Findings of Kent County Hearing Panel #1 Regarding Attorney Misconduct

STATE OF MICHIGANATTORNEY DISCIPLINE BOARD

LiLLI;mUiUiL.r :12::11',1: ':,P,D

08 JAN 16 Pi'! I: 59

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

FINDINGS OF KENT COUNTY HEARINGPetitioner, PANEL #1 REGARDING ATTORNEY

MISCONDUCTv

JOHN L. COTE', P-12249,

Respondent./

PRESENT: Martha E, Reamon, ChairpersonBruce A. Courtade, MemberKevin J. O'Dowd, Member

APPEARANCES: Patrick K. McGlinn, Associate Counselfor the Attorney Grievance Commission

John L. Cote', RespondentIn pro per

Introduction

Two hearings have been held in this matter; the first on August 31, 2007, on the

subject of whether an attorney-client relationship existed between Respondent and theRutherfords. This panel concluded that an attorney-client relationship did exist, for

reasons stated in its written opinion dated September 12, 2007. A second hearing was

held on September 18, 2007 on the issue of attorney misconduct, and for reasons

discussed below, it is the unanimous opinion of these panel members that Respondent

did commit violations of the Michigan Rules of Professional Conduct (MRPC); mostspecifically MRPC 1,9(c)(1) and (2) and MRCP 8.4(a); and Michigan Court Rules (MCR)9.1 04(A)(3) and (4).

Factual Overview

The subject grievance arises out of the Respondent's conduct as legal counselon behalf of Charles Rutherford, Sr. ("Mr. Rutherford") and Patricia Rutherford

(collectively referred to as "the Rutherfords") following the tragic disappearance of theirson, Charles Rutherford, Jr., on August 11, 2005, The facts surrounding this tragic

incident are thoroughly summarized in the parties' Hearing Briefs and exhibits and wil

not be repeated herein. Based upon the evidence presented in connection with the two-

hearings referenced above, including stipulated exhibits introduced at the time of

hearing, the panel accepts the following facts as undisputed:

August 10, 2005: Charles Rutherford, Jr. ("Charles") and LanaStempien ("Lana") depart Belle River, Ontario, aboard Lana's boat, theSea's Life, on a trip from the Detroit area to Mackinac Island, Michigan.

August 12, 2005: The Sea's Life is found adrift in Northern Lake Huron,engine stil running, with neither Charles nor Lana aboard. Althoughthe State Police, Cost Guard and various family members initiatedsearch and rescue operations, neither Charles nor Lana were foundanywhere near the boat.

August 18, 2005: A Detroit News story reported on the missing couple,calling it a "mystery."

August 20, 2005: Respondent first offered his services to theRutherfords via a phone calL. He mailed the introductory packet thissame date,

August 24, 2005: The Petoskey News-Review reported that theMichigan State Police ("MSP") dive team search resumed after aboutten days.

August 25, 2005: The Detroit News reported that the boat's GlobalPositioning System ("GPS") device provided no assistance,

August 26,2005: Lana's body is discovered and identified.

August 26, 2005: The Detroit News reported that a member of Lana'sextended family (Keith Crowley) indicated that the Stempien family wasnot convinced her death was an accident. Respondent was quoted as

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indicating that foul play was a "possibility", but that "we don't haveevidence of that,.. "

August 28, 2005: The Detroit News reported the opinion of anothermember of Lana's extended family (Joe Crowley): "I do believe therewas foul play" because "(Lana) was an experienced boater." KerryCrowley also stated that "we have serious concerns" and "The family isnot satisfied with the accident theory,"

September 2, 2005: The Detroit News reported that the MSP called offfurther searches by their dive team.

September 13, 2005: Attorney Michael G. Cumming ("Cumming"), onbehalf of the Rutherfords, formally terminated their attorney-clientrelationship with Respondent by declining his offer to continue hiswork, which had been offered on a pro bono basis, in exchange forpayment of a reduced fee for all of the work he had done up to thatpoint.

September 16,2005: The Detroit News ran a story, opining that "Thereare plenty of theories, too. Maybe it was a tragic accident. But somefriends and family members suggest foul play - that others wereinvolved." Respondent advised that he had just been asked to ceasehis involvement and is quoted as "i kept asking questions and askingquestions, and all of a sudden, they no longer needed my services."

November 2005: Respondent was interviewed for Dateline NBC,ostensibly as a neutral expert who is or was privy to the case's details.In pertinent part, Respondent stated that: it was possible that someonepushed Lana overboard; that foul play was at least a 50/50 probabilityand very high on the agenda; that he would have expected Charles tohave been found near Lana; suggested that a struggle took place dueto the GPS knob in the sole of Lana's shoe; that the problems with theGPS indicated that somebody did not want anyone to know where theboat had been; and that there was no evidence that a former client ofCharles (or anyone he had previously prosecuted) was out for him.

