The consequences of unethical and unprofessional conduct.
ABSTRACTThe legal profession has established national and state professional codes of conduct applicable to those practicing law. Failure to adhere to the prescribed rules can result in serious consequences. A particular requirement is that attorneys must protect all information exchanged between both current and former clients. This article analyzes that requirement as applied to an incident of specific professional misconduct.
INTRODUCTION
In an age of egregious and unethical activities undertaken for personal aggrandizement, it is of some satisfaction to recognize that in certain professions there are established national and state standards setting forth rules of professional conduct. For example, the legal profession within all 50 states operates under regulations to assure that conduct complies with specific standards and unethical conduct faces pronounced consequences. Peer review boards consisting of co-professionals measure individual conduct against the standards and implement sanctions for violation of the professional rules.
In many situations, the misconduct and resulting injury to a client can be readily identified allowing for a complaint to be initiated by an injured party; but in other situations unethical conduct is cleverly obfuscated such that a person may suffer harm without recognizing that a professional violation has occurred and that a remedy exists.
It is one of these latter types of cases that is chosen as the focal point of this article. Essentially, the discussion will describe a breach of professional relationship when broadcasting and print media outlets were used by an attorney for personal recognition, advertisement, and professional gain by providing information for video and hardcopy publications that resulted in harm to others. The outcome of the case and the potential ethical and legal theories arising will be explored herein. The remainder of the introduction discusses the Rules of Professional Conduct with a focus on unethical conduct. The article then analyzes a recent case applying these rules. Lastly, the article presents the final decisions and orders in the case, summarizes the impact of the decision, and provides a conclusion regarding unethical professional conduct.
Rules of Professional Conduct
The legal system and particularly attorneys practicing within it are closely governed by state courts and government disciplinary boards of the state. Those who practice law must do so within the boundaries of state imposed professional cannons, published opinions, state and federal statutes, and common law doctrines. The American Bar Association adopted the Model Rules of Professional Conduct in 1983; these serve as models for the bar associations of most states (ABA 1983). Pursuant to the rules, every attorney has an ethical obligation to protect information relating to a client. This information includes both privileged and unprivileged client information. Furthermore, an attorney owes the same duties to his or her former clients. Of those many duties, Model Rule 1.9(c) indicates that an attorney who has formerly represented a client shall not use information relating to the representation so as to disadvantage the client unless permission from the client is first obtained, or the information is generally known to the public. The Bar Association of Michigan has adopted this rule, with minor modifications, as its Rule 1.9 in the Michigan Rules of Professional Conduct. (1) The aim is to prevent the use of protected information about a client especially when such information is used to the client's detriment. An attorney must ask, will protected information obtained from or about my client if revealed or used result in injury or disadvantage to the client? If the answer is yes, then the disclosure is strictly prohibited unless done with the consent of the former client.
Ethical rules are enacted to provide guidelines both for the profession and for state regulating bodies in disciplinary proceedings. (2) The disciplinary arm of a particular state's bar association enforces the ethical rules codified in that jurisdiction. The usual process for the disciplinary action can be initiated by complaint from a client, a former client, a member of the public, or the state attorney grievance commission on its own initiative. The attorney grievance disciplinary body investigates the allegations of misconduct and decides whether to prosecute. If the decision is made to prosecute, the matter proceeds to a formal charge and a hearing on whether the attorney did in fact violate the ethical rules of the jurisdiction. The range of discipline includes admonishments, reprimands, fines, suspensions, or even possible disbarment--permanent denial of the ability to practice law--for serious violations. The state supreme court is the final arbiter of questions concerning professional conduct.
Protected information is that which is provided and obtained within the confines of an attorney-client relationship. Generally, when an attorney makes a contract with an individual or one is made by an individual with an attorney wherein advice or assistance is either offered or sought, (3) and the advice or assistance offered or sought pertains to matters within the attorney's professional competence, (4) and the attorney expressly or impliedly agrees to give or actually does give the offered or sought advice or assistance, (5) then an attorney-client relationship is established. The determination of the creation and nature of the relationship is a question of fact.
