegations of corruption about Judge Brothers. We agree that

the decades-old money laundering charges against Judge Brothers, of which he was eventually acquitted,

did not establish a reasonable factual basis for Mr. Manookian’s allegations of corruption.

- 25 -

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.”37

36

Mr. North denied that he made such a statement or that his reputation was ever mentioned “on

any level” at the status conference, and he testified Mr. Manookian had no response when Judge Ash had

asked him several times why he included that information about Mr. North’s reputation in the email.

37

Mr. North testified, after he was recalled to the stand, that he sent the motion for sanctions by

email in addition to U.S. Mail and that Mr. Manookian received the email with the motion the same day the

motion was filed.

- 26 -

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. . . .

....

38

As discussed above, the first August 3 email was a letter to all Shao counsel detailing an alleged

phone call with retired Judge Steve North, Mr. North’s brother, accusing Judge Brothers of various forms

of corruption. The second August 3 email was to Mr. North, with all Shao counsel copied, asking him

“verify” an attachment as a voicemail from Mr. North’s brother.

- 27 -

. . . 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.

Manookian answered, “I wasn’t taking any efforts to avoid embarrassing him.” He

admitted he hoped to embarrass Mr. North because the motions for sanctions against Mr.

Manookian included references to Mr. Manookian’s divorce and were served on Mr.

Manookian’s wife, who was co-counsel on the Shao case.

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

39

Asked by the hearing panel whether his emails to panel members were imbedded with tracking

pictures, Mr. Manookian replied he was no longer using the service because it was expensive.

- 28 -

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 found that “he was not credible.” As a consequence,

the panel credited none of Mr. Manookian’s testimony.

- 29 -

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 RPC 8.2(a)(1) by sending the

August 3, 2018 letter by email to Mr. North, accusing Judge Brothers of being corrupt. It

rejected Mr. Manookian’s argument that the statements were protected by the First

Amendment. It noted that the letter was sent to opposing counsel during the judicial

proceeding and referenced the Shao case.

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 RPC 4.4(a)(1) by sending the

emails on August 19, 2017 (regarding Mr. Gideon’s daughter), March 30, 2018 (regarding

Judge Gayden’s alleged opinion of Mr. North), August 3, 2018 (accusing Judge Brothers

of being corrupt) and August 4, 2018 (including personal information about Mr. North, his

home, his wife, his marriage, and his property). It rejected Mr. Manookian’s contention

that the August 19, 2017 email about Mr. Gideon’s daughter was not sent in the

representation of a client. The panel specifically rejected Mr. Manookian’s assertion that

he was not aware of Mr. Gideon’s letter pointing out many discovery deficiencies and that

the timing of his email was coincidental. It noted that, at the time the email was sent:

. . . 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

- 30 -

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 RPC 1.9(c) by disclosing

information that was not generally known. It rejected Mr. Manookian’s assertion that there

was nothing improper because the complaint was included in public records. It made a

factual finding that the information about Mr. Gideon’s son had not become generally

known and that Footnote 1:

. . . 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 RPC 8.4(d)40 and the “catchall” provision, RPC 8.4(a).41 It said that the emails

“were intended to, and did, distract opposing counsel and the judge from the underlying

40

“It is professional misconduct for a lawyer to . . . engage in conduct that is prejudicial to the

administration of justice.” Tenn. Sup. Ct. R. 8, RPC 8.4(d).

41

“It is professional misconduct for a lawyer to . . . violate or attempt to violate the Rules of

Professional Conduct . . . .” Tenn. Sup. Ct. R. 8, RPC 8.4(a).

- 31 -

case. Judge Brothers testified that he finally recused himself from the Shao case . . .

because of repeated efforts by Mr. Manookian to continually interject either problems with

counsel or the Court.”

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 the wrongful

nature of his conduct. It found no mitigating circumstances.

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 Tennessee Supreme Court Rule 9, section

33.1(a).44

42

“In determining the appropriate type of discipline, the hearing panel shall consider the applicable

provisions of the ABA Standards for Imposing Lawyer Sanctions.” Tenn. Sup. Ct. R. 9, § 15.4(a).