. December 2005: Respondent was interviewed by John Tunison of TheGrand Rapids Press, again as an expert in these matters andsomeone who was privy to the details of the investigation, and assomeone who Dateline NBC similarly interviewed for the upcomingstory, Respondent stated to Mr. Tunison that "All of the evidence addsup to it not being accidentaL." Mr, Tunison also spoke with DatelineNBC producer Benita Noel who stated that Respondent was sough toprovide an unbiased analysis of the evidence.

December 11, 2005: The Grand Rapids Press ran the Tunison story.

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Early January 2006: Respondent was interviewed by Mike Lewis ofHour Magazine.1 Respondent expressed a belief that Lana's death wassuspicious; that she did not drown accidentally; discussed details ofthe investigation; suggested that there were two possibilities - foul playby a third party or by "the person on board" (i.e. Charles) - that wouldaccount for Lana's death; and suggested that Charles was either at thebottom of the lake or alive and walking around somewhere. He alsoadded that he felt that "the key to solving the case lies in the personalrelationship between the two of them" (i.e., Charles and Lana).

January 12, 2006: The Petoskey News-Review reported that somelocal people would appear on a Dateline NBC segment to air soon,

January 13, 2006: The Dateline NBC segment aired,

January 14, 2006: The Detroit Free Press reported that Charles "hadtaken a drubbing in the rumor mill - with innuendos that he may havefled and is hiding, and that he was somehow responsible for the deathof (Lana). . ,"

January 18, 2006: Respondent appeared on Rita Crosby Live andDirect, again as an expert insider with details of the case, and opinedthat foul play "by the other individual on the boat" (i.e. Charles) or athird party were the only two possibilities to explain what hadhappened to Lana, He also discussed statements allegedly made byLana's friends regarding her (Lana's) concerns as to Charles, as wellas a tear on the bottom of Lana's shoe which he implied must havebeen made with great force.

February 13, 2006: The Detroit Free Press ran a story indicating that awitness had come forward relating an incident in which he allegedlywitnessed Charles acting abusive toward Lana at a Detroit casino.

Late March/early April 2006: The April issue of Hour, containing theMike Lewis story on the Stempien/Rutherford mystery, hit the stores,

July 2006: Respondent was interviewed for On the Record with GretaVan Susteren, again as an expert with intimate knowledge of thedetails of the matter. Respondent discredited the accident theory; andasserted that foul play was likely, that the MSP should have treated theboat like a crime scene, and that both bodies should have been foundtemporally and geographically near each other. Respondent said therewas no history of piracy or rogue boats in the area.

1 He would be re-interviewed by Mr. Lewis later the same month,2 Hour Detroit, April 2006, at p. 56,

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August 4, 2006: The Detroit Free Press ran a story about Charlesbeing declared dead by the Presque Isle Probate Court.

September 2006: the On the Air with Greta Van Susteren segment aired.

As noted in Petitioner's closing Brief, both Mr. Rutherford and Mr. Cumming

testified that there was news media coverage of the matter before and after Respondent

became involved, and obviously after he was no longer involved. They testified that the

Dateline NBC show (aired in January 2006) presented a watershed moment, in that thestory was no longer reported as a mystery with or without theories abounding, but it was

now reported as an unsolved mystery with Charles being a suspect.

Respondent, on the other hand, testified that he was merely reporting on facts

and evidence already generally known and being commented upon by others involved

in this investigation, and that he did not reveal any information relating to his

representation of the Rutherfords to his client's disadvantage (though Respondentdenies an attorney-client relationship existed between himself and the Rutherfords), Tothe extent Respondent inferred the possibility of foul play on the part of Charles

Rutherford, Jr., by reporting to media sources that this theory could not be ruled out

based upon the evidence, Respondent maintains that this was a view shared and

commented upon by others involved in the investigation; that this was a view generally

known to the concerned public; and was based upon evidence within the public domain

as opposed to information received from the Rutherfords.

At Respondent's request, a deposition was taken in this matter following the

second hearing of Attorney Andrew Jarvis, who represented the Stempien family. Mr.

Jarvis testified in deposition that there was a fair amount of coverage before and after

Respondent's involvement. He mentioned one or two radio call-in shows (WRIF's Drew

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and Mike morning show and a show on WJR) on which there was much speculationabout the case being openly discussed. Attorney Jarvis further testified that he believed

that anything Respondent stated to the media was either public knowledge or was

information not received from the Rutherfords, but from the Stempiens.

