STATE OF MICHIGAN

ATTORNEY DISCIPLINE BOARD

08JUN25 Pfl 2:37

GRIEVANCE ADMINISTRATOR,
Attorney Grievance Commission,

Case No. 07-83-GA

OPINION OF KENT COUNTY HEARING
PANEL #1 REGARDING SANCTIONS
FOR ATTORNEY MISCONDUCT

Petitioner,
V

JOHN L. COTE, P-i 2249,

Respondent.
I
PRESENT:

Martha E. Reamon (P36459), Chairperson

Bruce A. Courtade (P41 946), Member
Kevin J. ODowd (P39383), Member

APPEARANCES:

Patrick K. McGlinn (P51558)

Associate Counsel for the Attorney
Grievance Commission
Jon R. Muth (P18138)
Counsel for Respondent
I

Introduction
This matter has been the subject of three days of hearings, beginning on August
31, 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 the
Complainants, Charles Rutherford, Sr. (Mr. Rutherford) and Patricia Rutherford
(collectively referred to as the Rutherfords). After another day of testimony, this panel
issued 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 be
imposed 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).

Those Exhibits include:

1.
2.
3.
4.
5.
6.
7.

September 19, 2007 correspondence from Leon J. Letter to Respondent (Bates 001 007).
October 30, 2007 fax from Mr. Letter to Respondent (Bates 008038).
curriculum Vitae of Respondent (Bates 039045).
May 7, 2008 correspondence from Respondent to Kent County Hearing Panel #1 and the
Rutherford family (Bates 046049).
May 8, 2008 correspondence from Michael E. Thomas to Respondent (Bates 050).
September 2007 Charlevoix Public Library Library Link (Bates 051 058).
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 into
evidence by either of the parties. However, both parties referred to them often during the course of the
hearing. Thus, they have been considered by the panel not as direct evidence, but as documentary
support for the testimony of the witnesses.

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 for

professionalism 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 (who
has taught professionalism and ethics to Cooley Law School students and has had Mr.

Cote teach segments of those classes to his students) stated that he would not have
made 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. Cote
wondered 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 attorneyclient 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 supporting
data 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.

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 that
he 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
incident in question

never had a grievance filed against him.

prior to the

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.

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 to
comment 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.

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.

Legal Analysis
1. The Applicable Standards Governing the Imposition of Sanctions for
Lawyer Misconduct Generally.
-

a. The Michigan Supreme Court Promotes Use of the ABA

Standards 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 of
a myriad of fact patterns in cases of lawyer misconduct. Rather, the
standards provide a theoretical framework to guide the courts in imposing
sanctions. The ultimate sanction imposed will depend upon the ~resence
of 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 the
ABA Standards is not an instruction to abdicate their responsibility to
exercise independent judgment. Where, for articulated reasons, the ADB
or a hearing panel determines that the ABA Standards do not adequately
consider the effects of certain misconduct, do not accurately address the
aggravating or mitigating circumstances of a particular case, or do not
comport with the precedent of this Court or the ADB, it is incumbent on the
ADB or the hearing panel to arrive at, and explain the basis for, a sanction
or 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 a
client.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.

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 special
responsibilities of self-government. The profession has a responsibility to
assure that its regulations are conceived in the public interest and not in
furtherance 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 legal
representation and of the law itself. Some of the rules are imperatives,
cast in the terms shall or shall not. These define proper conduct for
purposes of professional discipline.
The rules do not, however, exhaust the moral or ethical consideration
that should inform a lawyer, for no worthwhile human activity can be
completely defined by legal rules. The rules simply provide a framework
for 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 ADB
September 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.

(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, although
Mr. Cote was found to have violated MRPC 1.9(c)(1) and (2) and MRPC 8.4, the panel
considers 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 this
panels 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 and
Intentional.
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 for

guidance. 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 v
Meretsky, Case No. DP-244/82 (1984)) which discussed the violation of rules governing the disclosure of
client 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 actually
disclosed the information and continued to do so even after being asked to stop; and b) as discussed
infra, in assessing the unique facts of this matter, the panel concludes that the aggravating facts present
here 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 of
Professional 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 was
initially no retainer or discussion of fees. There was no discussion
regarding the scope of the representation. There was never a meeting or
discussion on the subject of the representation. No confidential
communications took place; the only conversation Jack had with a
member of the Rutherford family was with Charles at the Stempien
visitation. Though it is the hallmark of the attorney-client relationship, no
legal advice was requested and none was offered. Indeed, the vast
majority of the information Jack possessed came from sources other than
the Rutherfords. These factors are all the more significant given that
Charles Rutherford is himself a very able lawyer who was at all times
represented by very able counsel. Having the entire resources of Dykema
Gossett at his disposal, he certainly did not need Jack for legal advice.
Moreover, Jacks conduct as it related to the Rutherfords suggests his
belief that no attorney-client relationship existed. Everything Jack did was
consistent with a role as an investigator
he did no legal research,
prepared no memos, drafted no pleadings, wrote no opinions, never
communicated as an attorney with other counsel, and never counseled
with the Rutherfords. In fact, when Jack mentioned the possibility that the
Rutherfords consider retaining him as a lawyer, the relationship abruptly
came to an end.
-

