STATE OF MICHIGANATTORNEY DISCIPLINE BOARD I

08JUN25 Pfl 2:37

GRIEVANCE ADMINISTRATOR, Case No. 07-83-GAAttorney Grievance Commission,

OPINION OF KENT COUNTY HEARINGPetitioner, PANEL #1 REGARDING SANCTIONS

FOR ATTORNEY MISCONDUCTV

JOHN L. COTE, P-i 2249,

Respondent.I

PRESENT: Martha E. Reamon (P36459), ChairpersonBruce A. Courtade (P41 946), MemberKevin J. ODowd (P39383), Member

APPEARANCES: Patrick K. McGlinn (P51558)Associate Counsel for the AttorneyGrievance Commission

Jon R. Muth (P18138)Counsel for Respondent

I

Introduction

This matter has been the subject of three days of hearings, beginning on August31, 2007. After the first day of hearing, this panel found that an attorney-client

relationship existed between the Respondent, John L. Cote (Mr. Cote) and theComplainants, Charles Rutherford, Sr. (Mr. Rutherford) and Patricia Rutherford(collectively referred to as the Rutherfords). After another day of testimony, this panelissued an Opinion, in which it unanimously determined that Mr. Cote violated the

Michigan Rules of Professional Conduct (MRPC) most specifically MRPC i.9(c)(i)and (2) and MRPC 8.4(a) and Michigan Court Rules (MCR) 9.104(A)(3) and (4).

The panel concluded its review of this matter after a third day of testimony, held

on May 22, 2008. The last day of hearing focused on what penalty (if any) should beimposed upon Respondent as a result of his violations of the MRPC.

The background facts surrounding this tragic case have been well set forth in the

panels prior two opinions. Rather than restate all of those facts, the panel incorporates

those findings as if fully restated herein. In addition, the panel relies on the facts and

arguments presented during May 22, 2008 hearing, summarized below, as well as the

seven Stipulated Exhibits offered by the parties.1

Factual Overview

1. Respondents Proofs.

Upon stipulation of the parties and for the ease of witnesses called to testify on

his behalf from around the State, Respondent proceeded with his defense prior to the

Petitioner offering any evidence. Appearing via telephone was Donald D. Campbell

(P43088); testifying live before the panel were attorneys William F. Mills (P24263),Jason S. Schnelker (P57308), Curtis R. Hadley (P32160), Lawrence P. Nolan (P25908),Don LeDuc (P16496).

1 Those Exhibits include:

1. September 19, 2007 correspondence from Leon J. Letter to Respondent (Bates 001 007).2. October 30, 2007 fax from Mr. Letter to Respondent (Bates 008038).3. curriculum Vitae of Respondent (Bates 039045).4. May 7, 2008 correspondence from Respondent to Kent County Hearing Panel #1 and the

Rutherford family (Bates 046049).5. May 8, 2008 correspondence from Michael E. Thomas to Respondent (Bates 050).6. September 2007 Charlevoix Public Library Library Link (Bates 051 058).7. Undated correspondence to ADB Panel from John A. Rutherford (Bates 059060).

The Exhibits, which were exchanged and agreed to prior to the hearing, were not formally entered intoevidence by either of the parties. However, both parties referred to them often during the course of thehearing. Thus, they have been considered by the panel not as direct evidence, but as documentarysupport for the testimony of the witnesses.

2

The panel was uniformly impressed with the quality and sincerity of these

character witnesses. Each described long-standing persona? and professional

relationships with Mr. Cote, and spoke very highly of his professionalism and his

commitment to his clients throughout the time that they have known him. He was

described as courteous, a joy to be around, having an excellent reputation forprofessionalism and ethics, one who was esteemed by his colleagues and a lawyer

about whom they had never heard a negative comment. All expressed surprise at

learning about the complaint against Mr. Cote before this panel. Messrs. Hadley and