A. Leqal Analysis of MRPC 1.9(c)

The analysis of this case is controlled by the language of MRPC 1.9(c) (1) and

(2), which provide in pertinent part:A lawyer who has formerly represented a client in a matter. . . shall

not thereafter:

1. use information relating to the representation to the disadvantage ofthe former client except as Rule 1.6 or Rule 3.3 would permit or requirewith respect to a client, or when the information has become generallyknown; or

2, reveal information relating to the representation except as Rule 1.6or Rule 3,3 would permit or require with respect to a client.

1. MRPC 1.9(c) does not require the disclosure or use ofattorney-client confidences.

The panel agrees with Petitioner that there is an important distinction between

the ethical limitations imposed on attorneys by MRPC 1.9(c) and the separate issue ofwhat constitutes a breach of an attorney-client privilege. Whether information is treated

as confidential for purposes of the attorney-client privilege is a separate analysis than

what is presently before the panel under MRPC 1.9(c). Thus, to the extent Respondenthas argued that the information he received was not protected by the attorney/client

privilege and, therefore, he was free to discuss or reveal this information, the panel

rejects that argument as immaterial to whether a violation of MRPC 1.9( c) occurred,

As noted in Petitioner's closing brief, MRPC 1,9(c) does not use the terms"confidences", "material subject to the attorney/client privilege", or similar phrases.

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This panel accepts as authoritative the cases cited and discussed on pages 8 and 9 of

Petitioner's closing brief and concludes that the ethical considerations under MRPC

1.9(c) are much broader and not controlled by whether the information would beprotected under an attorney-client privilege. An attorney can be found to have violated

MRPC 1.9(c) by improperly disclosing "information related to the representation" withouthaving to show that an attorney-client privilege was breached.

2. The exceptions of MRPC 1.6 and 3.3 do not apply.

Application of MRPC 1.9(c) (1) and (2) both permit exceptions as MRPC 1.6 and3.3 would allow, Petitioner argues that the exceptions for MRPC 1.6 set forth in

subparagraph (c) do not apply because: (1) Respondent did not have consentof the Rutherfords; (2) Respondent was not required by law or court order to make thedisclosures; (3) there was no fraudulent behavior by the Rutherfords forRespondent to rectify; (4) there was no intended crime of the Rutherfords toprevent; and, (5) the disclosures were not made for a fee dispute or to defendallegations that Respondent acted wrongfully, Given the facts of this case and the

evidence presented, the panel agrees that the objections to MRPC 1.9(c) do not apply.3. Determining when a violation of MRPC 1.9(c) occurs.

MRPC 1,9(c)(1) is violated whenever an attorney improperly uses (to a formerclient's disadvantage) the "information relating to the representation." This occurs attime of disclosure and the "generally known" exception is to be considered and

determined at the time of "use". MRPC 1,9(c)(2) is violated when an attorney revealssuch information, and it contains no exception for information "generally known."

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Further, the panel agrees with Petitioner that MRPC 1.9(c) contains no temporalrestriction on the information: it is not limited to information obtained during the

representation but could include information obtained before or after the representation.

This is consistent with the view that MRPC 1.9(c)'s ethical constraints are much broaderthan the issue of whether an attorney-client privilege or confidence has been breached,

4. Determining what is "generally known" as an exception toMRPC 1.9(c)(1).

Petitioner correctly points out that "generally known", as an exception to

MRPC 1.9(c)(1), is not defined within the Rule or the comment. Therefore, onemust look at its plain, commonsense meaning. As the Michigan Supreme Court

recently stated:

We note that (MRPC 3,5(c)) does not provide a definition of theword "toward." It is well established that if a term in a court rule isnot defined, we interpret the term in accordance with itseveryday, plain meaning.3

For purposes of the present matter, the panel agrees that the most helpful

analysis of the term "generally known" in this context is that discussed in the

Restatement of Law Governing Lawyers 59(d), which provides in pertinent part:At the same time, the fact that information has become known to someothers does not deprive it of protection if it has not become generallyknown in the relevant sector of the public.

Whether such information is generally known depends on allcircumstances relevant in obtaining the information, Informationcontained in books or records in public libraries, public-recorddepositories such as government offices, or in publicly accessibleelectronic-data storage is generally known if the particularinformation is obtainable through publicly available indexes and similarmethods of access. Information is not generally known when a person

3 Grievance Administrator v Fieger, 476 Mich 231, 250 (2007), citing People v, Petit, 466 Mich, 624,

627,648 NW.2d 193 (2002), (Emphasis added),

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interested in knowing the information could obtain it only by means ofspecial knowledge or substantial difficulty or expense. Special knowledgeincludes information about the whereabouts or identity of a person orother source from which the information can be acquired, if thosefacts are not themselves generally known.