43

The hearing panel report refers to ABA Standard 4.31, but it appears the panel intended to

reference ABA Standard 4.21. The panel report states: “ABA Standard 4.31 addresses conduct in which

the attorney act[ing] without the consent of his client, knowingly uses information related to the

representation with the intent to benefit the lawyer or another, and cause[s] serious or potentially serious

injury to a client.” This reflects the language in ABA Standard 4.21, which states: “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.” In contrast, ABA Standard 4.31 involves conflicts of interest,

which are not at issue in this case.

ABA Standard 6.21 provides, “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.”

44

This rule provides:

- 32 -

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 Rule 33.1(a).

The trial court granted that motion and did not consider the Board’s argument that the

hearing panel abused its discretion.45

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:

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.

Tenn. Sup. Ct. R. 9, § 33.1(a).

45

The trial court’s ruling was based on Tennessee Supreme Court Rule 9 section 33.1(b), which

provides that the trial court may reverse or modify the finding of the hearing panel when:

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.

Tenn. Sup. Ct. R. 9, § 33.1(b) (emphasis added). This is discussed further below.

- 33 -

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 Tennessee Supreme Court Rule 9, section

33.1(d).46 Mr. Manookian also filed a notice of appeal. This Court consolidated the

appeals and designated the Board as the appellant.

STANDARD OF REVIEW

Disciplinary Counsel of the Board of Professional Responsibility is charged with

investigating complaints against attorneys in Tennessee. Tenn. Sup. Ct. R. 9, § 15.1(b).

When an investigation results in a petition for discipline against the attorney, the

evidentiary hearing is conducted by a hearing panel, Tenn. Sup. Ct. R. 9, § 15.2(a), and the

Board has the burden of proving the charges of misconduct by a preponderance of the

evidence. Tenn. Sup. Ct. R. 9, § 15.2(h). “In determining the appropriate type of

46

“Either party dissatisfied with the decree of the circuit or chancery court may prosecute an appeal

directly to th[is] Court.” Tenn. Sup. Ct. R. 9, § 33.1(d). The Board also cited Tennessee Rule of Appellate

Procedure 3(a) as a basis for its appeal. Tenn. R. App. P. 3(a) (“In civil actions every final judgment entered

by a trial court from which an appeal lies to the Supreme Court or Court of Appeals is appealable as of

right.”).

- 34 -

discipline, the hearing panel shall consider the applicable provisions of the ABA Standards

for Imposing Lawyer Sanctions.” Tenn. Sup. Ct. R. 9, § 15.4(a).

Either party may appeal the judgment of the hearing panel by filing a petition for

review in the circuit or chancery court. Tenn. Sup. Ct. R. 9, § 33.1(a). On appeal, the trial

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.

Tenn. Sup. Ct. R. 9, § 33.1(b). “A hearing panel abuses its discretion if it ‘appl[ies] an

incorrect legal standard or reach[es] a decision that is against logic or reasoning that causes

an injustice to the party complaining.’” Bd. of Pro. Resp. v. Parrish, 556 S.W.3d 153, 163

(Tenn. 2018) (alteration in original) (quoting Sallee v. Tenn. Bd. of Pro. Resp., 469 S.W.3d

18, 42 (Tenn. 2015)). “The trial court reviews questions of law de novo with no

presumption of correctness, but does not substitute its judgment for that of the hearing

panel on questions of fact.” Bd. of Pro. Resp. of Sup. Ct. of Tenn. v. Prewitt, 647 S.W.3d

357, 366 (Tenn. 2022) (citing Napolitano v. Bd. of Pro. Resp., 535 S.W.3d 481, 496 (Tenn.

2017)). Any party dissatisfied with the ruling of the trial court may appeal to the Supreme

Court. Tenn. Sup. Ct. R. 9, § 33.1(d).

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

- 35 -

procedure” under Tennessee Supreme Court Rule 9, section 33.1(b).47 His complaints

focus on issues surrounding a replacement panel member and the lack of a transcript of the

opening and closing statements.