Nolan both testified that they did not believe that Mr. Cote would knowingly or

intentionally do anything that would harm or prejudice a client.When advised of the nature of the allegations against Mr. Cote and specifically

the nature of public comments that he made implicitly or explicitly ruling out

manufacturers defects as a cause of Ms. Stempiens and Charles Rutherford, Jr.s

disappearance; implicitly or explicitly stating that Charles Rutherford, Jr. (Charles)could be responsible for Lana Stempiens death; and that it was possible that Charles

was still alive even some of Mr. Cotes staunchest supporters opined that they did not

feel that those comments were appropriate. Mr. Nolan, who considers Mr. Cote a

mentor and cites him as a key contributor to his professional development and career,

stated that he could not imagine circumstances under which he would make those same

comments. Pressed further, he admitted that he would not make those comments,

especially under the present circumstances, where Mr. Cote was expressly advised by

his putative clients, in writing, not to speak to the media. Likewise, Dean LeDuc (whohas taught professionalism and ethics to Cooley Law School students and has had Mr.

3

Cote teach segments of those classes to his students) stated that he would not havemade those comments.

Mr. Cote also testified at the hearing. He apologized to the Rutherfords for

causing them any pain, and stated that he started out trying to help. He stated that he

could never have envisioned what has happened as a result of his involvement in this

situation, and on more than one occasion painfully reflected Me of all people! Noting

that a very significant part of his ongoing practice involves representing other attorneys

and judges who have run afoul of the Rules of Professional Conduct, Mr. Cotewondered How could I ... have done such a lousy job here?

Mr. Cote offered some insight as to his purported state of mind at the time of his

interaction with the Rutherfords. He professed to know and understand the rules

regarding the disclosure of information obtained during the representation of former

clients, and claimed that, had he realized that he had in fact established an attorney-

client relationship with the Rutherfords, he would never have made the statements that

he did. He also reiterated his statement from earlier hearings that he felt that all of the

information that he conveyed during his various public comments were already known

to the public, and that he was just another voice in what was a very public case.Apparently to show that he sought out independent confirmation of his duties (or

lack thereof) in this situation, Mr. Cote offered into evidence two faxes and supportingdata which he received from Leon Letter, a colleague from Lansing. However, both

faxes were sent after the first two days of hearings in this matter and well after the

conduct giving rise to the grievance in the first place.2

2 Exhibit #1 was a fax dated September 19, 2007; Exhibit #2 was sent on October 30, 2007.

4

Mr. Cote testified that he got wrapped up in the mystery of what had happened

to Ms. Stempien and Charles Rutherford, Jr., and just couldnt let it go. He stated thathe felt that I could help solve the mystery, and that he had offered his assistance to

the Rutherfords as a friend.

Mr. Cote has practiced law in the State of Michigan for roughly 45 years. In that

time, he has never had a malpractice claim brought against him, never been sanctioned

by a court, never been accused of dishonest or unethical conduct and prior to the

incident in question never had a grievance filed against him. He stated that this

grievance has been devastating for him (Me of all people!).When asked what he thought an appropriate punishment should be, he stated

that he believed a reprimand and nothing else was called for, since he posed no threat

to the public, legal profession or courts. On cross-examination, Mr. Cote stated that he

felt remorse when he was told by this panel that he should have recognized the

relationship that existed between himself and the Rutherfords. However, he testified

that he remains convinced that there was no attorney-client relationship.

Mr. Cote was also asked about a public presentation that he made concerning

the underlying case at the Charlevoix Public Library.3 He admitted agreeing to speak

after the Rutherfords had sent a cease and desist letter demanding that he stop all

public comment about the case and after the grievance was filed against him. Likewise,

he appeared on the Greta Van Susteren television show after receiving both the cease

and desist letter and grievance.

See, Exhibit #6.

5

Mr. Cote answered several questions from the panel concerning his testimony.

He admitted that his statement concerning being just another voice was unrealistic,and that his status as an attorney and particularly an attorney who held himself out as

the Sherlock Holmes of maritime law naturally gave his public comments additional

significance. He also admitted that just another voice would never have been asked tocomment in the national media or appear with Greta Van Susteren. Mr. Cote also was

asked how, in the light of being presented with so many red flags about the existence

of an attorney-client relationship in this case, the panel could be assured that he would

not make the same mistake again. In response, Mr. Cote simply stated that he could

look the panel in the eye and assure it that he would never do this again.

The final witness to testify on Mr. Cotes behalf was his wife of 55 years, Joy.

Mrs. Cote was a very sincere and forthright witness, and testified that since the

grievance was filed, her husband has not had a full nights sleep. She testified that she

and her husband pray about this incident all the time, keeping the Rutherfords in their

prayers.