A lawyer may not justify use or disclosure of clientinformation simply because the information has becomeknown to third persons, if it is not otherwise generallyknown.., (Emphasis added).As noted in the Restatement above, it is not enough for Respondent to establish

that others involved with or connected to the subject investigation knew the informationrevealed (i.e. the evidence which Respondent claimed suggested foul play), Rather, toqualify for an exception under MRPC 1,9(c)(1), the panel believes Respondent wouldneed to establish that obtaining this same information would not require special

knowledge, such as that acquired by those involved or connected to the subjectinvestigation; but rather, that members of the media viewing public would have equal

access to this information and could obtain this same information without substantial

difficulty or expense. The panel believes that Respondent failed to make this showing

and the subject information was not "generally known", as further discussed below.5. Petitioner's Specific Allegations.

Petitioner alleges specific acts of misconduct on the part of the Respondent

under ir 54 of the formal Complaint, which are individually analyzed below. Petitioner

made several preliminary observations regarding these claims in its closing brief, which

are repeated herein,

First, Petitioner argues that Respondent's use of the term "foul play" was

detrimental to Charles Rutherford, Jr. and, by implication, to his family. Petitioner

asserts that "foul play" was an implicit condemnation of Charles, Jr. According to

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'--.,.

Petitioner, this intent was made evident by Respondent's statements to the media.

While Respondent did not expressly blame foul play by Charles on Dateline NBC, his

statements on that show, to John Tunison, Mike Lewis, and Rita Crosby (which alloccurred in a similar time frame), and later to Greta Van Susteren, evidence that hebelieved it likely that Charles was involved in Lana's death, Respondent admitted at the

hearing that he never considered a theory where Lana was at fault, rather only Charles

Rutherford, Jr, or other third parties.

Petitioner claims that Respondent's belief that Charles Rutherford, Jr. is

implicated in the death of Lana is further borne out by Respondent's reaction to the

Rutherfords' decision to terminate his services. Petitioner claims that Respondent

insinuated that his termination by the Rutherfords had something to do with their being

uncomfortable with the way in which the evidence may have implicated their son.

Respondent was quoted in the December 19, 2005 Detroit News "I kept asking

questions and asking questions, and all of a sudden, (the Rutherfords) no longerneeded my services," As Respondent stated in his Answer to the formal Complaint:

Because of the possibility of foul play on the part of some thirdperson or persons, Respondent has been puzzled as to why theparents of Chuck seem unwillng to have Respondent, or someone,follow up and look for answers or explanations of whathappened to their son.

If anything, i would have expected Charlie to say: "JACK, WE WANTYOU TO KEEP SEARCHING FOR ANSWERS, FOR AN EXPLANATION.WE WON'T REST UNTIL WE KNOW WHAT HAPPENED TO CHUCKAND WHY."

But obviously that has not been the case.

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The Stempiens, on the other hand, have said, principally to Andrew Jarvis,"Keep searching for the facts. We want answers. We want anexplanation,,,4

Regardless of the Respondent's intent, the panel concludes that his repeated

reference to the possibility of foul play did have the effect of placing Charles Rutherford,

Jr., and by implication the Rutherford family, in a negative light and certainly under

intense media scrutiny, despite their stated desire to avoid media publicity. The panel

also concurs with Petitioner that Respondent's statements to the media (especiallythose eliminating certain possible causes of Lana's death and Charles' disappearance;

offering an opinion that foul play was the most likely cause based upon the evidence;

that the key to solving the mystery was to examine Charles' and Lana's personal

relationship; and that Lana's friends had given statements indicating trouble with that

relationship) may have had adverse legal ramifications to the Rutherford family, such asby casting doubt upon and/or discrediting legitimate legal causes of action, or

defenses to potential causes of action, which the Rutherfords may have pursued or in

the future may still pursue. 5

This opinion will now address some of the specific allegations contained within

the Petitioner's Complaint and the panel's findings regarding same:

Allegations 54(a) and (b): Through his statements on Dateline NBC (i32 of theComplaint), Respondent proclaimed, as information based upon facts a conclusionthat Charles could be responsible for Lana's death with a motive of foul play, thereby

4 Answer to Formal Complaint, 1143; emphasis added,

5 Indeed, Panel Member Courtade finds himself at a ioss for any reading of this response, and ofRespondent's numerous statements identifying Charles Rutherford, Jr, as a possible cause of LanaStempien's death, that would not be disadvantageous and hurtful to Respondent's former clients, theRutherfords,

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using information relating to the representation to the disadvantage of the former client

and revealing information relating to representation, in violation of MRPC

1.9(c)(1 )and(2).