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 member did not see the witnesses testify and could not

properly evaluate their credibility; (4) the hearing panel violated its rules by not providing

notice that only part of the transcript had been ordered; and (5) the hearing panel misled

him by not telling him it had provided an incomplete transcript.48

47

Tennessee Supreme Court Rule 9, section 33.1(b), provides the decision of the hearing panel may

be modified or reversed if the rights of the petitioner “have been prejudiced because the hearing panel’s

findings, inferences, conclusions or decisions are . . . made upon unlawful procedure.” Tenn. Sup. Ct. R.

9, § 33.1(b).

48

Mr. Manookian also contends that the panel chair improperly signed the name of the replacement

panel member to the final written decision, and argues this supports his contention that the replacement

panel member did not review the entire transcript of the testimony before the written decision was issued.

Having the panel chair sign the name of a replacement panel member to the final written decision with

permission is not an unusual occurrence and does not support any inference about what any of the panel

members did or did not review. This issue is without merit.

- 36 -

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.

49

In his brief, Mr. Manookian relies on cases that involve the deprivation of constitutional rights

of criminal defendants. These cases are inapposite. “As this Court has repeatedly held, attorney

disciplinary proceedings are not criminal proceedings.” Harris v. Bd. of Pro. Resp. of Sup. Ct. of Tenn.,

645 S.W.3d 125, 136 (Tenn. 2022).

50

See Tenn. Sup. Ct. R. 9, § 34.1(a) (“If [a] request is made by the hearing panel for only a portion

of the transcript, either Disciplinary Counsel or the respondent or petitioning attorney may request in

writing from the Chair authorization for transcription of any other portion of the hearing for

completeness.”).

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And the record contradicts Mr. Manookian’s assertion that he did not know until

December 2020 that the transcript of the hearing did not include the opening statements

and closing arguments. On the same day the Board filed the transcript with the hearing

panel, with a certificate of service to Mr. Manookian, an email from the Board’s Executive

Secretary shows that she sent notice of the transcript filing, along with “the currently

available transcript” to each of the hearing panel members, the Board’s attorney, and Mr.

Manookian. On April 20, 2020, Mr. Manookian submitted proposed findings of facts and

conclusions of law to the hearing panel in which he repeatedly referred to the transcribed

testimony. And on May 20, 2020, the Board’s Executive Secretary emailed Mr.

Manookian, informing him she had no record of having received the transcript of the

opening statements and closing arguments and noting that he had only requested that the

court reporter prepare the transcript of the evidence.

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. U.S. Const. amend. I. In the

main, he argues that all of his statements fall into categories of speech that are protected

under the First Amendment; that our ethics rules for attorneys are content- and viewpoint-

based, in violation of the First Amendment; that some of his communications are properly

categorized as out-of-court statements that should be analyzed differently from in-court

statements; and that some of his statements constitute truthful speech and speech in public

records that are protected under the First Amendment.

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

51

We note that Mr. Manookian did not appeal the intermediate appellate court’s adverse decision

for context only; the Board does not argue to us that Mr. Manookian is collaterally estopped from

relitigating his First Amendment arguments in this appeal, and we do not consider collateral estoppel in our

decision. See Mullins v. State, 294 S.W.3d 529, 534 (Tenn. 2009) (describing collateral estoppel as a

doctrine that “bars the same parties or their privies from relitigating in a later proceeding legal or factual

issues that were actually raised and necessarily determined in an earlier proceeding.”).

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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.” U.S. Const. amend. I.53 This Court

has recognized that citizens who choose to become lawyers do not surrender their First

Amendment right to free speech. Bd. of Pro. Resp. of Sup. Ct. of Tenn. v. Slavin, 145

S.W.3d 538, 549 (Tenn. 2004) (“[L]awyers do not check their First Amendment rights at

the courthouse door[.]”).

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

52

Gitlow v. New York, 268 U.S. 652, 666 (1925).

53

The Tennessee Constitution also protects the right to free speech. See Tenn. Const. art. I, § 19.