Significantly, Mrs. Cote also admitted that she had discussed her husbands

public statements about the case with him. Specifically, she said that she was

concerned about those comments, and even warned him to be careful about what he

said before he spoke out.

2. Petitioners Proofs.

Petitioner offered only one witness in this portion of its case: Patricia Rutherford.

Mrs. Rutherford explained that her son, Charles, was 34 years old at the time of his

disappearance. She professed a great deal of pride in Charles and in his law practice.

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Mrs. Rutherford explained how she and her family have been hurt by

Respondents public statements and comments, noting that the Date Line episode

concerning their sons disappearance had aired roughly six times since the second day

of this hearing. Each time the episode is televised, she and her family receive

telephone calls from friends and relatives from around the country and her son John

even saw the episode on television once while he was traveling in Japan.

Mrs. Rutherford explained that she is finally able to ignore the television

interviews when they air, but that her husband, Charlie has a hard time not watching it.

She described each airing as a painful event.

Mrs. Rutherford also explained with a great deal of dignity how difficult it has

been for her family to remain silent and not to engage the media in response to

comments by the Respondent. She stated that her son has been maligned, and that his

sterling reputation ... has been destroyed in part by the Respondents comments.

Mrs. Rutherford explained that Mr. Cotes public comments have hurt and put a

strain on her entire family, including her son John and her husband. She noted how

difficult it has been for her husband to do what he perceived to be the right thing: to let

this grievance process run its course rather than engage in a public debate with Mr.

Cote which could only hurt his sons reputation and memory.

7

Legal Analysis

1. The Applicable Standards Governing the Imposition of Sanctions forLawyer Misconduct - Generally.

a. The Michigan Supreme Court Promotes Use of the ABAStandards for Imposing Lawyer Sanctions.

In 2000, the Michigan Supreme Court directed the use of the ABA Standards for

Imposing Lawyer Sanctions.4 Lopatin quoted from those Standards:

The standards are not designed to propose a specific sanction for each ofa myriad of fact patterns in cases of lawyer misconduct. Rather, thestandards provide a theoretical framework to guide the courts in imposingsanctions. The ultimate sanction imposed will depend upon the ~resenceof any aggravating or mitigating factors in that particular situation.

The Court also issued this cautionary instruction:

We caution the ADB and the hearing panels that our directive to follow theABA Standards is not an instruction to abdicate their responsibility toexercise independent judgment. Where, for articulated reasons, the ADBor a hearing panel determines that the ABA Standards do not adequatelyconsider the effects of certain misconduct, do not accurately address theaggravating or mitigating circumstances of a particular case, or do notcomport with the precedent of this Court or the ADB, it is incumbent on theADB or the hearing panel to arrive at, and explain the basis for, a sanctionor result that reflects this conclusion.6

The ABA Standards provide penalties for the failure of a lawyer to preserve a

clients confidences ranging from admonition to disbarment, with disbarment reserved

for the knowing disclosure of client information that causes injury or potential injury to aclient.7 But those same standards also provide for the use of mitigating and aggravating

circumstances to lead to a result different from the presumptive one.8 And even after

Grievance Administrator v Lopatin, 462 Mich 235; 612 NW2d 120 (2000).~Id at 239.6 Id at 247 n 13.

ABA Standards for Imposing Lawyer Sanctions (ABA Standards) 4.2.8ABA Standards 9.1-9.3.

8

adopting the ABA Standards, Michigan continues to look to its own discipline cases

decided prior to that adoption, for guidance in the myriad situations that arise.9

b. The MRPC and ABA Standards Generally.

As explained in the ABA Standards and in the Comment to Rule 1.0 of the

Michigan Rules of Professional Conduct,

[t]he legal professions relative autonomy carries with it specialresponsibilities of self-government. The profession has a responsibility toassure that its regulations are conceived in the public interest and not infurtherance of parochial or self-interested concerns of the bar.1

Further, the MRPC are rules of reason,11requiring the balancing of unique facts

and circumstances presented in each instance. To assist panels in this effort, the

Comment to MRPC 1.0 provides the following guidance:

They should be interpreted with reference to the purposes of legalrepresentation and of the law itself. Some of the rules are imperatives,cast in the terms shall or shall not. These define proper conduct forpurposes of professional discipline.