Focus: Unethical Conduct--Case Overview
This article provides an analysis of a recent case wherein it is found by a panel of co-professionals hearing a complaint brought by the Michigan Attorney Grievance Commission that serious violations of the Professional Code of Ethical Conduct had occurred. The case stemmed from an attorney's use of information in a manner found by the hearing panel to be unethical and in violation of rules of professional conduct. The findings of the hearing panel were that the respondent-attorney acted for the purpose of advancing his own self-interests, reputation, notoriety, and income, thereby causing harm and loss to former clients. The sanctions imposed by the hearing panel included suspension from practice, a hefty fine, an order to notify all clients of the suspension, to notify all tribunals before whom he may have a case pending of the suspension, to discontinue practicing law in any form including holding himself out as an attorney by any means during the period of suspension. Furthermore, the sanctions were subject to conditions that the respondent-attorney provide proof that he informed all media outlets with whom he discussed this case that his license has been suspended because he made comments improperly and without authority, and that he requested all media outlets that they redact the information he provided from any further transmissions.
Upon appeal to the Attorney Discipline Board, the findings and sanctions of the hearing panel were upheld by the Board (Grievance Order 2009) but the board vacated the conditions of notice to the media outlets and request for redaction (the hoard vacated the conditions totally on its own--i.e., sua sponte.--with no request by either party that the conditions he removed.) A motion by the Grievance Administrator, seeking reinstatement of the conditions, was denied by the Discipline Board.
Subsequently, petitions for leave to appeal were filed by both parties to the Michigan Supreme Court. On July 9, 2009, the Supreme Court denied review of the findings and decisions but remanded the case to the Attorney Discipline Board for reconsideration of its removal of the conditions (Grievance July 2009). The respondent, John Cote, filed a motion for implementation of the suspension to a retroactive date of September 11, 2009 (Grievance September 2009). On October 1, 2009, upon reconsideration after the Supreme Court remand, the Discipline Board reinstated the conditions that require respondent to notify the media and to request redaction of his participation in the broadcasts. The Discipline Board ordered the suspension to begin as of September 11, 2009 (Grievance October 2009). No further appeals were taken by respondent and, after more than two years, the matter had reached finality.
The decisions of the hearing panel for the Attorney Grievance Commission and the Discipline Board send a warning signal to all professionals to carefully scrutinize transmission of information when doing so may constitute unethical conduct. The decisions assuredly will be studied for time to come in many classes on ethics, jurisprudence, and the use of information technology.
CASE STUDY: ETHICAL CONSIDERATIONS OF ATTORNEY CONDUCT
Tragic Events: Facts of the Case
The facts of the case are extensive and although somewhat mysterious, not complex. Furthermore, the parties stipulated on the record to most of the facts and to the admission of most exhibits. The mysterious part, with questions still unanswered, concerns events that occurred on the high seas of Lake Huron, offshore Michigan, in August 2005.
On Saturday, August 11, 2005, a small yacht was found adrift, about 20 miles from Mackinac Island, Michigan, with its engine running and music playing. The yacht was empty of crew or passengers, but clothing, food, and personal items were found totally intact and undisturbed. Once sighted by other boaters, reports were made to the United States' Coast Guard that was then dispatched to the scene. Ownership of the vessel was established as the parents of a young female attorney ("Ms. Y," 35 years of age and trained skipper of the craft) who was accompanied by a male companion ("Mr. X," 34 years of age with no maritime training), also an attorney. No one was found in the yacht or in the calm water of Lake Huron. Weather was adequate at that time, although there had been storms earlier in the time period. The yacht's deck and items on the boat were wet. Coast Guard personnel boarded the boat, but failed to secure it for evidence. The yacht was navigated to harbor in Rogers City, Michigan. Michigan State police were called to the scene. After a brief search of the small craft, it was turned over to the female skipper's relatives. At this point in the timeline of events, the family of the male companion had not yet been notified of the incident. A search was conducted on Lake Huron by the missing female's relatives utilizing the small craft. Police authorities also conducted their own search for the two missing occupants. The immediate searches produced no survivors or bodies. On August 24, 2005, the female's naked body washed ashore. The male's body has yet to be recovered. Almost a full year later, pursuant to a Michigan Statute, he was declared deceased by the Presque Isle County Probate Court on August 3, 2006. (6)
On August 20, 2005, attorney John L. Cote contacted the father of the missing/deceased male offering his services on a pro bono basis. He expressed his expertise as an attorney steeped in the practice of maritime law. Less than three weeks later, attorney Cote contacted the parents of the deceased male indicating that he could no longer perform his services pro bono, but rather he requested compensation for services rendered to date in the amount of $7,500.00. Attorney Cote stated that any further services would be provided on an hourly basis at the rate of $275.00 per hour. The parents of the missing male paid a reduced amount for past services, and rejected the offer for future services. John L. Cote was notified by letter dated September 13, 2005, that his services were no longer needed.