All this is strongly indicative of two things: Jack never thought he was
acting as the Rutherfords attorney, and his belief, though ultimately
incorrect, 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 clearly
establishing an attorney-client relationship, and that Mr. Cote did, in fact, offer legal advice to the
Rutherfords 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 attorneyclient 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 financial
and 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 belief
must be objectively reasonable under the circumstances. Fletcher v Ed of Educ of
School Dist Fractional No 5, 323 Mich 343, 348; 35 NW2d 177 (1948)17 Thus, an
attorney like Mr. Cote, with extensive experience in representing attorneys and judges
before 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 finger
of 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 rebroadcast) television show which again pointed suspicious fingers at Charles
Rutherford, 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 an
attorney 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 Lana
Stempien 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 just
another voice adding to the story. It is his unique status (i.e., Sherlock Homes of
Maritime Law) and position of trust and guidance
of the Rutherfords

achieved through his representation

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 panel
considered 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 of
hearing that he perceives (and advertises himself) to be The Sherlock
Holmes of Maritime Law. To solidify that reputation and to expand
his reputation in the national media that exploded with the advent of
cable television
he placed his own interests above those of his
clients. Whether acting out of self-interest (i.e., to further embellish his
reputation) or out of an obsessive need to solve the mystery as he
and his counsel suggested, Mr. Cote ignored his clients express
wishes and caused them harm.

20
21
22

Pattern of Misconduct.22 One of the most troubling aspects of Mr.

Cotes behavior is that, despite repeated and admittedly understood
instructions from the Rutherfords to stop making public comments on
this matter, he chose time and time again to speak to (among others)
The Detroit News, The Grand Rapids Press, MSNBC, Hour Magazine,

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

15

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

23
24

Submission of False Evidence, False Statements or other Deceptive

Practices.23 The panel has stated and believes that Mr. Cotes
repeated statements that he was seeking answers that would benefit
both families are simply untrue. His repeated assertions that Charles
Rutherford could or should be considered a potential cause of Lana
Stempiens death in no way could help the Rutherfords; his public
announcement of ruling out potential causes of action likewise did not
help the Rutherfords; his suggestion that the key to the case was the
personal relationship between Lana Stempien and Charles Rutherford
(the man whom he had stated could still be walking around
somewhere) can p~jybe read to hurt the Rutherfords; and his selfserving report to the Detroit News that he was terminated after asking
too many questions for the Rutherfords liking was not only misleading
but could have in no way been intended to help his putative clients.

Refusal to Acknowledge Wrongful Nature of Conduct.24 Mr. Cotes

counsel suggested he was unaware of any precedent for a defendant
to be forced to give up a defense in order to avoid additional
punishment if he ultimately is found responsible for that offense. The
panel is persuaded by this argument under normal circumstances.
Had Mr. Cote simply declined to appear on the Greta Van Susteren
Show or to speak at the Charlevoix Public Library after receiving the
cease and desist letter and the formal grievance, his actions might
not justify an increase of the degree of discipline to impose. However,
where Mr. Cote seeks to insulate himself from recrimination by offering
his lengthy history of experience within the attorney discipline system,
but then shows his disregard for that system by continuing to engage
in the conduct for which he is being investigated and prosecuted, he
crosses a line and must accept responsibility for his conscious decision
to wager that his subjective and skewed interpretation of the MRPC
might be incorrect.

Vulnerability of Victim. As stated in the panels prior Finding, it is hard

to imagine more vulnerable clients than parents with a missing son
who not only have to cope with the idea that he might be dead, but
have to determine what to do with his law practice. In this regard, the
testimony of Mr. Cumming and Charles Rutherford, Sr. was extremely
compelling. Mr. Cote knew of this vulnerability, and offered to help.
Indeed, but for Mr. Cotes prior relationship with Charles Rutherford,

Standard 9.22(f).
Standard 9.22(g).

16

Sr. and his unique background investigating fatal boating accidents

involving missing persons, Mr. Cote would not have been invited to
participate in this investigation. Thus, Mr. Cote clearly appreciated the
vulnerabilities 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 involves
representing attorneys and judges in the disciplinary system. As he
stated repeatedly, of all people, he should have known that his public
statements against his clients express wishes were a violation of
his professional obligations.

The panel considered but rejected Petitioners contention that Mr. Cotes actions
should be considered multiple offenses under Rule 9.22(d). We believe that standard
applies 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;

17

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

His outstanding contribution to the legal community and service to the

State Bar of Michigan, its committees and local counterparts, in which
he has remained a valued and respected member throughout his long
and distinguished career, and;

The remorse that he expressed to the Rutherfords during his testimony

and his ultimate acceptance and regret over any harm brought on by
his conduct.
3. Rule 4.2 and the Presumptive Standards of Sanctions Applied to
Respondents 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 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.

4.22

Suspension is generally appropriate when a lawyer knowingly

reveals information relating to the representation of a client not
otherwise lawfully permitted to be disclosed, and this disclosure
causes injury or potential injury to a client.

4.23

Reprimand is generally appropriate when a lawyer negligently

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.

4.24 Admonition is generally appropriate when a lawyer negligently

reveals information relating to representation of a client not
otherwise lawfully permitted to be disclosed and this disclosure
causes 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 to
practice 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

19

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 all
media 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

20

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 BOARD

Ken ~ounty Hearing~nel#1
By

/~

21

Martha E. Refrmon~Chairperson

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)
Attorney Discipline Board:
Hearing held 07/13/07
Hearing held 08/31/07
Hearing held 09/18/08
Hearing held 04/01/08
Hearing held 05/22/08
Administrative Fee [MCR 9.1 28(B)(1)]
TOTAL:

$1,317.22

78.20
$ 877.70
$ 646.50
$ 80.20
$ 790.50
$1,500.00
$5,290.32