The rules do not, however, exhaust the moral or ethical considerationthat should inform a lawyer, for no worthwhile human activity can becompletely defined by legal rules. The rules simply provide a frameworkfor the ethical practice of law.12

2. Rule 3.0 and the Factors to Be Considered in Imposing Sanctions.

Section 3.0 of the ABA Standards direct this panel to consider the following

factors in imposing a sanction based upon the finding of Respondents misconduct:

(a) the duty violated;(b) the lawyers mental state;

~ Lopatin, supra at 247 n 13; see Grievance Administrator v Baker, Case No. 06-66-GA (Mich ADBSeptember 11, 2007).~ ABA Standards, quoting the Preamble to the ABA Model Rules of Professional conduct; MRPC 1.0.Emphasis added).Comment to MRPC 1.0.12 Id.

9

(c) the potential or actual injury caused by the lawyers misconduct; and(d) the existence of aggravating or mitigating factors.13

a. Respondent Violated MRPC 1.9(c).The first consideration mandated by the ABA Standards is the duty that the

Respondent violated which subjects him to the imposition of sanctions. Here, althoughMr. Cote was found to have violated MRPC 1.9(c)(1) and (2) and MRPC 8.4, the panelconsiders the violation of MRPC 8.4 purely derivative of his violations of MRPC 1.9(c),and therefore irrelevant for purposes of determining the severity of any sanctions.14

Mr. Cotes violation of Rule 1.9(c) is more than adequately explained in thispanels earlier decision. For purposes of determining appropriate sanctions, however,

the panel notes that the provisions that he is found to have violated are imperative

rules which define proper conduct for purposes of professional discipline, since Rule

1.9 provides that attorneys shall not use or reveal information about former clients.

b. Mr. Cotes Conduct and Mental State Was Knowing andIntentional.

Mr. Cote testified that he would never have knowingly violated his professional

duties and had he known that an attorney-client relationship existed, he would not have

made the public comments that he did. He thus argued that he was simply negligent,

13 Petitioner correctly notes that Lopatin also requires consideration of relevant Board precedent forguidance. Here, counsel for both parties noted the dearth of relevant cases on point, identifying only two(Grievance Administrator v Thornton, case No. 05-1 12-GA (2007) and Grievance Administrator vMeretsky, Case No. DP-244/82 (1984)) which discussed the violation of rules governing the disclosure ofclient information. The panel reviewed these decisions and concluded that they are not squarely on point,since: a) they dealt with the threatened disclosure of private information, whereas Mr. Cote actuallydisclosed the information and continued to do so even after being asked to stop; and b) as discussedinfra, in assessing the unique facts of this matter, the panel concludes that the aggravating facts presenthere outweigh the minimal impact of non-binding precedent not squarely on point with this case.14 MRPC 8.4 provides that it is professional misconduct for a lawyer to violate ... the Rules ofProfessional conduct. Mr. Cote therefore violated Rule 8.4 by violating Rule 1.9(c).

10

since reasonable minds could disagree regarding whether an attorney-client relationship

existed between him and the Rutherfords.15

Treading carefully so as not to re-try the determination that an attorney-client

relationship existed, counsel for Mr. Cote lists a series of factors which might give rise

to a reasonable difference of opinion as to the nature of the relationship:

For example, with the exception of Jacks offer to work for free, there wasinitially no retainer or discussion of fees. There was no discussionregarding the scope of the representation. There was never a meeting ordiscussion on the subject of the representation. No confidentialcommunications took place; the only conversation Jack had with amember of the Rutherford family was with Charles at the Stempienvisitation. Though it is the hallmark of the attorney-client relationship, nolegal advice was requested and none was offered. Indeed, the vastmajority of the information Jack possessed came from sources other thanthe Rutherfords. These factors are all the more significant given thatCharles Rutherford is himself a very able lawyer who was at all timesrepresented by very able counsel. Having the entire resources of DykemaGossett at his disposal, he certainly did not need Jack for legal advice.