54

See also In re Comfort, 159 P.3d 1011, 1027 (Kan. 2007) (“A lawyer’s right to free speech is

tempered by his or her obligation to both the courts and the bar, an obligation ordinary citizens do not

undertake.”).

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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 lawyer’s remarks” and also “ensure that lawyer discipline . . . does not create a chilling

effect on First Amendment rights.” Id. at 121. The Court recognized that, for speech

outside the context of a pending, specific case, lawyers may be disciplined if the speech is

“designed to willfully, purposely and maliciously misrepresent the judges and courts of

this State, and to bring those persons and institutions into disrespect.” Id. at 122. It added,

“There is no First Amendment protection for remarks critical of the judiciary when those

statements are false.” Id. The Court held that, while the attorney’s remarks “were

disrespectful and in bad taste,” they were protected as within the attorney’s right to free

speech. Id. Using the lawyer disciplinary rules to sanction the attorney’s remarks to the

media in that case, the Court said, “would be a significant impairment of First Amendment

rights.” Id.

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

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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 U.S. Supreme Court views the State’s interest similarly,

noting that “[t]he interest of the States in regulating lawyers is especially great since

lawyers are essential to the primary governmental function of administering justice, and

have historically been ‘officers of the courts.’” In re Primus, 436 U.S. 412, 422 (1978)

(quoting Goldfarb v. Va. State Bar, 421 U.S. 773, 792 (1975)).

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.

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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:

(1) 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;

(2) 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;

(3) 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;

(4) June 7, 2018 email with subject line Shao to Mr. North with

demeaning and insulting language, in violation of Judge Brothers’s order;

(5) 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;

(6) 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

(7) 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.

- 42 -

As to context, all of these instances of misconduct occurred in the course of the Shao

litigation.55 The conduct was part and parcel of Mr. Manookian’s representation of the

plaintiff in Shao.56

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

55

Mr. Manookian argues that his initial August 19, 2017 email to Mr. Gideon about Mr. Gideon’s

daughter was a friendly message to a former colleague and not related to Mr. Gideon’s substitution as

defense counsel in Shao. But the hearing panel made a factual finding to the contrary, and it is well

supported by the evidence. The hearing panel found that, at the time 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, in case there were any doubt the email was associated with the Shao case, Mr. Manookian connected

it by attaching the same email, in unredacted form, to his response to Mr. Gideon’s motion for sanctions.

All of the remaining instances of misconduct were either pleadings filed in Shao or emails with Shao in the

subject line.

56

Thus, in this opinion, we do not address out-of-court attorney speech with no nexus to the

attorney’s representation in a pending case.

- 43 -

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. Manookian in Shao by intimidating, demeaning, embarrassing,

disparaging, and threatening opposing counsel in their personal capacity, and causing them

to fear for the well-being and even the safety of their families.

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.” Tenn. Sup. Ct.

R. 8, RPC 8.4(d). It is intended to protect our system of justice and ensure a fair, impartial

judicial system.58 Id. In this case, the hearing panel found, and the trial court affirmed,

that all of the communications in this appeal violated Rule 8.4(d).

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

Rule 8.4(d) to regulate out-of-court speech.

57

Apart from Mr. Manookian’s efforts in Shao to pressure Judge Brothers into recusal, the record

indicates that, prior to Shao, cases involving Mr. Manookian, often included motions for recusal of trial

judges based on allegations of bias or misconduct.

58

In Howell v. State Bar of Texas, 843 F.2d 205 (5th Cir. 1988), the Fifth Circuit reviewed Texas’s

version of Rule 8.4(d) under the First Amendment. Id. at 207–08. The federal court rejected the argument

that it was vague and overbroad, and it held that the rule was consistent with “the State’s primary concern

. . . the obligation of lawyers in their quasi-official capacity as ‘assistants to the court.’” Id. at 207.

