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"Victimizing the Families of Opposing Counsel and Causing Well-Founded Concern for Their Well-Being … Is … a Profound Dishonor as a Lawyer"
"Lawyers in litigation may be expected to assume the risk of a certain amount of rough-and-tumble. Their families do not. In preying on the families of opposing counsel, Mr. Manookian crossed the Rubicon."
From Manookian v. Bd. of Prof. Responsibility, decided Friday by the Tennessee Supreme Court (majority opinion by Chief Justice Holly Kirby):
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.
An excerpt from the long discussion of Manookian's misconduct:
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….
In mid-July 2017, the lawyers representing [a litigation adversary of Mr. Manookian's] 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….
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. 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.
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, 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.
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….
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.
The Tennessee Supreme Court went through a long analysis of these and other misbehaviors, rejected Manookian's First Amendment arguments (concluding that lawyers' speech in the course of litigation that sufficiently interfered with the administration of justice could be restricted), and concluded that the Board erred in imposing a sentence short of disbarment. An excerpt:
As we consider the propriety of the sanction, several aspects of Mr. Manookian's misconduct deserve particular comment. First, to say that Mr. Manookian engaged in multiple offenses is to understate. Despite lectures, fines, sanctions, and suspensions from judge after judge, Mr. Manookian did not choose merely to continue engaging in misconduct—each time he received the expected negative reaction to his behavior, he responded by escalating it….
Mr. Manookian engaged in this long pattern of intimidating and degrading conduct in order to succeed in Shao by coercing opposing counsel into standing down to avoid personal humiliation and emotional distress for them or their families. A business model of sorts, based on fear.
The length to which Mr. Manookian went to obtain detailed private information about opposing counsel also warrants comment. Mr. Manookian explained he used tracking applications imbedded into routine litigation email to give him detailed personal information about each person who opened the email, followed by a second service used by private investigators to obtain an even greater level of private information. Mr. Manookian's matter-of-fact testimony almost made it sound as though using private-investigator-level intrusive tools on everyday litigation correspondence to secretly extract private information to weaponize against opposing counsel is normal business behavior for a lawyer. It is not.
Most important, victimizing the families of opposing counsel and causing well-founded concern for their well-being and safety is an especially grave offense and a profound dishonor as a lawyer. Lawyers in litigation may be expected to assume the risk of a certain amount of rough-and-tumble. Their families do not. In preying on the families of opposing counsel, Mr. Manookian crossed the Rubicon.
The subversive impact of Mr. Manookian's conduct on the justice system cannot be overstated. Were we to permit such conduct to go unchecked, lawyers would flee the profession rather than risk personal mortification or the welfare of their families….
Finally, the record in this case offers no encouragement that Mr. Manookian would benefit from suspension and change his ways upon reinstatement. Apart from the misconduct in Shao, the record indicates Mr. Manookian drew findings by many judges that he engaged in fraudulent, threatening or demeaning conduct, or conduct that endangered the public or abused the judicial process….
Justice Sharon Lee dissented; here's her introduction:
While this Court has inherent jurisdiction over attorney disciplinary matters, attorneys must be afforded fair notice and an opportunity to be heard. For the first time, this Court has increased an attorney's discipline through the exercise of the Court's inherent jurisdiction outside of the process outlined in Rule 9 by disbarring Brian Philip Manookian without giving fair notice of its intent.
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In Tennessee, is a disbarred lawyer permitted to apply for readmission?
Section 30. Reinstatement
30.2. Individuals disbarred on or after July 1, 2020, are not eligible for reinstatement. Individuals disbarred under Rule 9 prior to July 1, 2020, may not apply for reinstatement until the expiration of at least five years from the effective date of disbarment.
https://www.tncourts.gov/rules/supreme-court/9
Yet another case of lawyers behaving badly.
"...tracking applications imbedded into routine litigation email to give him detailed personal information about each person who opened the email, followed by a second service used by private investigators to obtain an even greater level of private information."
How is this not a crime?
A Federal Offense under the AOL precedent that internet is presumed to cross state lines due to the nature of the internet.
The question is why wasn't he prosecuted. How often is disbarment data handed to the DA?
re: "How is this not a crime"
The "detailed personal information" is not really all that detailed nor is it personal. The "tracking applications" in question are things like read-receipts and tracking pixels. Read-receipts show the same internet header information that's in every email you send out. It's basic information necessary to make email actually work. You can't turn it off and still have email get where it belongs (though you could suppress the read receipt). Tracking pixels show the routine information captured by cookies of most any website you visit. It includes things like your current IP address, browser, the date-time stamp of when you opened the message and caused the image to load, etc.
I'll grant that some people do want to protect even those innocuous data elements. And that's easy to do if you take even modest efforts to secure your own computer. If you chose not to make that little effort, I have little sympathy. For a physical analogy, if you can't be bothered to hang up the drapes, you don't get to complain when the neighbors see something through your window.
Yeah, agree that part was a bit overblown.
Quick PSA for those who do choose to suppress read receipts: For some time now, the Outlook mobile app’s default behavior has been to (silently) send read receipts even if you had turned them off in the underlying Exchange account. You have to disable that through a separate setting, as described here.
So i get the read receipts and so on. The second step, using it to stalk people through a private investigator, seems like the crime.