Moreover, Jacks conduct as it related to the Rutherfords suggests hisbelief that no attorney-client relationship existed. Everything Jack did wasconsistent with a role as an investigator - he did no legal research,prepared no memos, drafted no pleadings, wrote no opinions, nevercommunicated as an attorney with other counsel, and never counseledwith the Rutherfords. In fact, when Jack mentioned the possibility that theRutherfords consider retaining him as a lawyer, the relationship abruptlycame to an end.

All this is strongly indicative of two things: Jack never thought he wasacting as the Rutherfords attorney, and his belief, though ultimatelyincorrect, was not altogether unreasonable under the circumstances.16

However, while this argument seems compelling at first blush, it is not persuasive given

the timetable of events and particularly the timing of Mr. Cotes appearances on the

Greta Van Susteren show and his presentation to the Charlevoix Public Library.~ Respondents Pre-Hearing Brief, p. 6.16 Id.., at p. 7. The panel notes that this summary ignores the evidence cited in our prior Opinion clearlyestablishing an attorney-client relationship, and that Mr. Cote did, in fact, offer legal advice to theRutherfords when he opined that there was no basis for a legal claim against the boat manufacturer.

11

While reasonable minds might disagree as to whether there was an attorney-

client relationship prior to January 20, 2006, any doubt as to the Rutherfords

understanding of that issue should have been removed when Mr. Cote received

attorney Michael Cummings letter of that date. In no uncertain terms, Mr. Cumming

stated that the Rutherfords had retained Mr. Cote during the period from August 20,

2005 ... through the termination of your services on September 13, 2005. On behalf of

the Rutherfords, Mr. Cumming cited Mr. Cotes flagrant pursuit of [his] own financialand publicity interests while violating ethical rules, ordered him to cease and desist

from further public comment, and notified him that Mr. Rutherford felt obligated pursuant

to MRPC 8.3 to file a grievance against him because of his intentional disregard for the

Rutherfords instructions not to talk to the media. That grievance was received by the

Grievance Commission on January 23, 2006.

As noted in Mr. Cotes pre-hearing brief, the determination of the existence of an

attorney-client relationship focuses on the putative clients subjective understanding.Grace v Center for Auto Safety, 72 F3d 1236, 1242 (CA 6, 1996). However, that beliefmust be objectively reasonable under the circumstances. Fletcher v Ed of Educ ofSchool Dist Fractional No 5, 323 Mich 343, 348; 35 NW2d 177 (1948)17 Thus, anattorney like Mr. Cote, with extensive experience in representing attorneys and judgesbefore the ADB and AGC; who chaired the ADB and taught professional responsibility

and ethics to generations of law students; and who professes to understand completely

his responsibility to clients and former clients under the Rules of Professional Conduct;

should clearly have known that his putative clients, the Rutherfords, subjectively

17 Respondents Pre-Hearing Brief, p. 6.

12

understood that he was their attorney, and did not want him making any further public

statements about the case (especially when those statements tended to point the fingerof blame at their missing son).

However, rather than heed his putative clients wishes, Mr. Cote in direct

contravention of those wishes and with full knowledge of the pendency of a grievance to

which he had already filed an answer but which was still pending before the ADB went

through with public appearances on a nationally-broadcast (and repeatedly re-broadcast) television show which again pointed suspicious fingers at CharlesRutherford, Jr., and he also held a public discussion of the case at the Charlevoix Public

Library. Under these facts, there can be no doubt that Mr. Cotes conduct was

intentional, and was undertaken with conscious disregard for his putative clients

understanding and belief that an attorney-client relationship had been established.

In this regard, the panel explicitly rejects Respondents implicit assertion that anattorney may escape responsibility for violating the MRPC by professing a good faith

belief that he has not violated the Rules when that professed belief flies in the face of

overwhelming objective evidence to the contrary.Indeed, acceptance of this argument would establish precedent for others to do

exactly what Mr. Cote did: in the face of a grievance filed by a distinguished member of

a well-respected law firm, engage in the exact same conduct complained of, and then

escape liability by claiming a lack of knowledge of wrongdoing until receipt of an opinion

by a panel of the ADB more than a year after the fact, and after untold harm to the same

or other clients. Obviously, this is not conduct that would be in the best interest of the

public, the profession or the administration ofjustice.

13

c. The Rutherfords Were Harmed By Mr. Cotes Misconduct.

