Justice Cypher upholds Marshard suspension

Updated Oct. 24

Associate Justice Elspeth B. Cypher handed down a decision Monday afternoon on the misconduct case of Cape and Islands Assistant District Attorney Laura Marshard. Cypher upheld the Board of Bar Overseers’ recommended sanction of a one-month suspension from the practice of law for Marshard.

In her conclusion Cypher wrote, “[h]aving considered the underlying facts, the respondent’s acceptance of responsibility and acceptance of the sanction, as well as considering discipline imposed in other cases, I conclude that the one-month suspension was appropriate and that the courses attended by the respondent satisfy the CLE [continuing legal education] requirement imposed by the board.”

Marshard came before Justice Cypher in Boston on Sept. 12. After hearing from both an assistant bar counsel, Stacey Best, and Marshard’s attorney, Elizabeth Mulvey, Cypher — after asking for further detail from each party — declined to rule from the bench and took time to ponder her judgment.

Cypher was called upon to rule because the Board of Bar Overseers has no enforcement power, and must ultimately bring such matters before the court.

In a 58-page decision, the board found Marshard guilty of misconduct in October 2017.

“The typical sanction is not enough, however, in the circumstances of this case, [Marshard’s] misconduct in contacting a represented party without the consent of that party’s attorney was willful and intentional, not accidental or peripheral. It was aggravated by the respondent’s lack of candor before us about that incident, and about other incidents that were the subject of this disciplinary proceeding, as well as her substantial experience and failure to recognize the wrongfulness of her misconduct …”

The decision also took aim at the Cape and Islands district attorney’s office itself, but did not mark any of the faults it perceived for prosecution: “Finally, we are concerned that apparently one of the respondent’s witnesses, a Second Assistant District Attorney, and perhaps a First Assistant District Attorney as well, took the position that [Marshard’s] ex parte contact with a represented person concerning the subject of the representation was, in effect, business as usual,” the decision states.

O’Keefe rebuts, Moriarty brothers respond
In a 24-page press release responding to Cypher’s ruling, Cape and Islands District Attorney Michael O’Keefe came out swinging against Robb and Tim Moriarty, brother attorneys both involved in the case.

Robb Moriarty is a former assistant district attorney in O’Keefe’s office, and his wife still works for the district attorney. O’Keefe’s response comes after Marshard’s case was given a full hearing before a BBO panel that included eight days of testimony and reviewed by the full Board of Bar Overseers, which found she “abused her prosecutorial power” —  an outcome ultimately endorsed by Cypher after yet another hearing in the case.

In a section titled “The Pot Calls the Kettle Black,” O’Keefe wrote the Moriarty brothers violated judicial regulation that forbids blood- or marriage-related lawyers from representing opposing clients without written informed consent.

“What there is evidence to support is a violation of Mass R. Prof. C. [Massachusetts Rules of Professional Conduct] 1.7 by two brothers, one who represented the defendant and one who volunteered to represent the victim/witness regarding a Fifth Amendment claim made by the brother representing the defendant. Of course if the victim/witness refused to testify, there would be no case against the defendant. And that’s exactly what the brother advised the victim to do.”

Tim Moriarty took offense to O’Keefe’s accusation, and said it was utterly false.

“There was no question in anybody’s mind that I was Robb’s brother,” he told The Times.

Moriarty described O’Keefe’s reference to state conduct rules as “intentionally misleading” and an “unwarranted attack.” Moriarty pointed out the events in question took place in 2014, and the rule of conduct O’Keefe cited wasn’t enacted until 2015. Per the website of the state Supreme Judicial Court, the adopted date of the rule was March 26, 2015, while the effective date of the rule was July 1, 2015.

At issue was Marshard’s handling of David Sylvia, a witness in a July 2014 case involving a brawl at a party. Marshard, who had previously prosecuted Sylvia, met with him without his attorney, Tim Moriarty, present. Sylvia was to testify against Patrece Petersen, who was charged with assault and battery with a dangerous weapon, assault and battery on a police officer, mayhem, resisting arrest, and disturbing the peace.