Subsequently, attorney Cote embarked on a media frenzy concerning this "mystery beneath the blue." He engaged in this behavior after his relationship with the missing/deceased male's parents had been terminated, after he was asked by them to cease and desist all media exploitation of the situation, and to a more limited extent after the Michigan Attorney Grievance Commission had filed a complaint against him. Contrary to the wishes expressed by the parents of the deceased male that he stop speaking publically on the matter, and despite the fact that a grievance had been filed regarding his conduct, Cote repeatedly provided numerous interviews, statements, and speeches offering his theories to newspapers, magazines, national and international television broadcasters, media reporters, and other audiences expounding on his expert analysis of the case. It was this ongoing activity by attorney Cote that resulted in the filing of a formal complaint for unethical conduct in violation of Michigan Rules of Professional Conduct brought against him by the Michigan Attorney Grievance Commission in May of 2007.
Issues to be Determined
Each of three issues was considered and resolved by the hearing panel after separate full-day hearings that resulted in a tri-part staggered decision that spanned 9 months and generated over 2,000 pages of text and exhibits. These issues were:
1. Was there an attorney-client relationship between John L. Cote and the parents of the deceased male (Grievance September 2007)?
2. Did attorney John L. Cote, by his conduct, commit attorney misconduct and thereby violate the Michigan Rules of Professional Conduct (Grievance January 2008)?
3. What sanctions should be imposed due to the violation if a violation did in fact occur (Grievance June 2008)?
John L. Cote served as his own attorney, in pro per, at the first two of these hearings and was represented by retained counsel in all proceedings thereafter.
Decision on Attorney-Client Relationship
The first hearing resulted in a decision, dated September 12, 2007, holding that there was an attorney-client relationship, (7) citing an opinion of the Michigan Supreme Court that:
The relationship of an attorney and client is not dependent on the payment of a fee, nor is a formal contract necessary to create this relationship. The contract may be implied from the conduct of the parties. The employment is sufficiently established when it is shown that the advice and assistance of the attorney are sought and received in matters pertinent to his profession. (Macomb County Taxpayers Assn. v. L'Anse Cruse Public Schools 1997, 11)
The first decision held that John L. Cote provided all of his services utilizing his law firm letterhead and "performed all services under the auspices of his legal background" (Grievance September 2007), and thus the clients "reasonably believed that he would assist them in matters pertinent to his profession; namely that of an attorney having expertise in matters of admiralty law and proven litigation success in cases involving boating accidents and missing persons" (Grievance September 2007). These findings are supported by a "preponderance of the evidence, that an attorney-client relationship existed between" the parties and thus "this matter shall proceed to hearing on this issue of the alleged attorney misconduct" (Grievance September 2007).
Decision on Conduct Arising from the Relationship
The second full day hearing resulted in a decision, released on January 16, 2008, holding that there was misconduct by John L. Cote in violation of the Michigan Rules of Professional Conduct (M.R.P.C), specifically M.R.P.C. 1.9(c)(1) (8) and M.R.P.C. 8.4(a) (9) and Michigan Court Rules (M.C.R.) 9.104(A)(3) and (4). (10) The holding relied on stipulated exhibits and undisputed facts (Grievance January 2008).
The findings were that John L. Cote did in fact offer his services pro bono via telephone on August 20, 2005, to the parents of the missing young man and then subsequently billed $7,500.00 for services rendered. Further, on September 13, 2005, the offer to continue his work on a fee basis was declined and the relationship was terminated. Thereafter, Cote utilized myriad media outlets to conduct his publicity circus.
He is quoted from media outlets, such as The Detroit News, Dateline NBC, The Grand Rapids Press, Hour Detroit, Rita Cosby Live and Direct, and On the Record with Greta Van Susteran, as making statements or suggestions, as set forth below, regarding his theories in a variety of contexts.
There are plenty of theories, too. Maybe it was a tragic accident. Bur some friends and family members suggest foul play-that others were involved. I kept asking questions and asking questions, and all of a sudden, they [the parents] no longer needed my services. [I]t was possible that someone pushed [her] over board; that foul play was at least a 50/50 probability and very high on the agenda. ... would have expected [her male companion] to have been found near her; ... a struggle took place due to the GPS knob in the sole of [her] shoe; ... the problems with the GPS indicated that somebody did not want anyone to know where the boat had been; ... there was no evidence that a former client of [the deceased male attorney] (or anyone he had previously prosecuted) was out for him. All of the evidence adds up to it not being accidental. ... there were two possibilities--foul play by a third party or by the person on board [i.e., her male companion]--that would account for her death; the male was either at the bottom of the lake or alive and walking around somewhere ... the key to solving the case lies in the personal relationship between the two of them. ... both bodies should have been found temporally and geographically near each other. ... there was no history of piracy or rogue boats in the area. Respondent [Cote] has been puzzled as to why the parents ... seem unwilling to have Respondent, or someone, follow up and look for answers or explanations of what happened to their son. (Grievance January 2008)
The hearing panel determined that these statements intentionally created an insinuation that the male companion was culpable for the female's death and that the parents/clients had terminated Cote's services for some sinister reason of cover-up. Cote chose not to disclose to the media that the most likely reason for his termination as counsel was due to his request to his clients for payment of his supposed pro bono work (Grievance January 2008, 23).