Analysis of 54(a) and (b): Petitioner argues that prior to Respondent'sNovember 2005 interview for Dateline NBC, the media coverage had, as Mr.

Rutherford and Attorney Cumming testified, largely reported the event as

a mystery with odd circumstances. The media exhibits introduced at hearing did

establish that "foul play" was repeatedly mentioned as a theory in subsequent

media reports. Respondent presented no contradicting evidence,

According to Petitioner, Respondent's statements on Dateline NBC went

beyond mere gossip. Rather, Respondent was an individual who had been closely

involved in the investigation, was recognized as an attorney and expert in the areas of

admiralty and maritime law and was therefore cloaked with authority, For instance,

television producer Benita Noel noted in the Mr. Tunison's Grand Rapids Press article

that Respondent was sought to give an unbiased analysis of the evidence. Petitioner

argues that Respondent was intimately familiar with the details of the investigation,

and was not offering opinion based solely on news stories that he had read - rather

he offered an "insider's" or "expert's" opinion. He used information known to him

due to his "insider status" to formulate and publicize his opinion that foul play was likely,

The conclusion of foul play was not previously known to the media viewing public to be

supported by facts, and Respondent used previously not-generally known facts to form

that opinion. These opinions gained credibility in large part due to Respondent's status

as an attorney and expert in the area, and his intimate involvement in the investigation,

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The panel finds that these allegations are supported by the evidence and not

refuted by Respondent. Accordingly, given the evidence summarized above, the panel

concludes that Respondent did violate MRPC 1.9(c)(1) and (2), as alleged underir 54(a) and (b) of the Complaint, by using and revealing information related to therepresentation which was not generally known to the disadvantage of the client

Allegations of 54(c) and (d): Through stating on Dateline NBC that no

one has identified former defendants prosecuted by Charles Rutherford, Jr, who may

have a vendetta against him (ir 32(b)(iii) of the Complaint), he used information relatingto the representation to the disadvantage of the former client and he revealed

information relating to the representation, in violation of MRPC 1.9(c)(1 )and(2).

Analysis 54(c) and (d): Through the evidence presented, Petitionerestablished that nowhere in the media exhibits, or in the testimony of Attorney

Jarvis, was there any other mention of former defendants prosecuted by Charles

Rutherford, Jr. It was shown that Respondent revealed this fact, and Petitioner

argues its purpose was to discredit third party foul play and to focus the foul play

spotlight on Charles Rutherford, Jr.

Regardless of Respondent's intent, the panel concurs that these statements

likely had the effect of focusing the foul play spotlight on Charles Rutherford, Jr. The

panel further concurs that the "use" consideration is subject to an analysis of

"generally known", and the subject item (the lack of evidence concerning third partyfoul play on the part of former defendants prosecuted by Charles Rutherford, Jr.) wasnot generally known,

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The panel finds that these allegations were supported by the evidence and not

refuted by Respondent. Accordingly, given the evidence summarized above, the panel

concludes that Respondent did violate MRPC 1.9(c)(1) and (2), as alleged under ir 54(c)and (d) of the Complaint, by using and revealing information related to therepresentation which was not generally known to the disadvantage of the client.

Allegations 54(e) and (f): Through Respondent's statements to John Tunisonthat all of the evidence adds up to it not being accidental (ir35 of the Complaint),he used information relating to the representation to the disadvantage of the former

client and he revealed information relating to the representation,

Analysis of 54(e) and (f): Petitioner argues that because thedisclosure Respondent made to Dateline NBC had not yet been aired, the alleged

statements had not become generally known. The media had not yet reported

that the accidental theory was factually unsupported, Again, while relatives of

Lana (notably the Crowleys) had publicly stated and been quoted that the family wasnot satisfied or did not believe in the accident theory, Petitioner claims that Respondent

was the first one to publicly "use" the evidence to reach this conclusion, His statement

to Tunison expressly predicated his conclusion on "all the evidence", Further, Petitioner

argues that from his previous and yet-unreleased statements to Dateline NBC, it is clear

that Respondent was utilizing not-generally known information (such as the lack ofprior vindictive defendants) to reach this conclusion.

The panel finds that these allegations were supported by the evidence and not

refuted by Respondent. Accordingly, given the evidence summarized above, the panel

concludes that Respondent did violate MRPC 1.9(c)(1) and (2), as alleged under

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ir 54(e) and (f) of the Complaint, by using and revealing information related to therepresentation which was not generally known to the disadvantage of the client

Allegations 54(g) and (h): Through his statements to Mike Lewis (~38 of the

Complaint), Respondent proclaimed, as information based upon facts, a conclusion thatCharles could be responsible for Lana's death, and still be living, presumably in hiding,

thereby using information relating to the representation to the disadvantage

of the former client and he revealed information relating to the representation, in

violation of MRPC 1.9(c)(1 )and(2).