- 44 -

Not so. Some of Mr. Manookian’s speech would be in-court speech in the form of

pleadings. Parrish, 556 S.W.3d at 167 (holding statements in recusal motions were in-

court statements). But, as we have noted, all of the communications occurred in the context

of Mr. Manookian’s representation of a client in a specific, pending case. As pointed out

in Gentile, “Lawyers representing clients in pending cases are key participants in the . . .

justice system, and the State may demand some adherence to the precepts of that system in

regulating their speech as well as their conduct.” 501 U.S. at 1074.

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 8.4(d) does not run afoul of the First Amendment as applied to Mr.

Manookian’s communications.

RPC 4.4(a)(1)

RPC 4.4(a)(1) prohibits lawyers, “[i]n representing a client,” from using “means

that have no substantial purpose other than to embarrass, delay, or burden a third person .

. . .” Tenn. Sup. Ct. R. 8, RPC 4.4(a)(1). Here, the hearing panel found, and the trial court

affirmed, that Mr. Manookian violated RPC 4.4(a)(1) in: (1) his August 19, 2017 email

sent to opposing counsel Mr. Gideon regarding his daughter; (2) his March 30, 2018 email

sent to opposing counsel Mr. North and others regarding Judge Gayden’s purported low

opinion of Mr. North; (3) his August 3, 2018 email and attached letter sent to opposing

counsel Mr. North and others claiming that retired Judge North had accused Judge Brothers

of being corrupt; and (4) his August 4, 2018 email sent to opposing counsel Mr. North and

others regarding Mr. North and his family.

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 Rule 4.4(a)(1).

- 45 -

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 RPC 4.4(a)(1) regulates lawyer

communications and conduct “[i]n representing a client.” Tenn. Sup. Ct. R. 8, RPC

4.4(a)(1). Here, all of the speech was found by the hearing panel to have been made in the

context of the Shao case, part of Mr. Manookian’s representation of the Shao plaintiff, and

this finding is well supported in the record. As explained above, government may limit the

speech of lawyers when the speech is in the context of a pending judicial proceeding.

Gentile, 501 U.S. at 1072.

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; for example, strong merit-based criticism of opposing

counsel’s arguments may leave him or her discomfited. That such advocacy may prove

incidentally embarrassing does not bring it under RPC 4.4(a)(1); the rule only prohibits

59

Mr. Manookian played a recording at the disciplinary hearing, but it was only of an inconclusive

voicemail that contained none of the unflattering opinions of Judge North claimed by Mr. Manookian.

60

As the hearing panel noted, Mr. Manookian included his August 19, 2017 email about Mr.

Gideon’s daughter, in unredacted form, in a pleading filed in the Shao case.

- 46 -

lawyers from using “means that have no substantial purpose other than to embarrass,

delay, or burden a third person.” Tenn. Sup. Ct. R. 8, RPC 4.4(a)(1) (emphasis added).

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 4.4(a)(1) does not violate the First Amendment.

RPC 8.2(a)(1)

Rule 8.2(a)(1) prohibits lawyers from making “a statement that the lawyer knows to

be false or that is made with reckless disregard as to its truth or falsity concerning the

qualifications or integrity of . . . a judge.” Tenn. Sup. Ct. R. 8, RPC 8.2(a)(1). The hearing

panel found that Mr. Manookian violated RPC 8.2(a)(1) in footnote 1 of his August 3, 2018

letter sent to opposing counsel Mr. North and other people, in which he claimed that Mr.

North’s brother, retired Judge Steve North, told him in a telephone conversation that Judge

Brothers was corrupt.

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 Rule 8.2(a)(1) is that the attorney’s false statement about the

qualifications or integrity of a judge must have been made with “reckless disregard as to

its truth or falsity.” Tenn. Sup. Ct. R. 8, RPC 8.2(a)(1). At times this has been compared

to the standard for defamation of a public official, where the plaintiff must show under a

subjective standard that the defendant was aware that the statement was probably false.

See New York Times Co. v. Sullivan, 376 U.S. 254, 279–80 (1964) (liability for a

defamation of a public official requires proof that the statement was both false and made

61

Mr. Manookian claimed he was only transmitting retired Judge North’s purported opinion that

Judge Brothers was corrupt. We agree with the hearing panel that the essential message conveyed by Mr.