One could not hear the testimony of the Rutherfords or read the letter submitted

by their son, John, and not understand that they were deeply hurt and outraged by Mr.

Cotes breach of their trust. Mr. Cotes dismissal of their demands to stop commenting

about Charles disappearance was magnified by his seeming unabated presence in

local newspapers, on the radio, on national television broadcasts, and even at the

Charlevoix Public Library. Each time he spoke publicly, saying things like The key to

solving the case, in my judgment, lies in the personal relationship between LanaStempien and Chuck Rutherford,18 or gave an interview stating that their beloved son

was in one of two places. Hes at the bottom of Lake Huron, or hes walking around

somewhere,19 those painful wounds were re-opened by their attorney who should

have been helping them through this tragic occurrence.

The panel understands that every family losing a loved one experiences pain and

suffering. That pain is no doubt be magnified when, in cases like the disappearance of

Charles Rutherford and the death of his girlfriend, the media gets involved. However,

there is simply no denying that, as Mr. Cote admitted, he was much more than justanother voice adding to the story. It is his unique status (i.e., Sherlock Homes ofMaritime Law) and position of trust and guidance achieved through his representationof the Rutherfords that not only gave him access to the national media attention but

also the ability to broadcast the message that his clients forbade him from speaking

literally across the world. That, in turn, caused uniquely magnified damages to his

clients.

~ Hearing Exhibit #36 (Transcript from January 13, 2006 Dateline NBC broadcast).19 Hearing Exhibit #39 (April 2006 edition of Hour magazine, p. 56, bates stamp 68).

14

Further, the fact that Mr. Cote who identified himself as a lawyer who used to

work for the Rutherfords until he asked too many questions and all of a sudden they no

longer needed my services20 then chose to broadcast to a nationwide audience that

foul play on the part of Charles Rutherford, Jr. could not be ruled out as a possible

cause of Lana Stempiens death, and that he found no evidence of a manufacturing

defect in the boat from which they both disappeared, cannot have anything but a

negative impact on the Rutherfords ability to maintain any cause of action against the

boat manufacturer, or against the estate of Ms. Stempien.

d. Aggravating and Mitigating Factors.

i. Aggravating Factors.

Rule 9.2 sets forth a non-exclusive series of factors that may be considered to

justify an increase of the degree of discipline to impose. Among those that the panelconsidered and which weigh against Respondent are the following:

Dishonest or Selfish Motives.21 Mr. Cote is an immensely proud man.It is clear from the evidence presented throughout the three days ofhearing that he perceives (and advertises himself) to be The SherlockHolmes of Maritime Law. To solidify that reputation and to expandhis reputation in the national media that exploded with the advent ofcable television he placed his own interests above those of hisclients. Whether acting out of self-interest (i.e., to further embellish hisreputation) or out of an obsessive need to solve the mystery as heand his counsel suggested, Mr. Cote ignored his clients expresswishes and caused them harm.

Pattern of Misconduct.22 One of the most troubling aspects of Mr.Cotes behavior is that, despite repeated and admittedly understoodinstructions from the Rutherfords to stop making public comments onthis matter, he chose time and time again to speak to (among others)The Detroit News, The Grand Rapids Press, MSNBC, Hour Magazine,

20 Hearing Exhibit #32 (September 16, 2005 Article from Detroit News).21 Standard 9.22(b).22 Standard 9.22(c).

15

Dateline NBC, The Greta Van Susteren Show, and the CharlevoixPublic Library. Particularly troublesome are the public commentsmade after filing ofthe grievance which brings us to this point.

Submission of False Evidence, False Statements or other DeceptivePractices.23 The panel has stated and believes that Mr. Cotesrepeated statements that he was seeking answers that would benefitboth families are simply untrue. His repeated assertions that CharlesRutherford could or should be considered a potential cause of LanaStempiens death in no way could help the Rutherfords; his publicannouncement of ruling out potential causes of action likewise did nothelp the Rutherfords; his suggestion that the key to the case was thepersonal relationship between Lana Stempien and Charles Rutherford(the man whom he had stated could still be walking aroundsomewhere) can p~jybe read to hurt the Rutherfords; and his self-serving report to the Detroit News that he was terminated after askingtoo many questions for the Rutherfords liking was not only misleadingbut could have in no way been intended to help his putative clients.