Analysis of 54(g) and (h): Evidence introduced at time of hearing establishedthat Respondent's first interview with Mike Lewis was before the Dateline NBC show

aired and, therefore, before those statements became generally known. Thus,

Petitioner argues that, as with the Dateline NBC program, it is clear that Respondent

was not being interviewed as someone to provide mere guesses, but rather as an

insider/expert intimately familiar with the investigation. As the Hour magazine article

stated, "In August, (Respondent) offered his services to both families and found muchthat gave him pause" and "(c)iting some disturbing discoveries and curious informationthat would soon surface in the investigation, he's convinced: 'I don't think she

drowned accidentally,"'6 According to Petitioner, Respondent shared with Mike Lewis

information that he and attorney Jarvis had disclosed to Dateline NBC, but which had

not yet aired, The Hour story would not be published until after Dateline NBC aired.

Petitioner claims that Respondent used the facts of the investigation to posit that

not only couid Charles be at fault, but that he could stil be alive and walking around.

6 Hour Detroit, April 2006, at p, 54, first and second full paragraphs (emphasis added),

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According to Petitioner, this conclusion had not yet been offered as one based upon

facts, but rather, as mere speculation or gossip. The media articles that predated this

disclosure contain no such documented assertion. As with Dateline NBC, which had not

yet aired, Respondent now gave speculation the appearance of factual legitimacy. To

do so, he used not-generally known facts such as the allegations of a problematic

personal relationship between Lana Stempien and Charles Rutherford, Jr.

The panel finds that these allegations were supported by the evidence and not

refuted by Respondent. The panel further finds that the subject statements did take onan appearance of factual legitimacy by nature of Respondent's status as an attorney, as

an expert in the area and as a knowledgeable individual intimately involved and familiar

with the investigation. Indeed, the panel believes that Respondent's status as the

Rutherfords' former attorney gave his media statements a heightened air of credibility,

which is likely why he was sought out by the media. In turn, this unique status made his

implicit and explicit accusations concerning Charles' possible involvement in Lana's

death that much more dramatic and damaging to his former clients, the Rutherfords,

Accordingly, given the evidence summarized above, the panel concludes that

Respondent did violate MRPC 1.9(c)(1) and (2), as alleged under ir54(g) and (h) of theComplaint, by using and revealing information related to the representation which was

not generally known to the disadvantage of the client

Allegations 54(k) and (I): Through his statements on Rita Crosby (see 1143 of

the Complaint), Respondent proclaimed, as information based upon facts, a conclusionthat Charles Rutherford, Jr. could be responsible for Lana Stempien's death, thereby

using information relating to the representation to the disadvantage of the former

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client and revealing information relating to the representation, in violation of MRPC

1.9(c)(1 )and(2),

Analysis of 54(k) and (I): Petitioner argues that at the time of the Rita CrosbyLive show, the Dateline NBC segment had aired, but the Hour magazine article had not

been published (containing Respondent's comments). According to Petitioner, tothe extent that he was not perfectly explicit on Dateline NBC, Respondent now fully

included Charles in the scope of foul play by stating that there were only two

possibilities - foul play by a third party or foul play by "the other individual on the

boat." Petitioner correctly points out that Respondent testified at hearing that he

never considered Lana as a "suspect", so necessarily the "other individual" was a

reference to Charles Rutherford, Jr,

Petitioner further argues that as with the Dateline NBC and the Mike Lewis

analysis, Respondent was using information relating to the representation to

conclude or at least infer foul play by Charles Rutherford, Jr., a conclusion

that was not previously known to be supported by facts, The panel findsthat these allegations were supported by the evidence and not refuted by Respondent

Accordingly, given the evidence summarized above, the panel concludes that

Respondent did violate MRPC 1.9(c)(1) and (2), as alleged under ir54(k) and (i) of theComplaint, by using and revealing information related to the representation which was

not generally known to the disadvantage of the client

Allegations 54(m) and (n): Through his statements on Greta Van

Susteren that the area of Lake Huron where the event occurred was not known

for "piracy" and that there were no reports of "rogue boats" (see ir50(i)and(j) of

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the Complaint), he used information relating to the representation to thedisadvantage of the former client and revealed information relating to the

representation, in violation of MRPC 1.9(c)(1 )and(2),

Analysis of 54(m) and (n): Petitioner argues that upon careful review ofthe Dateline NBC tape (which considerably predated the Greta Van Susterenshow), Respondent had previously disclosed that "piracy" was not known to takeplace on Lake Huron. Accordingly, Petitioner stipulates to the dismissal of the

claims asserted in iT54(m) of the Complaint.However, Petitioner argues that the observation of no sightings of rogue

boats is not mentioned in the media prior to Greta Van Susteren airing.Petitioner further argues that while the information arguably may be contained,

by inference, in the lack of police and coast guard reports/complaints, it was

still nevertheless not generally known to the media viewing public,Consequently, Petitioner claims Respondent publicly "used" and "revealed"

this information obtained through his representation as support for hisconclusion that foul play on the part of Charles Rutherford, Jr. was likely.