Manookian in footnote 1 of the letter was an assertion that Judge Brothers was in fact corrupt.

- 47 -

with “actual malice,” i.e., made either with knowledge that it was false or with reckless

disregard as to its truth or falsity).62

Noting that “the United States Supreme Court has never extended the Sullivan

standard to attorney discipline,” this Court has applied an “objective” standard to the

knowledge component of RPC 8.2(a)(1), at least for in-court statements in pleadings.

Parrish, 556 S.W.3d at 165. Under the objective standard, “the court assesses the

statements in terms of what the reasonable attorney, considered in light of all his

professional functions, would do in the same or similar circumstances … [and] focus[ing]

on whether the attorney had a reasonable factual basis for making the statements,

considering their nature and the context in which they were made.” Id. at 165–66 (quoting

Disciplinary Couns. v. Gardner, 793 N.E.2d 425, 431 (Ohio 2003)) (internal quotations

omitted). Parrish explained that, “[i]t is the reasonableness of the belief, not the state of

mind of the attorney, that is determinative.” Id. at 166 (quoting Matter of Holtzman, 577

N.E.2d 30, 34 (N.Y. 1991)). Under this standard, an attorney may be sanctioned under

RPC 8.2(a)(1) for making false statements about the integrity of a judge if a reasonable

attorney would have been aware that the statements were likely false.

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 RPC 8.2(a)(1). Id. at 165–66.

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).

62

The “reckless disregard” for the truth standard in New York Times “requires more than a departure

from reasonably prudent conduct.” Harte-Hanks Commc’ns, Inc. v. Connaughton, 491 U.S. 657, 688

(1989). Instead, the “standard is a subjective one—there must be sufficient evidence to permit the

conclusion that the defendant actually had a ‘high degree of awareness of . . . probable falsity.’” Id. (quoting

Garrison v. Louisiana, 379 U.S. 64, 74 (1964)).

- 48 -

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 standard applied must reflect that level of competence, of sense

of responsibility to the legal system, of understanding of legal rights and of legal

procedures to be used only for legitimate purposes and not to harass or intimidate others,

that is essential to the character of an attorney . . . .” In re Disciplinary Action Against

Graham, 453 N.W.2d 313, 322 (Minn. 1990).

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,

63

In the alternative, the hearing panel found that even if the subjective standard were applied, it

was satisfied. Citing Ramsey, the panel reasoned that Mr. Manookian published serious allegations against

a sitting judge without any good-faith basis to do so. See 771 S.W.2d at 121. In light of our decision to

apply the objective standard to this speech, we need not address the panel’s alternative finding.

- 49 -

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 Rule 8.2(a)(1)

based on footnote 1 of the August 3, 2018 letter emailed to the Shao opposing counsel and

other people, making false and salacious statements about Judge Brothers, does not violate

the First Amendment.

RPC 1.9(c)

RPC 1.9(c) prohibits attorneys from revealing information relating to the

representation of a former client or using such information to the disadvantage of the

client.64 Tenn. Sup. Ct. R. 8, RPC 1.9(c). Here, the hearing panel found, and the trial court

affirmed, that Mr. Manookian violated Rule 1.9(c) by disclosing information about the

lawsuit he filed on behalf of Mr. Gideon’s son in Footnote 1 to the court pleading Mr.

Manookian filed in Shao on September 5, 2017.

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, 560 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.”

64

RPC 1.9(c) states:

(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.

Tenn. Sup. Ct. R. 8, RPC 1.9(c).

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As we have emphasized, the First Amendment would not shield Mr. Manookian

from discipline under Rule 1.9(c) even if Footnote 1 were technically “truthful.” As noted

above, Slavin stressed that lawyer speech “need not be false” to justify disciplinary action.

145 S.W.3d at 549 (quoting Waller, 929 S.W.2d at 183 (holding that lawyer’s in-court

speech was not protected by the First Amendment)).