Analysis of Rules of Professional Conduct
Relying on the above findings of facts, the hearing panel then focused on interpretation and application of sections of M.R.P.C. 1.9(c)(1) and (2), which state:
A lawyer who has formerly represented a client in a matter or whose present or former firm has formerly represented a client in a matter shall not thereafter:
1. use information relating to the representation to the disadvantage of the former client
2. reveal information relating to the representation ...
M.R.P.C. 1.9(c) does not necessitate the disclosure or use of attorney-client confidences in order to establish a violation, but rather the rule places ethical limitations on the use or revealing of information arising out of the relationship, either before or after, so as to disadvantage a client (Grievance January 2008, 6). Rules protecting the attorney-client privilege are a separate issue. M.R.P.C. 1.9(c) provides a broader prohibition on the use of information arising out of the relationship.
M.R.P.C. 1.9(c) provides two exceptions allowing for the disclosure of information. These two exceptions indicate that the only information that may be disclosed by the attorney is information either generally known to the public or information revealed with the consent of the client. The panel decided that Cote used information known solely to him due to his insider attorney status and that the revealed information was not available to the general public (Grievance January 2008, 9). Then, in direct opposition to the wishes of his clients, he publicized his theory that there had been foul play by the male companion. His position gained credibility largely because he is an attorney, advertising expertise in admiralty and maritime law, with intimate involvement in the investigation (Grievance January 2008, 12, 16). The insider information not known by the general public but made available to Cote and then manipulated and revealed by him to the media, was that (1) no one was known to have a vendetta against the male attorney, (2) there was no evidence of foul play by third parties, (3) there were no reports of "rogue boats," (4) in his expert opinion evidence demonstrated the incident not to be accidental, (5) in his opinion the male companion could still be living and in hiding, (6) he was convinced the couple did not drown accidentally, (7) he believed the relationship needed inquiry, (8) he only considered the male as a suspect, (9) much about the male companion gave him pause, and, finally, (10) there were disturbing discoveries, and curious information. Cote's status as an expert attorney in maritime matters and as former attorney of the clients, gave factual legitimacy to his position and provided these statements with a "heightened air of credibility" (Grievance January 2008, 16). His unique relationship with the clients "made his implicit and explicit accusations concerning [the deceased male's] possible involvement in [the female skipper's] death that much more dramatic and damaging to his former clients" (Grievance January 2008, 16).
Cote's repeated statements of foul play made to a myriad of media outlets evidence his opinion as an expert that the male companion was involved in the female skipper's death (Grievance January 2008, 22). The record reflects that Cote "admitted at the hearing that he never considered a theory where [she] was at fault, rather only [him]" (Grievance January 2008, 10).
Yet a theory of the female skipper's culpability in the boating accident has certain merit. Public records available to Cote, to the media, and to any member of the public who researched the matter, contain information available for general knowledge relating to the female skipper. These records reveal that she had an extensive history of drunk driving convictions, a suspended driver's license, a conviction for filing a false police report, an existing probation order prohibiting consumption of alcohol, and an existing court order requiring attendance at weekly Alcoholics Anonymous meetings. (11) It appears that she had had at least four glasses of wine the evening before the boating incident and she had traces of alcohol in her body when an autopsy was performed. She may have been in no condition to safely skipper a yacht. Yet none of these public incidents were considered by Cote or acknowledged by the media. Furthermore, her license to practice law was in jeopardy because the State Attorney Grievance Commission had begun disciplinary action against her due to the drunk driving convictions. (12) Her position as an attorney with the City of Detroit could have been in serious jeopardy. (13)
In view of the above findings, based on testimony, exhibits, and the unrefuted evidence, the decision of the hearing panel was that Cote did violate M.R.P.C. 1.9(c)(1) and (2) by using and revealing information related to the representation of his clients, resulting in injury and disadvantage to the clients. (Grievance January 2008, 24).