He didn’t hire a private investigator, he used a service used by private investigators. But even if he had hired a private investigator, what crime do you he would have been committing?
This lawyers conduct sounds like cyberstalking: "intimidating, demeaning, embarrassing, and harassing communications"
The lawyer as terrorist who wins his cases by terrorizing opposing counsel into withdrawing. I know a schmuck like this.
That's not what "crossing the Rubicon" means.
Appealing a mere suspension when the trial court judge said he would disbar if he thought he had the authority sure sounds like casting the die to me.
The phrase was used in the context of "preying on the families of opposing counsel". While despicable, the court gave him plenty of opportunity to apologize, retract his statements and otherwise walk back the offenses.
The link appears to be an error. It is to the dissenting opinion, not the majority opinikn.
Whoops, sorry, fixed, thanks!
How is this ANY different then when Prosecutors go after the family members of defendants?
For US ADA's going after the family is the standard way to get someone to plead/flip.
That may depend on which language you understand.
If the family member has committed provable offenses how does _not_ going after that family member serve the public?
In fact, the most recent post in this yahoo's still-public Twitter account proudly recounts how he "satisfied [his] student loans the old fashioned way" (i.e., by suing the company that bought his perfectly valid student loans, simply hoping they wouldn't have the paper trail to be able to and/or wouldn't find it economical to litigate), and encouraged others to do the same.
Another one of Nashville's finest.
I haven't heard of that tactic working....
You realize that the link in the comment you're responding to literally documents the tactic working?
Allegedly. Given the opinion, not sure we can credit anything Manookian says, even if he supplies screenshots.
He could have taken the two-year suspension, but took the time and expense to appeal it twice, and ended up with a lifetime disbarment.
Indeed.
"He could have taken the two-year suspension, but took the time and expense to appeal it twice, and ended up with a lifetime disbarment."
Feed a pig, slaughter a hog.
Based on the facts, I am pleased to see that he was disbarred. This behavior is beyond the pale, and IMO (other than trust account issues), most state bars are too lenient when it comes to this type of conduct.
What made it particularly egregious is that the original panel said, "The baseline punishment is disbarment. We find no mitigating factors and a bunch of aggravating factors… so we're recommending a two-year suspension," giving no explanation whatsoever for the downward recommendation. And he still appealed!
I admit that a two-year suspension is a massive punishment for a lawyer. But in this case it was a gift.
The link goes to the dissent, not the opinion of the court.
Edit: I see ReaderY beat me to this.
I'll bet ChatGPT doesn't send out "intimidating, demeaning, embarrassing, and harassing communications"
What the ever living fuck was this "lawyer" thinking? The only good part is that karma is a bitch: he got suspended, and instead of
accepting it, he appealed and got his punishment increased.
Pro tip for lawyers: our disciplinary system is very very lenient; TPTB really hate to impose meaningful sanctions. If your response to being called out for misconduct (whether by a judge in a particular case or by the bar) is to admit fault, express contrition, and throw yourself on the mercy of the court/bar, you can escape severe punishment 90% of the time. Stubbornly insisting you did nothing wrong and doubling down, on the other hand?
Given where Mr. Manookian learned to practice law, I am not terribly surprised that he turned on his former mentor -- an execrable character in his own right.
So I read the whole opinion, and I repeat: what the fuck?
There are no realistic legal procedurals on television — my god, how boring would that be? — but there are some that try to make the legal aspects believable (e.g., Law & Order, Good Wife), some that don't really care (Suits), and some that are absurdist (e.g., Boston Legal or BITD Ally McBeal).
But if some scriptwriter had asked me to consult on a plot matching these events, I'd have said, "No, too ridiculous. Lawyers just don't act this way. It's not funny, so it doesn't fall in the third category, and it's not believable or 'gritty' or anything. It's just an insane person doing insane, self-destructive things."
There's a lot of strange conduct out there. But I have to admit, if you want to see one of the strangest constellation of facts ... you gotta give it to Florida Man!
Take a look sometime at Fla. Bar v. Adams et al., 198 So.3d 593 (Fla. 2016).
I'd try and describe it, but words cannot do it justice. Suffice to say that, among other things, "Bubba the Love Sponge," honeypots, and setting up opposing counsel for a crime ... it's all in there.
I looked up and started reading that one, and then said, "Hey, that looks familiar. Is that the one where…?" And sure 'nuff, it's the one where they got their opponent arrested for DUI.
That's the nutshell version, but yeah. Of course, the longer version is that they set up opposing counsel twice (the first time was a failure), lied to the Court and the Cops, used their paralegal to set him up, and destroyed evidence.
All so that they could try and use the publicity from that arrest for leverage in the litigation and/or settlement.
And the fallout was three disbarments and a police officer getting fired. Also? The incredibly rare and successful employment of the entrapment defense (in furtherance of a nolle prosequi), so there's that?
It's one of those cases that's almost seems fictional.
I remember that case. Three lawyers and a paralegal intentionally got another lawyer to drive drunk to gain advantage in a pending case. What struck me is, nobody as far as I know went to jail. The general rule is if you intentionally cause a crime to happen you are guilty of the crime, or at least guilty of solicitation of the crime. You could, in theory, get a DUI conviction without ever touching a drink or a car.
Hey, I litigated against Bubba the Love Sponge's ex-wife in Florida!
What else is there to say? The guy is a bad dude.