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Attorney Discipline Board

Attorney Grievance Commission,

Case No. 07-83-GA

JOHN L. COTE, p 12249,




Martha E. Reamon, Chairperson

Bruce A. Courtade, Member
Kevin J. ODowd, Member
Patrick K. McGlinn, Associate Counsel
for the Attorney Grievance Commission
John L. Cote, Respondent
In pro per

On August31, 2007, a full day hearing was held in the above-caption matter solely on the
issue of whether there was an attorney-client relationship between Respondent and the
Rutherfords, as it was stipulated that a finding of no attorney-client relationship would be dispositive
on the issue of attorney misconduct. Subsequent to the hearing, the Kent County Hearing Panel
#1 met to review the testimony and documents introduced into evidence, and based upon a
preponderance of the evidence presented, concluded that an attorney-client relationship did exist
between Mr. Cote and the Rutherfords, for reasons summarized below.
In their Hearing Briefs, both Petitioner and Respondent cited to the pertinent provisions of
the Michigan Rules of Professional Conduct, the Restatement (Third) of Law Governing Lawyers
and Michigan case law addressing the elements of an attorney-client relationship. While Petitioner
and Respondent placed emphasis upon different aspects of these authorities, it is the panelists
view that the governing rules and case law are not materially in dispute. Further, while all of the
authorities cited by the parties were helpful in guiding the panelists decision on this issue, the
individual panelists agreed that the most instructive summary of the factors to be considered in
determining whether an attorney-client relationship exists are those summarized in the case of
Macomb Co Taxpayers Assn v LAnse Creuse Pub Schools, 455 Mich 1 (1997), quoted on page
4 of Petitioners Hearing brief, in part:

The rendering of legal advice and legal services by the attorney and
the clients reliance on that advice or those services is the
benchmark of an attorney-client relationship. The attorneys right to
be compensated for his advice and services arises from that
relationship: it is not the definitional basis of that relationship.
We agree with the authorities cited in 7Am Jur2d, Attorneys
at Law, 118, pp 187-188, that:
the relation of 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 ailorney are sought and
received in matters pertinent to his profession.
Id at 11.
Against this backdrop of authorities, Mr. Cote argues that he was never retained as an
ailorney on behalf of the Rutherfords, nor did they seek his advice on legal mailers. Rather,
Respondent characterizes his role as that of an investigator, albeit with a background and expertise
in admiralty and maritime law, but nonetheless, merely as an investigator: specifically, to assist the
Rutherfords in gathering and analyzing the evidence surrounding the disappearance of the
Rutherfords son, Charles Rutherford, Jr., who disappeared on August 11, 2005. The facts
surrounding this tragic incident are thoroughly summarized in the parties Hearing Briefs and
exhibits will not be repeated herein.
The parties stipulated to numerous exhibits prior to the hearing, and twenty-four exhibits
were introduced during the hearing, copies of which were ailached to the hearing transcript. While
this Opinion may refer to certain exhibits, this Opinion will primarily attempt to paraphrase the
evidence presented for ease of discussion.
Mr. Cote concedes that he volunteered his services to the Rutherford family, pro bono, and
that he came to know Mr. Rutherford, Sr. as an attorney primarily through Bar Association activities
over the years. Mr. Cote concedes that in volunteering his services, he promoted his expertise in
mailers of admiralty and maritime law, even referring to prior litigation cases he had handled
involving boating accidents and disappearances. All of Mr. Cotes written communications were on
his Firm letterhead, and he conceded at the hearing that but for his prior legal expertise in such
mailers, he would not likely have become involved in the subject investigation.
While conceding his legal expertise in mailers of admiralty and maritime law, and his prior
experience handling legal cases involving boating accidents and missing persons, Mr. Cote denies
that he offered, nor that the Rutherfords relied on, any legal advice in this mailer. While Mr. Cote
acknowledges making reference in the exhibits to ruling out potential causes of action in this case
(i.e., such as a wrongful death mailer or product liability based upon a product defect), Mr. Cote
claims that such opinions were essentially gratuitous, and that the Rutherfords were not looking to
him to render such legal opinions. For example, at the hearing, Mr. Cote argued that it was well
known that there was no evidence of a boat defect long before he became involved, and that the
Rutherfords did not require his assistance in reaching that conclusion.
Further to his defense, Mr. Cote argued, and the facts support, that he never entered into
a written ailorney-client agreement with the Rutherfords; that there was no confidentiality
agreement between the parties; that he was never compensated for his time (aside from some