Analysis of Michigan Court Rule 9.104(A)(3)
Relying on these findings of facts, further analysis by the hearing panel focused on application Michigan Court Rule 9.104(A)(3) which provides that attorney conduct contrary to justice, ethics, honesty, or good morals is considered professional misconduct and grounds for discipline, regardless of whether it occurred within or outside the course of an attorney-client relationship. Exhibits of Cote's letters to various recipients utilizing his law office letterhead, comments published about his new "case," and statements provided to the media about his "clients" support the holding that his repeated assertions of having never established an attorney-client relationship are simply "implausible, incredible, and lacking in factual integrity" (Grievance January 2008, 20-21).
Further, "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 legal system and profession" (Grievance January 2008, 21). The decision forcefully supports that finding.
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 [parents] 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 had garnered through his pro bono representation to further his own interests, without regard for the impact of his actions on his former clients. (Indeed, Respondent knew that the parents wanted to avoid the media, See, his letter dated August 29, 2005 (Exhibit #2: "I am aware of your feeling regarding wanting to maintain a low profile as possible regarding the media. I share your concern.") He publicly refuted claims that might support a products liability action on behalf of the Estate of their son, he publicly singled out [their son] as a suspect in [the female skipper's] death, while cloaking himself as an objective expert and insider familiar with the evidence surrounding the incident; and he implicitly accused his former clients, the [parents], 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." (Grievance January 2008, 22-23)
M.C.R. 9.104(A)(3) mandates that all Michigan attorneys practice in a manner that is not "contrary to justice, ethics, honesty, or good morals."
Justice [emphasis added] 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 what he had previously stated would be free legal services. Honesty [emphasis added] demands that Respondent, who had sent letters and conducted interviews in which he identified himself as the [parents'] 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 his unrepentant defense of this grievance, continues to engage) in conduct that is unbecoming of someone with his hard-earned and well-deserved reputation within the Bar Association. (Grievance January 2008, 22-23)
The decision of the hearing panel concluded that attorney Cote did violate M.R.P.C. 1.9(c)(1) and (2), M.R.P.C. 8.4(a), M.C.R. 9.104(A)(3), and M.C.R. 9.104(A)(4), but that the Grievance Commission failed to establish separate violations of M.C.R. 9.104(A)(2) (Grievance January 2008, 24).
Decision on Standards for Imposing Sanctions
The third full day hearing resulted in a decision released June 25, 2008, analyzing the standards under which sanctions were to he imposed. Cote was represented by counsel at this hearing and all subsequent proceedings (Grievance June 2008). Michigan has adopted the American Bar Association Standards for sanctions that include disbarment, suspension, reprimand, or admonishment.
Numerous character witnesses were called by Cote to assist the panel in determining the nature and extent of sanctions to be imposed. The tone of the hearing panel's third decision evidences intolerance of the defenses proffered, yet it provides a thorough and careful analysis of all factors including aggravating and mitigating factors. Michigan Rules of Professional Conduct 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. The following six factors from A.B.A. Standard 9.22 are carefully considered and weighed (ABA 1983).
The first factor considered under standard 9.22(b) was whether Cote acted for selfish or dishonest motives. The hearing panel found Cote to be an immensely proud man who advertises himself to be "The Sherlock Holmes of Maritime Law." So as to enhance his name nationally, he appeared on Dateline NBC and Greta Van Susteren putting his own personal aggrandizement above the interests of his clients. In doing so, he disregarded the express orders of his clients to cease and desist media exploitation, and persisted in a course of conduct directly at odds with the interests of his clients.
The second factor considered under standard 9.22(c) was whether there was a pattern of misconduct. The decision states that "one of the most troubling aspects of Mr. Cote's behavior was that, despite repeated and admittedly understood instructions from the [parents] 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, Dateline NBC, The Greta Van Susteren Show, and the Charlevoix Public Library. Particularly troublesome are the intentional public comments made after filing of the grievance" (Grievance June 2008, 15-16).
The third factor considered pursuant to standard 9.22(f) was whether the attorney participated in the submission of false evidence, false statements, or other deceptive practices. Cote's repeated statements that he was seeking answers that would benefit both families are found to be simply false. Furthermore, "[his] repeated assertions that [their son] could or should be considered a potential cause of [the female skipper's] death in no way could help the [parents]; his public announcement of ruling out potential causes of action likewise did not help the [parents]; his suggestion that the key to the case was the personal relationship between [the female skipper and her male companion] (the man whom he had stated could still be walking around somewhere) could be read to hurt the [parents]; and his self-serving report to the Detroit News that he was terminated after asking too many questions for the [parents'] liking, was not only misleading, but could have in no way been interpreted as intended to help his putative clients" (Grievance June 2008, 16).
