Bona Law Sues Tennessee Lawyers on State Board for Lawyer Suspension Violating Antitrust Laws and US Constitution

On April 29, 2019, Bona Law attorneys Jarod Bona and Aaron Gott and Nashville constitutional lawyer Daniel Horwitz filed a federal complaint in Nashville, Tennessee for constitutional and antitrust violations arising from a temporary suspension imposed by the Tennessee Board of Professional Responsibility.

The suit alleges that the lawyers appointed to the board “temporarily” suspended prominent Nashville medical malpractice lawyer Brian Manookian for his out-of-court speech made in an email that the board “took to be threatening.” The board, however, had known about the email for a month and a half, had opened a routine disciplinary case, and gave Mr. Manookian 60 days to respond. But before Mr. Manookian’s response was due, the board sought an emergency “temporary” suspension under the Tennessee Rules of Professional Conduct because Mr. Manookian exercised his First Amendment right to sue a state court judge for defamation just one day earlier.

As described in the complaint, the temporary suspension has lasted for more than seven months, yet the board has yet to bring any disciplinary charges against Mr. Manookian. And it has denied two petitions for dissolution of the suspension despite a conclusion from the Tennessee Lawyers Assistance Program that Mr. Manookian is a highly skilled and successful lawyer who poses no threat to the public. Instead, the board claims that he must show “good cause” to dissolve the suspension. And, in a twist worth of Kafka, it asserts he can only show good cause by admitting the board’s legally baseless accusations.

The complaint asserts that the board’s conduct violates the First Amendment’s free speech and petition clauses and the Fourteenth Amendment’s due process and equal protection clauses. Moreover, the complaint challenges the temporary suspension rules as facially unconstitutional because they allow the board to indefinitely deprive a lawyer of his law license—a recognized property interest—without any due process protections. The board obtained its suspension without proving its accusations with evidence, and now refuses to lift it despite abundant evidence that the accusation that Mr. Manookian represents a threat of substantial harm to the public were untrue.

Mr. Manookian also alleges that the board’s members—who are lawyers in private practice—conspired to restrain trade in violation of Section 1 of the Sherman Act. The temporary suspension excluded Mr. Manookian from the market for victims’ medical malpractice representation in Tennessee. Unlike most license suspensions, the complaint alleges, Mr. Manookian’s exclusion has an appreciable anticompetitive effect in the market because he is one of the top medical malpractice plaintiffs’ lawyers among a field of only about twenty competitors.

Since the board is dominated by active market participants, they are not immune from the antitrust laws unless they can show they acted pursuant to a clearly articulated state policy to displace competition and they were actively supervised by the state itself. The complaint alleges the board members are not entitled to the state action immunity because they were not actively supervised by the state such that the state specifically reviewed and approved of the anticompetitive aspects of the board’s decision. Here, the board concealed critical information from the Tennessee Supreme Court, which rubber stamped the board’s suspension bid without analysis.

The complaint seeks a court order declaring the board members’ conduct unlawful under the U.S. Constitution and the federal antitrust laws, an injunction requiring reinstatement of Mr. Manookian’s license reinstatement, compensatory and punitive damages, fees, and costs.

The case, captioned Manookian v. Flippin et al., No. 19-cv-00350, was filed in the U.S. District Court for the Middle District of Tennessee and has been assigned to District Judge Aleta Trauger.