The panel finds that these allegations were supported by the evidence and not

refuted by Respondent. Accordingly, given the evidence summarized above, the panel

concludes that Respondent did violate MRPC 1.9(c)(1) and (2), as alleged under 1l54(n)of the Complaint, by using and revealing information related to the representation which

was not generally known to the disadvantage of the client

Allegation 54(0): Through his statements in iT1l32, 35, 38, 43, and 50 of theComplaint, Respondent acted in violation of MRPC 8.4(a) and MCR 9.104(A)(4).

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..-.-.....

Analysis of 54(0): The panel concludes that its prior findings of aviolation of MRPC 1.9(c)(1) and (2), as summarized above, support a finding ofattorney misconduct under MRPC 8.4(a) and provide grounds for disciplineunder MCR 9.1 04(A)( 4).

Allegation 54(p): Through his statements in 32, 35, 38, 43, and 50 of theComplaint, Respondent engaged in conduct exposing the legal profession to

obloquy, contempt, censure or reproach in violation of MCR 9.104(A)(2).Analysis of 54(p): The panel does not make a finding of a separate violation

under MCR 9.1 04(A)(2).

Allegation 54(q): Through his statements in ir ir 32, 35, 38, 43, and 50 of theComplaint, Respondent engaged in conduct contrary to justice, ethics, honesty,or good morals in violation of MCR 9.1 04(A)(3).

Analysis of 54(q): As discussed more fully below, the panel finds thatRespondent's conduct constitutes a violation of MCR 9.1 04(A)(3).

B. Leqal Analysis of MCR 9.1 04(A)(3)

1. MCR 9.104(A)(3) - Generally.MCR 9.104(A)(3) provides that conduct "that is contrary to justice, ethics,

honesty or good morals" are "misconduct and grounds for discipline, whether or not

occurring in the course of an attorney-client relationship," The facts of this grievance, as

set forth over two days of hearings and through the parties' respective pleadings and

briefs, reveal a continuing pattern of conduct by Respondent that falls squarely within

this Rule's prohibitions.

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2. Respondent's Actions and Statements Contravene Justice andEvidence Dishonesty,

Respondent's version of the nature and scope of his representation of the

Rutherfords and the circumstances surrounding the termination of that representation

has been contradicted not only by the testimony of other witnesses, but by

Respondent's own words and conduct. Although the above Findings focused on other

matters raised during the second day of hearings, the issue of whether Respondent had

an attorney-client relationship with the Rutherfords bears on his violation of MCR 9,104,

and therefore must be revisited,

At various times throughout this proceeding, Respondent has asserted as his

primary defense that he had no attorney-client relationship with the Rutherfords.

However, that assertion is refuted by the following facts and evidence:

All of the correspondence that Respondent sent to the variouswitnesses, experts, consultants, etc" was sent on letter identifying it ascoming from the office of "John L. Cote, P.L.LC" Attorney & Counselorto the Legal Profession;" faxes came from "John L. Cote, P.LL.C,Attorney & Counselor at Law."?

Respondent wrote to Speckin Forensic Laboratories on August 26,2005:

I now have a new case and enclose an article that appeared in theDetroit News recently,

I represent on a pro bono basis the familes of the two missingpeople.8

. Once the Rutherfords began to question some of Respondent's actionsthat contravened their wishes, Respondent sent a letterg claiming thathe did not represent the Rutherfords, but actually represented bothfamiles:

7 See, e,g., Exhibits ## 1, 2, 5, 8, and 9,6 See, Exhibit # 9, (Emphasis added),9 See, Exhibit #2,

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"My feeling was that I was not working for one family or the other,but for both.

I have not been retained by anyone, nor do I wish to be retained orpaid for by my services, nor do I expect to be paid for my servicesat this point","

. Despite his assertion that he was representing both families (with nosigned conflct waiver, arguably a violation of MRPC 1,7), whenRespondent wrote to Speckin Forensic Laboratories on August 26 andagain on September 1, 2005, he sent copies of that correspondenceonly to the Rutherford's personal attorney, Mr. Cumming, and not toany of the Stempien family or anyone representing their interests,10

. Any doubt about which of the families he was representing wasquashed once and for all by a letter from attorney Donald G. Campbell,dated September 6, 2005, in which Mr. Campbell sought to "clarify anymisunderstanding that may exist" as the result of reports thatRespondent had "identified yourself as working with and/or on behalf ofLana's family." According to Mr. Campbell's letter, "", the Stempienfamily has not authorized you to act on their behalf and does not wishyou to represent them or act on their behalf."