Refusal to Acknowledge Wrongful Nature of Conduct.24 Mr. Cotescounsel suggested he was unaware of any precedent for a defendantto be forced to give up a defense in order to avoid additionalpunishment if he ultimately is found responsible for that offense. Thepanel is persuaded by this argument under normal circumstances.Had Mr. Cote simply declined to appear on the Greta Van SusterenShow or to speak at the Charlevoix Public Library after receiving thecease and desist letter and the formal grievance, his actions mightnot justify an increase of the degree of discipline to impose. However,where Mr. Cote seeks to insulate himself from recrimination by offeringhis lengthy history of experience within the attorney discipline system,but then shows his disregard for that system by continuing to engagein the conduct for which he is being investigated and prosecuted, hecrosses a line and must accept responsibility for his conscious decisionto wager that his subjective and skewed interpretation of the MRPCmight be incorrect.

Vulnerability of Victim. As stated in the panels prior Finding, it is hardto imagine more vulnerable clients than parents with a missing sonwho not only have to cope with the idea that he might be dead, buthave to determine what to do with his law practice. In this regard, thetestimony of Mr. Cumming and Charles Rutherford, Sr. was extremelycompelling. Mr. Cote knew of this vulnerability, and offered to help.Indeed, but for Mr. Cotes prior relationship with Charles Rutherford,

23 Standard 9.22(f).24 Standard 9.22(g).

16

Sr. and his unique background investigating fatal boating accidentsinvolving missing persons, Mr. Cote would not have been invited toparticipate in this investigation. Thus, Mr. Cote clearly appreciated thevulnerabilities of the Rutherfords tragic situation from the outset.

Substantial Practice of Law. Mr. Cote has been licensed for 45 years.He served on the Attorney Discipline Board for 7 years (5 as chair).He testified that the majority of his practice currently involvesrepresenting attorneys and judges in the disciplinary system. As hestated repeatedly, of all people, he should have known that his publicstatements against his clients express wishes were a violation ofhis professional obligations.

The panel considered but rejected Petitioners contention that Mr. Cotes actionsshould be considered multiple offenses under Rule 9.22(d). We believe that standardapplies to instances in which a respondent is facing charges that he or she has

engaged in conduct for which he or she has already been disciplined in a separate

disciplinary proceeding. Likewise, the panel is not convinced that Mr. Cote intentionally

misled the panel by submitting materials provided by Mr. Letter which he received after

the beginning of this process. Thus, it will not consider that to be a factor either in favor

of aggravation or of mitigation.

ii. Mitigating Factors.

The panel takes no pleasure in performing its duties as it relates to imposing

sanctions against Mr. Cote. He has been a pillar of the legal community in the State of

Michigan for 45 years. He is a true gentleman and conducted himself courteously and

professionally at all times during this hearing, despite the knowledge that the panel was

considering sanctions that might include his disbarment. Indeed, there are a great

number of mitigating factors which the panel has taken into consideration in fashioning

its penalties for his misconduct. Among those factors are the following:

The absence of any prior disciplinary record;

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His tremendous reputation within the legal community for honesty andintegrity, and as a mentor to other lawyers as evidenced by the trulyoutstanding character witnesses who appeared to testify on his behalf;

His outstanding contribution to the legal community and service to theState Bar of Michigan, its committees and local counterparts, in whichhe has remained a valued and respected member throughout his longand distinguished career, and;

The remorse that he expressed to the Rutherfords during his testimonyand his ultimate acceptance and regret over any harm brought on byhis conduct.

3. Rule 4.2 and the Presumptive Standards of Sanctions Applied toRespondents Misconduct.Rule 4.2 of the ABA Standards describes the sanctions that are generally

appropriate (absent aggravating or mitigating factors) for the violation of MRPC 1.9(c),directing as follows:

4.21 Disbarment is generally appropriate when a lawyer, with the intentto benefit the lawyer or another, knowingly reveals informationrelating to representation of a client not otherwise lawfully permittedto be disclosed, and this disclosure causes injury or potential injuryto a client.

4.22 Suspension is generally appropriate when a lawyer knowinglyreveals information relating to the representation of a client nototherwise lawfully permitted to be disclosed, and this disclosurecauses injury or potential injury to a client.