reimbursement for certain costs): and that when he ultimately offered to enter into a formal aiorneyclient agreement with the Rutherfords, this was declined.
Mr. Cote essentially argues that the Rutherfords never requested nor relied upon any of his
legal advice and that his unilateral actions, including offering comments upon mailers that were
quasi-legal in nature, does not give rise to an attorney-client relationship. These arguments, while
finding some support in the documents admitted into evidence, were rebuiled by the Rutherfords
at time of hearing, and remain in dispute.
Indeed, the extent to which the Rutherfords sought or relied upon Mr. Cotes legal advice,
independent of his other non-legal investigative services is much in dispute in this mailer. While
there is little discussion in the exhibits regarding the Rutherfords request for legal advice, or Mr.
Cotes offer to provide legal advice, there is some evidence in the record to Mr. Cote ruling out
potential causes of action and concluding that there was no evidence of a boat defect. Further,
there is repeated reference in Mr. Cotes correspondence and materials provided to the Rutherfords
when he first became involved as to his expertise in mailers of admiralty and maritime law. He also
emphasized his prior success resolving boating accident and missing person cases, all of which,
incidentally, were the subject of litigation; a fact acknowledged by Mr. Cote at the time of the
hearing. Mr. Cote also used the term pro bono in discussing the nature of his services, which is
clearly a legal term of art.
Moreover, the panelists take note of the undisputed fact that the Rutherfords were quite
despondent, if not still in a state of shock, at the time Mr. Cote initially offered his assistance. Under
such circumstances, it is reasonable to assume that while the Rutherfords knew they needed an
attorney, they may not have entirely understood why or for what precise purpose, this being a very
unusual case. To have someone with Mr. Cotes experience and legal expertise offerto assist them
pro bono, towards investigating the disappearance of their son, could very understandably have
legal connotations beyond what may have been stated in writing between the parties. It is not a
stretch to imagine that the Rutherfords took comfort on the heels of this tragedy in knowing that an
attorney with expertise in matters of admiralty and maritime law, who had successfully litigated
boating accident and disappearance cases, was working on their case: a term Mr. Cote used
repeatedly in referring to this matter.
It bears mention that the Rutherfords had other legal counsel assisting them in this mailer,
and with whom Mr. Cote interacted; namely, Mr. Mike Cumming. However, Mr. Cumming is
principally an estate and probate lawyer, not knowledgeable in matters of maritime or admiralty law,
and it is undisputed that Mr. Cumming was looking to Mr. Cote (for the short time Mr. Cote was
involved, which was only approximately three to four weeks) on gathering any forensic evidence
related to the boat and the disappearance of the Rutherfords son. Mr. Cumming testified that he
was looking to Mr. Cote in gathering and analyzing the evidence related to the boat and the
disappearance of Mr. Rutherford, Jr., and that he personally considered the possibility of a wrongful
death action or other liability claims, none of which would be within his area of expertise.
Furthermore, while it is true that the Rutherfords had their own investigator assisting them in this
mailer, Mr. Cotes unique qualifications distinguished himself as a forensic specialist in boating
accident cases. In this regard, while it may be difficult to distinguish between forensic investigation
services that are legal from those which are not, it is safe to say that lawyers of many
backgrounds perform or supervise forensic investigative services in working up their cases (i.e.
personal injury and product liability cases, for example), such that the Rutherfords may very well
have assumed that the investigative services Mr. Cote was performing (as he characterizes them)
were related to potential and future legal proceedings.

Additionally, Mr. Rutherford testified that while he is also a licensed engineer, he would not
use his legal or law firm letterhead in offering such services, but rather, would keep this separate
from his law practice. Mr. Cote, on the other hand, performed all services under the auspices of
his legal background and used law firm letterhead in all of his communications. This makes it
particularly difficult to distinguish between those services performed by Mr. Cote as being legal
or non-legal in nature.
In sum, using the legal standard quoted above, set forth by the Michigan Supreme Court,
it is the opinion of this panel that a preponderance of the evidence supports the conclusion that an
attorney-client relationship existed between the Rutherfords and Mr. Cote for the time period he
was acting on their behalf. Objectively, there is sufficient evidence in the record demonstrating that
Mr. Cote addressed matters that were legal in nature and which were pertinent to his background
in mailers of admiralty and maritime law. Also, it is the panels opinion that an attorney-client
relationship may be implied from the conduct of the parties, despite the fact that a formal agreement
was never reached and despite the fact that the parties never clearly articulated what their
expectations may have been in this regard. However, this would not be the first time that a clients
expectations may have differed from that of their attorney, and therefore, this underscores the
importance of having a written agreement defining the scope of an attorneys representation prior
to proceeding. Unfortunately, in this case, Mr. Cote volunteered his services to the Rutherfords
pro bono, and then proceeded to act on their behalf in a most delicate and complex investigation
which, if not purely legal, certainly had legal overtones and potential legal ramifications depending
on the evidence.
Under these facts, it is reasonable to conclude that Mr. Cote led the Rutherfords to
reasonably believe that he would assist them in mailers pertinent to his profession; namely, that
of an aiorney having expertise in matters of admiralty and maritime law and proven litigation
success in cases involving boating accidents and missing persons.
For the reasons discussed above, and supported by the testimony and exhibits introduced
at time of the hearing, this Panel respectfully finds, by a preponderance of the evidence, that an
ailorney-client relationship existed between the Rutherfords and the Respondent. Accordingly, this
matter shall proceed to hearing on this issue of the alleged attorney misconduct.
Kent Coun
aring Panel #1


DATED: September 12, 2007

Martha E./P~~mon,