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

65

Mr. Manookian’s reliance on Hunter v. Va. State Bar ex rel. Third Dist. Comm., 744 S.E.2d 611

(Va. 2013) is unavailing. In Hunter, the Virginia court held that an attorney’s blog reporting on public

proceedings regarding his clients’ cases was protected by the First Amendment, commenting, “To the extent

that the information is aired in a public forum, privacy considerations must yield to First Amendment

protections. In that respect, a lawyer is no more prohibited than any other citizen from reporting what

transpired in the courtroom.” Id. at 620. While the complaint in Mr. Gideon’s son’s case was filed in a

public record, there was no proceeding in a courtroom and nothing “aired in a public forum.” This goes to

the exception in Tennessee’s Rule 1.9(c)(3) (not contained in the rule at issue in Hunter) that allows a

lawyer to reveal information that “has become generally known.” Here, as discussed further below, the

hearing panel made a factual finding that the information about Mr. Gideon’s son’s lawsuit was not

“generally known,” and that finding was supported by testimony in the record.

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.

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In these circumstances, the State’s interest in regulating the in-court attorney speech

is at its zenith, to protect a client from abuse by his former lawyer for the personal benefit

of the lawyer. Mr. Manookian’s only interest in publicizing sensitive information about a

former client, “to the disadvantage of the former client,” was to secure unfair advantage by

intimidating his opposing counsel in pending litigation. Tenn. Sup. Ct. R. 8, RPC 1.9(c).

Mr. Manookian cites no case, and we have found none, where a lawyer’s interest in

publicizing sensitive information about a former client to the detriment of the client, to

intimidate opposing counsel in a pending case, outweighed the State’s interest in regulating

such misconduct. Disciplining Mr. Manookian under Rule 1.9(c) does not infringe upon

his First Amendment rights.

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:

(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.

Tenn. Sup. Ct. R. 9, § 33.1(b).

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. Id. A hearing panel’s decision is arbitrary or capricious

if it 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.” Hughes v. Bd. of Pro. Resp. of Sup. Ct. of Tenn.,

259 S.W.3d 631, 641 (Tenn. 2008). In applying the substantial and material evidence test,

we determine whether the hearing panel’s decision is “supported by such relevant evidence

as a rational mind might accept to support a rational conclusion.” Beier v. Bd. of Pro. Resp.

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of Sup. Ct. of Tenn., 610 S.W.3d 425, 438 (Tenn. 2020) (quoting Bd. of Pro. Resp. v.

Allison, 284 S.W.3d 316, 322 (Tenn. 2009)). We look at whether the record has a

“reasonably sound factual basis” for the hearing panel’s decision. Id. (quoting Hoover v.

Bd. of Pro. Resp. of Sup. Ct. of Tenn., 395 S.W.3d 95, 103 (Tenn. 2012)). A reasonably

sound basis is less than a preponderance of the evidence “but ‘more than a scintilla or

glimmer.’” Id. (quoting Allison, 284 S.W.3d at 322–23). To the extent that the hearing

panel’s findings hinged on its assessment of the credibility of witnesses, credibility and the

weight given to evidence are questions of fact. Our standard of review requires us to give

deference to the factual findings made by the hearing panel. Sitton, 618 S.W.3d at 298

(“[T]he court shall not substitute its judgment for that of the hearing panel as to the weight

of the evidence on questions of fact.” (quoting Tenn. Sup. Ct. R. 9, § 33.1(b))).

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 Rule 1.9(c) by

revealing information related to his representation of Mr. Gideon’s son in Footnote 1 to

response to Mr. Gideon’s motion for sanctions. Footnote 1 stated:

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.

Rule 1.9(c) generally proscribes revealing “information relating to the

representation or us[ing] such information to the disadvantage” of a former client, but it

contains an exception if the former client gives “informed consent, confirmed in writing”

or if the information “has become generally known.”66 Tenn. Sup. Ct. R. 8, RPC 1.9(c).