4.23 Reprimand is generally appropriate when a lawyer negligentlyreveals information relating to representation of a client nototherwise lawfully permitted to be disclosed and this disclosurecauses injury or potential injury to a client.

4.24 Admonition is generally appropriate when a lawyer negligentlyreveals information relating to representation of a client nototherwise lawfully permitted to be disclosed and this disclosurecauses little or no actual or potential injury to a client.

Petitioner submits that this panel should rely on 4.21 to revoke Mr. Cotes license topractice law for 18 months, citing numerous aggravating factors for the panels

18

consideration. By contrast, Mr. Cote asserts that his was a single incident of an honest

misapprehension of the law, which merits no more than an admonition under 4.23.After careful consideration of all of the facts of this case and of the compelling

arguments raised by counsel for Petitioner and Respondent, this panel is convinced that

the most appropriate Standard applicable to this case is actually 4.22, providing for the

suspension of Mr. Cotes license. As explained more fully, below, this decision does not

derive from any attempt at a King Solomon appeasement of both sides. Rather, it is

the result from careful and thorough review of the entire record, including aggravating

and mitigating factors of Mr. Cotes conduct, while keeping in mind the paramount

importance of protecting the public and profession while not succumbing to the

parochial or self-interested concerns of even the most distinguished lawyers among us.

One simply cannot ignore Mr. Cotes long and distinguished career when

considering the Petitioners suggestion that his license to practice law be revoked for at

least 18 months. By all accounts and as attested by six fellow attorneys from around

the State, each of whom described both a wonderful lawyer and human being this

unfortunate event is but a single scar on an otherwise stellar career. To have practiced

law for 45 years without so much as a hint of unethical behavior is something to be

celebrated and unfortunately something that came to an end when Mr. Cote allowed

his self-interest and admitted obsession to interfere with the moral compass that seems

to have served him so well until August 2005.

Nevertheless, his violation of the MRPC was significant and dramatic. Of all

people, he should have known that he was crossing the line and allowing his own

interest to cloud his judgment. Of all people, he should have realized that when a client

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says to stop making public statements, a reasonably prudent lawyer stops. Of all

people, he should have known that his own cravings for publicity, or for solving the

mystery, or for whatever else he thought he was doing when he appeared on the Greta

Van Susteren Show while a grievance was pending against him for making public

statements about that case was not a prudent decision. Even his wife, a non-

attorney, warned him that he should be careful about making public statements

concerning the case!

Because of his failure to heed the many warning signs that were placed in his

path; because of the extreme and continuing trauma that his actions have caused to the

Rutherfords; because of his conscious disregard for the disciplinary system in which he

has served and practiced for decades; and because our profession simply cannot

tolerate the threat to the public if attorneys are allowed to place their own self-interest

above the express wishes of their clients, this panel concludes that a suspension of

Respondent John L. Cotes license to practice law is necessary and appropriate.

CONCLUSION

For the reasons summarized above, the panel unanimously concludes that

Respondents license to practice law in Michigan should be suspended for forty-five

(45) days; that prior to and as a condition of reinstatement, Respondent must notify allmedia outlets with whom he discussed this case that his license has been suspended

because he was found to have made those comments improperly and without authority,

and must request that the television shows on which he appeared redact his

appearance and statements from all future re-telecasts of the episodes; and that he

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must provide copies of all such correspondence and any responses thereto to the

Attorney Grievance Commission to assure compliance with this requirement.

Dated: June ~, 2008 ATTORNEY DISCIPLINE BOARDKen ~ounty Hearing~nel#1

By /~Martha E. Refrmon~Chairperson

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ADDENDUM A

GRIEVANCE ADMINISTRATOR v JOHN L. COTE, CASE NO. 07-83-GA

ITEMIZATION OF COSTS

Attorney Grievance Commission:(See Itemized Statement filed 06/05/08) $1,317.22

Attorney Discipline Board:Hearing held 07/13/07 $ 78.20Hearing held 08/31/07 $ 877.70Hearing held 09/18/08 $ 646.50Hearing held 04/01/08 $ 80.20Hearing held 05/22/08 $ 790.50

Administrative Fee [MCR 9.1 28(B)(1)] $1,500.00TOTAL: $5,290.32