The next consideration pursuant to standard 9.22(g) was Cote's refusal to acknowledge the wrongful nature of his conduct. The decision holds that, "[h]ad 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 sought to insulate himself from recrimination by offering his lengthy history of experience within the attorney discipline system, but then showed his disregard for that system by continuing to engage in the conduct for which he was 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 M.R.P.C. might be incorrect" (Grievance June 2008, 16).
Further, the vulnerability of the victims was considered pursuant to standard 9.22(h). "As stated in the panel's 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 ... [the male's father and others] was extremely compelling. Mr. Cote knew of this vulnerability, and offered to help. Indeed, but for Mr. Cote's prior relationship with [the parents] 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 [parents'] tragic situation from the outset" (Grievance June 2008, 16).
The attorney's substantial practice of law was the last factor considered under standard 9.22(i). "Mr. Cote has been licensed for 45 years. He served on the Attorney Discipline Board for seven years, five 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" (Grievance June 2008, 17).
Interestingly, it should be noted that attorney Cote, even after implementation of the sanctions and in apparent violation thereof, continues to represent himself as an expert in the area of the defense of attorney grievances. He has repeatedly, even during the time of his suspension, and to the recent date, advertised his services in every edition of the Michigan Bar Journal offering "Attorney Discipline Defense" (14) and is an author of at least one article regarding ways to avoid the trauma and expense of grievance proceedings (Cote 2004).
Sanctions Imposed
The hearing panel decision ordered that John L. Cote was to have been suspended from the practice of law in the state of Michigan for 45 days to begin on July 17, 2008, and continue until the filing of an affidavit of compliance by Mr. Cote with three entities, the Michigan Supreme Court, the Attorney Discipline Board, and the Attorney Grievance Commission (Grievance Order 2008). Mr. Cote was ordered not to hold himself out as able to practice law and to notify all of his clients of the nature of his discipline. He was ordered to pay costs in the amount of $4,499.82. In addition, the sanction provided the following conditions:
a. Cote must notify all media outlets with whom he discussed the case that his license to practice law was suspended because he was found to have made the comments regarding the case improperly and without authority.
b. Mr. Cote must request that the television shows redact his appearance and statements from all future re-telecasts of the episodes.
c. Copies of all correspondence and any responses must be provided to the Grievance Administrator and the Michigan Attorney Discipline Board.
d. Eligibility for reinstatement to practice Saw would not occur until all conditions have been met. (Grievance Order 2008)
But, John L. Cote appealed that decision to the Attorney Discipline Board. On January 28, 2009, the Attorney Discipline Board upheld the findings and decision as to all issues raised, removing only the four conditions set forth above (Grievance Order 2009). On February 7, 2009, the Attorney Grievance Commissioner made a motion to the Discipline Board requesting that it reconsider its removal of the conditions on the ground that neither party had sought such a modification in the original sanctions. The Board denied the motion.
As indicated above, upon request for leave to appeal filed by both parties to the Michigan Supreme Court, the court denied leave on July 9, 2009, and remanded the matter to the Discipline Board for reconsideration of its modifications to the four sanction conditions originally imposed by the Hearing Panel (Grievance July 2009). On September 25, 2009, John Cote filed a motion to the Attorney Discipline Board requesting that his suspension from the practice of law be made retroactive to September 11, 2009, and begin to run the 45 days from that date (Grievance September 2009). On October 1, 2009, the Attorney Discipline Board entered an order reinstating the conditions and establishing the date for suspension to begin retroactively as September 11, 2009. The suspension order of attorney Cote reads that "respondent is forbidden from practicing law in any form; appearing as an attorney before any court, judge, justice, board, commissioner or other public authority; or holding himself out as an attorney by any means" (Grievance October 2009, 1). The record contains an affidavit from respondent that most of the media had been notified and requested to redact his comments (Grievance September 2009). However, it is apparent that Cote's advertisement as a practicing attorney had not been removed from any of the bar journals during the period of his suspension (Cote 2009a, 2009b). Publication of the suspension of Cote from the practice of law was provided to the public (Michigan Attorney Discipline Board 2009, 61-62).
CONCLUSION
The egregious conduct of the attorney in this matter is apparent. One can only speculate on the reasons for what, on first blush, appears to be leniency in the sanction imposed. Nor is it clear why the disciplinary board failed to insist that Cote follow the requirement of their order forbidding that he hold "himself out as an attorney by any means" (Grievance October 2009, 1).