In sum, Respondent's claims about which parties he was representing, under what

circumstances, and his repeated assertion that he never established an attorney-client

relationship with the Rutherfords are implausible, incredible and lacking factual integrity.

Apart from whether there was an attorney-client relationship between

Respondent and the Rutherfords, though, the manner in which Respondent conducted

himself almost from the moment he became involved in this tragic affair undermines

basic tenets of honesty and justice that should serve as the underpinnings of our legalsystem and profession.

Respondent asserts that he initially offered his services to the Rutherfords on a

pro bono basis because of his friendship with Charles Rutherford, Sr. This is laudable.

10 See, Exhibits ## 9 and 10,

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At the time, the Rutherfords were dealing with the devastating and emotionally

crippling impact of losing their son in an apparent accident. Charles Rutherford, Sr., in

particular, testified regarding the impact this tragedy had on his ability to function on a

daily basis. Even after two years, Mr. Rutherford was overcome by emotions trying to

recount what he and his wife endured in the days immediately following Charles'

disappearance,

In this context, Respondent's offer of free legal assistance was likely seen as a

blessing, particularly given his self-proclaimed and generally acknowledged expertise in

missing boat cases. But for his offer to provide legal free legal assistance to his friend,

Charles Rutherford, Sr., Respondent never would have had access to the Stempiens or

to any of the information that he would later disclose so publicly.

Less than three weeks after gaining access to the families through a promise of

free legal assistance, Respondent sent a letter allegedly seeking to clear up confusion

regarding his representation, in which he offered to continue working for the Rutherfords

if they paid him $7,500 for all of the pro bono fees he had incurred to date. When that

"offer" was rejected, Respondent used the information and evidence that he hadgarnered through his pro bono representation to further his own interests, without

regard for the impact of his actions on his former clients.11 He publicly refuted claims

that might support a products liability action on behalf of the Estate of Charles

Rutherford, Jr.; he publicly singled out Charles Rutherford as a suspect in Lana

Stempien's death, while cloaking himself as an objective expert and insider familiar with

11 Indeed, Respondent knew that the Rutherfords wanted to avoid the media, See, his letter dated August29, 2005 (Exhibit #2): "I am aware of your feeling regarding wanting to maintain a Iowa profiie as possibleregarding the media. I share your concern,"

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the evidence surrounding the incident; and he implicitly accused his former clients, the

Rutherfords, of engaging in some sort of cover-up when he told the Detroit News that he

"kept asking questions and asking questions, and all of a sudden, they no longer

needed my services,,,12

MCR 9.1 04(A)(3) mandates that all Michigan attorneys practice in a manner thatis not "contrary to justice, ethics, honesty, or good morals,"

Justice requires that parents grieving the tragic loss of a child can depend on

their attorney not to publicly accuse their child of involvement in his girlfriend's murder. It

requires that those parents, approached in their grief by a self-professed "expert" in

nautical accident investigations, not have to see their attorney publicly disclose that he

had ruled out any possible cause of action based on defective manufacture or

maintenance of the boat. It requires that their attorney refrain from publicly accusing

them of being engaged in a cover-up when they reject his attempt to bill them for whathe had previously stated would be free legal services,

Honesty demands that Respondent, who had sent letters and conducted

interviews in which he identified himself as the Rutherfords' attorney, admit that there

was in fact an attorney-client relationship with them, and to honor the ethical constraints

placed upon him as a result of that relationship,

Instead, contrary to justice and honesty, Respondent engaged (and through hisunrepentant defense of this grievance, continues to engage) in conduct that isunbecoming of someone with his hard-earned and well-deserved reputation within the

Bar Association.

12 Respondent apparently chose not to disciose his request for payment for "pro bono" legal services as apossible basis for his termination,

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CONCLUSION

For the reasons summarized above, and with respect to the specific allegations

discussed above only, the panel concludes that Respondent violated MRPC 1,9(c)(1)and (2), MRPC 8.4(a), MCR 9.104(A)(3) and MCR 9,104(A)(4), but that Petitioner hasfailed to establish separate violations of MCR 9,1 04(A)(2).

Dated: January ~, 2008 ATTORNEY DISCIPLINE B DiKent ?~u~ty Hearing P-5n,1 #it ,:1 i'~' ,il,~ 'By ii .if Martha E, Reamon, hairpersonI

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