66

RPC 1.9(c) states:

(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

- 53 -

We note at the outset that Mr. Manookian inasmuch as admitted that he violated Rule

1.9(c) by including Footnote 1 in his pleading.67 Nevertheless, we briefly address his

arguments.

Mr. Manookian first argues that the record contains no evidence that his former client

did not give informed consent.68 But in the hearing before the panel, Mr. Gideon testified

without objection that his son did not know in advance that Mr. Manookian was going to

disclose any information about the lawsuit, and the disclosure was without authorization.

Mr. Manookian offered no evidence to the contrary. The hearing panel credited Mr.

Gideon’s testimony, and it constitutes substantial and material evidence.

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.

Rules would permit or require the lawyer to do so with respect to a client, or (3) the

information has become generally known.

Tenn. Sup. Ct. R. 8, RPC 1.9(c).

67

Paragraph 16 of the Board’s Supplemental Petition for Discipline states: “Mr. Manookian

revealed information related to his representation of Mr. Gideon’s son in an earlier lawsuit, without the

son’s permission, which was not generally known.” Mr. Manookian’s response admitted the allegation,

noting that he “was not aware at the time that the fact that information was a matter of public record was

not sufficient to permit its further disclosure in other proceedings without running afoul of RPC 1.9,” and

claimed regret for “allowing himself to be goaded by Mr. Gideon.”

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.

68

For purposes of this appeal, we will assume that the burden of proof was not on Mr. Manookian

to prove the exception, consent in writing by the former client.

69

Again, for purposes of this appeal, we will assume that the burden was not on Mr. Manookian to

prove the exception, that the information he revealed was “generally known.”

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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 of 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 Rule 1.9(c) is not intended to let

lawyers reveal information relating to a former representation to the detriment of the former

client simply because “a diligent researcher could unearth it through public sources.” In

re Anonymous, 932 N.E.2d 671, 674 (Ind. 2010). As a New Jersey federal district court

explained: “‘Generally known’ does not only mean that the information is of public record.

. . . The information must be within the basic understanding and knowledge of the public.

The content of form pleadings, interrogatories and other discovery materials . . . does not

make that information ‘generally known’ within the meaning of Rule 1.9(c).” Pallon v.

Roggio, No. CIV.A.04-3625(JAP), 06-1068(FLW), 2006 WL 2466854, at *7 (D.N.J. Aug.

24, 2006).

Further, Comment 8a to RPC 1.9(c) explains, “A lawyer may not . . . justify adverse

use or disclosure of client information simply because the information has become known

to third persons . . . . Even if permitted to disclose information relating to a former client’s

representation, a lawyer should not do so unnecessarily.” Tenn. Sup. Ct. R. 8, RPC 1.9(c),

cmt. 8a. The hearing panel found that the improper disclosure mischaracterized Mr.

70

Mr. Manookian acknowledges the witnesses’ testimony but dismisses it because none of them

conducted a poll on the public’s general knowledge of Mr. Gideon’s son’s lawsuit. This argument is

without merit.

71

The hearing panel was guided by ABA Formal Opinion 149, which states:

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).

20, ABA Formal Opinion 149.

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Gideon’s son and the underlying event, and that none of the events made it necessary for

Mr. Manookian to provide specific information about the case where he represented Mr.

Gideon’s son.72

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 RPC 1.9(c). The hearing panel’s findings are neither arbitrary nor capricious

and are supported by substantial and material evidence.

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 RPC 8.2(a)(1).74

72

Mr. Manookian argues that the hearing panel erred in ruling that Mr. Manookian’s disclosure

about his former client violated RPC 4.4(a)(1) and 8.4(a) and (d). He alleges the hearing panel based its

holding as to these violations on its finding that the footnote “had the potential for serious injury to his

former client.” However, the potential for serious injury to Mr. Manookian’s client was discussed in

connection with the hearing panel’s finding that Mr. Manookian violated RPC 1.9(c), which refers to

revealing or using client information to the disadvantage of the former client.

73

Footnote 1 to the August 3, 2018 letter stated:

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.”

74

RPC 8.2(a)(1) states “A lawyer shall not make a statemen

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