However, it should be noted that the members of the hearing panel were very experienced lawyers from prestigious firms. In view of the strength of their decision in the matter, coupled with the mitigating factors of Cote's age, background, and lengthy practice, the sanction coupled with the conditions could be viewed by some as adequate punishment for a proud attorney. Whether the sanctions were lenient or not, of greatest significance is that the decision makes clear that pursuit of notoriety for personal aggrandizement at the expense of others is unconscionable.
Furthermore, it may be time to revisit the common law denying posthumous defamation causes of action, especially as those rights may relate to the harm caused for those left behind. We live in a world where the digital revolution has contributed to the media exploitation of questionable information. The digital revolution has broadened the risks of infringing upon the reputation, privacy, and dignity of many parties, including the deceased (Post 1986). It is time that innocent parties should have legal protections of recognizable rights to prevent inaccurate portrayals of their situations.
Given the straightforward nature of the facts and the timeliness of the larger issues involved, the Cote case and the findings of the Michigan Grievance Commission hearing panel make a useful and instructive example for discussion in law school ethics and jurisprudence classes.
REFERENCES
AMERICAN BAR ASSOCIATION. 1983. Model Rules of Professional Conduct. http://www.abanet.org/cpr/mrpc/mrpc_toc.html (accessed July 13, 2009).
COTE, J. L. 2004. The Defense of Grievances. Michigan Bar Journal 83 (10): 18-24.
--. 2009a. Advertisement. Michigan Bar Journal 88 (9): 58.
--. 2009b. Advertisement. Michigan Bar Journal 88 (10): 69.
GRIEVANCE ADMINISTRATOR. Attorney Grievance Commission v. John L. Cote, #07-83-GA, Findings of Kent County Hearing Panel #1 Regarding Attorney-Client Relationship (September 12, 2007).
--. Attorney Grievance Commission v. John L. Cote, #07-83-GA, Findings and decision of Kent County Hearing Panel #1 Regarding Attorney Misconduct (January 16, 2008).
--. Attorney Grievance Commission v. John L. Cote, #07-83-GA, Opinion of Kent County Hearing Panel #1 Regarding Sanctions For Attorney Misconduct (June 25, 2008).
--. Attorney Grievance Commission v. John L. Cote, #07-83-GA, Order of Suspension with Conditions (June 25, 2008).
--. Attorney Grievance Commission v. John L. Cote, #07-83-GA, Order Affirming Hearing Panel Order of Suspension of 45 Days and Vacating Conditions (January 28, 2009).
--. Attorney Grievance Commission v. John L. Cote, Michigan Supreme Court Order #138313 denying application for leave to appeal and remanding for reconsideration of conditions (July 9, 2009).
--. Attorney Grievance Commission v. John L. Cote, Order of Suspension with Conditions, after remand (October 2009).
--. Attorney Grievance Commission v. John L. Cote, Respondent's Motion to Make Retroactive the Effective Date of Discipline (September 2009).
MACOMB COUNTY TAXPAYERS ASS'N. V. L'ANSE CREUSE PUBLIC SCHOOLS, 455 Mich. 1 (1997).
MICHIGAN ATTORNEY DISCIPLINE BOARD. 2009. Orders of Discipline and Disability. Michigan Bar Journal 88 (12): 61-62. http://www.adbmich.org/CES5/default.aspx?sortf=@sysdate&sortd=fals&q=12249 (accessed January 7, 2010).
MICHIGAN SUPREME COURT. 1998. Michigan Rules of Professional Conduct. http://www.michbar.org/generalinfo/pdfs/mrpc.pdf (accessed January 7, 2010).
MINNOTT, I. 2009. The Attorney Client Relationship: Exploring the Unintended Consequences of Inadvertent Formation. University of Detroit Mercy Law Review 86:269-302.
POST, R. 1986. The Social Foundations of Defamation Law: Reputation and the Constitution. California Law Review 74:691-742.
WARD, S. 2007. Top 10 Ethics Traps. American Bar Association Journal. http://www.abajournal.com/magazine/article/top_10_ethics_traps (accessed January 7, 2010).
ZIMMERMAN, C. 2009. Forty Mile Point. Shepherd, MI: Tate Publishing.
(1.) Michigan Rules of Professional Conduct were adopted by order of the Michigan Supreme Court effective October 1, 1988. M.R.P.C. 1.9 is quoted below at page 8 of text.
(2.) M.R.P.C. 1.0(b) provides that an attorney who does not comply with the Michigan Rules of Professional Conduct is subject to disciplinary action.