According to testimony during the hearing and documented in the board’s decision, Marshard “directed an Edgartown police detective [to] locate Sylvia and bring Sylvia to the courthouse library.” Marshard then met with Sylvia without his attorney present. She later admitted she had met with Sylvia, but said it was only to reassure him he would not be prosecuted if he testified.

Sylvia, who could have potentially incriminated himself by testifying, was given counsel, but Marshard met with him without that attorney present.

Sylvia ultimately testified against Petersen, which invalidates O’Keefe’s claim that there was some collusion involved between the brothers.

Tim Moriarty said O’Keefe falsely stated in his release that Moriarty (Tim) volunteered to represent a key person in the case in question when, in actuality, he was assigned to that person by the court.

Moriarty summed up O’Keefe’s release as “meritless.”

Asked about the discrepancy in the effective date of the regulation as compared with when the events the Moriarty brothers participated in took place, O’Keefe initially said he could not hear the question over the telephone. Approximately an hour later, he said the rule in question “has been around since 1997,” and that the basic idea is longstanding.

Asked if the written consent portion existed back then, he said he wasn’t sure and would have to look that up at a later time. Asked why he didn’t choose to enforce the perceived breach of the regulation, O’Keefe said, “That was in plain view of the Board of Bar Overseers. Let’s see what they do.”

Pressed on what he might do on the subject going forward, O’Keefe said, “We’ll see what happens next.”

Robb Moriarty also responded to O’Keefe in a statement. “I am saddened and disappointed by the unhinged personal attacks levied by District Attorney O’Keefe that were clearly meant to obfuscate and distract from the findings of the Board,” he wrote. “It does not befit an elected district attorney to falsely smear lawyers summonsed to testify before the Board of Bar Overseers in an investigation into prosecutorial misconduct simply because we had the temerity to tell the truth.”

In his release, O’Keefe wrote that Marshard has chosen to accept the decision by Cypher. “This is a personal decision made with concern for her family who have endured these proceedings, along with Marshard, for years,” he wrote.

Marshard lives on the Island, but in the last year has worked as a prosecutor in Falmouth. The man who answered the phone at Marshard’s home hung up when a Times reporter identified himself.

In reference to the “business as usual” accusation made by the Board of Bar Overseers against his office in its report on Marshard, O’Keefe noted in his release, “There is not a scintilla of evidence in the record to support this assertion.”

Asked whether citations the Board of Bar Overseers inserted in their report regarding transcripts of witness testimony (Sharon Thibeault and Mike Trudeau) constituted a scintilla or more, O’Keefe said he didn’t see value there. “They make assertions that aren’t grounded in the record,” he said.

Throughout the process of Marshard being charged, found guilty, and the finding ultimately being upheld by Cypher, O’Keefe has been unwavering in his support. He’s showed up at hearings, and issued statements that take shots at other parties involved. In his press release, he even takes a shot at the SJC.

“It is also interesting to note that in a case which turns on such small details, even the Supreme Judicial Court has misidentified the island where Laura Marshard lives and the fact that the ethics training I organized and hosted was not done at my office,” O’Keefe wrote. “It was done at a conference center site in Hyannis, and prosecutors and defense attorneys from all over the state, as well as my prosecutors, attended. These are small details, but it just shows we all make mistakes.”

Robb Moriarty, in his statement, takes aim at the district attorney’s attack on his and his brother’s professional conduct. “I agree with the district attorney that the people of Martha’s Vineyard deserve no less than lawyers that follow the rules,” Moriarty wrote. “Indeed, my brother and I have always followed them. The people of Martha’s Vineyard also deserve no less than an ethical and truthful prosecutor, which the BBO and the SJC found to be lacking under O’Keefe’s leadership. Despite those findings, DA O’Keefe has chosen to shamelessly strike out rather than get his own house in order. That’s a regrettable choice both for his constituents and the office he serves.”

George Brennan contributed to this report. Updated to include comments from O’Keefe and both Moriarty brothers. — Ed.