(3.) The Preamble to the Michigan Rules of Professional Conduct provides that as an advisor, the attorney provides the client with "an informed understanding of the client's legal rights and obligations and explains their practical implications."
(4.) M.R.P.C. 1.1 requires that a "lawyer shall provide competent representation to a client. Competent representation requires the legal knowledge, skill, thoroughness and preparation reasonably necessary for the representation."
(5.) The Preamble to the Michigan Rules of Professional Conduct indicates that a client-attorney relationship begins upon the agreement between the client and the attorney to render legal services.
(6.) M.C.L. [section] 700.1208 was enacted primarily for insurance and estate purposes. It describes the procedures to be followed by a court to establish the death of an individual who is in an accident or a victim of a disaster and whose remains have either disappeared or are unidentifiable. The proceeding cannot start in less than sixty-three days nor more than seven years, from the date of the accident or disaster.
(7.) For an extensive legal literature discussing this issue and the consequences of unethical conduct, see Minnott (2009) and also Ward (2007).
(8.) M.R.P.C. 1.9(c)(1) indicates that a lawyer "shall not use information relating to the representation to the disadvantage of a former client" except as provided by law or "when the information has become generally known."
(9.) M.R.P.C. 8.4(a) indicates that an attorney engages in professional misconduct if the Michigan Rules of Professional Conduct are violated or an attempt to violate them has occurred by the attorney.
(10.) M.C.R. 9.104(A)(3) and (4) provide the grounds for disciplinary action of an attorney including "conduct that is contrary to justice, ethics, honesty, or good morals" or "conduct that violates the standards or rules of professional responsibility." For the Michigan Court Rules, see, http://coa.courts.mi.gov/rules (last visited July 13, 2009).
(11.) The convictions were as follows: (1) People, of the City of Royal Oak v. "Ms. Y", No. 94-47308A, blood alcohol level 0.22%; charged with OUIL/UBAL and open intoxicants in vehicle; pled guilty and convicted of OWI; 6 months probation, $600 fines and fees, restricted license; (2) People of the State of Michigan v. "Ms. Y", No. 96-616411; blood alcohol level 0.18%; charged with OUIL/UBAL; pled guilty and convicted of OWI; 12 months probation, $925 fines and fees; (3) People of the City of Westland v. "Ms. Y", No. 03-64167, blood alcohol level 0.20%; charged with OUIL/UBAL; pled guilty and convicted of OWI on 11/9/04; 12 months probation, $1,880 fines and fees, ordered no alcohol, random breathalyser, attend AA once a week for 52 weeks, and ordered attend a substance abuse program; she died on 8/11/05 while still on probation and under court orders; and (4) People of the City of Westland v. "Ms. Y", No. 03-900962; charged with making a false police report; pled no contest; the plea was taken under advisement by the court. Further case disposition unknown.
(12.) She was a Freedom of Information Attorney for the City, and thus an apparent recipient of data regarding certain text messages, which have now led to the conviction and disbarment of the former mayor of Detroit. As such, she may have been in a position to use acquired information so as to barter with the City in order to save her jeopardized professional career. Success in such negotiations may have temporarily prevented the potential loss of her legal career, but attempts at making such a deal could conceivably have resulted in the fatality eventually suffered. But, neither Cote nor broadcasters investigated these facts or noted the heightened demands of city attorneys that her personal computer and belongings be immediately retrieved from her private living quarters.
(13.) In a recent fiction novel based on similar facts it is hypothesized that a third party was involved (Zimmerman 2009).
(14.) For examples, see October and November 2009 issues of the Michigan Bar journal (Cote 2009a, 2009b), wherein attorney Cote once again has purchased a large advertisement for his law practice which states in the advertisement, "Well over 200 attorneys and many judges have relied on Jack Cote for competent and effective legal representation at all stages of disciplinary proceedings and counseling on ethical issues. Former chair (5 years) of Attorney Discipline Board. Served 7 years by Supreme Court appointment. Expert testimony on standard of care in legal malpractice cases. Experienced handling of character and fitness matters at all stages."
ELIZABETH A. CAMPBELL
Central Michigan University
TANYA M. MARCUM
Bradley University
 Printer friendly
 Cite/link
 Email
 Feedback
| |
| Author: | Campbell, Elizabeth A.; Marcum, Tanya M. |
|---|---|
| Publication: | Michigan Academician |
| Article Type: | Case overview |
| Date: | Mar 22, 2010 |
| Words: | 7469 |
| Previous Article: | Antebellum Michigan farmers and their soils: choices had consequences. |
| Next Article: | Some effects of globalization on U.S. employee health care benefits. |
| Topics: | |