- Cape and Islands District Attorney's Office
Media Contact for Marshard Press Release
Michael O'Keefe, District Attorney
I am thankful for the words of Judge Cypher of the Supreme Judicial Court commending my office for hosting an ethics course, which the court further found satisfied the requirement for ethics training by Laura Marshard.
In rejecting Bar Counsel Stacy Best’s argument that Ms. Marshard be required to take an ethics course at Suffolk University Law School offered in the fall, the court noted that, “…the only alternative course proposed by Bar Counsel was one she herself was teaching…”.
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. 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.
The attached report below is my response to the action of the Board.
_________________________________________________________________________________________________________________________________
Board of Bar Overseers
Bar Counsel, Petitioner
vs.
Laura Marshard, Respondent
Laura Marshard was accused by Bar Counsel of violating the canons of ethics in three separate matters. She was found to have not violated any of the canons of ethics in two of the three cases she was accused of.
She was found to have violated Rule 4.2 of the canons (see attachment 1) because she spoke with the victim in a case she was prosecuting after that person had been appointed an attorney for the purpose of assessing whether or not his answering questions under oath would implicate him in a crime.
This process, though unpleasant, can be a learning experience. With that in mind, I hosted an ethics seminar on June 14, 2018 with state and national instructors on all phases of ethics for prosecutors and criminal defense attorneys.
Assistant District Attorney Marshard has elected not to appeal the single finding against her. This is a personal decision made with concern for her family who have endured these proceedings, along with ADA Marshard, for years.
But while Attorney Marshard accepts the Board’s recommendation and I understand her position, the findings of fact by this tribunal are not supported by the evidence elicited at the proceeding. An example of this at the heart of the violation found by the board is the following:
“Based on the testimony and admissions of the respondent (Marshard) and a memorandum by a detective who was at the meeting, the hearing committee found the following facts with respect to the ensuing conversation with Silvia (victim) in the law library. According to the detective’s memorandum, Silvia seemed agitated, did not understand the conversation, and asked to meet with his court appointed lawyer.” (Board Memorandum, page 3)
Let us now examine the actual evidence from the proceeding and the documents admitted into evidence.
The Detective’s memorandum:
“David Silvia (victim) came into the law library and Assistant District Attorney Marshard spoke with him. She attempted to explain his Fifth Amendment rights to him which he still didn’t quite understand. He asked a number of questions and was advised that he now needed to have his court appointed attorney address his concerns. At no time were any specifics of the Peterson case discussed in this conversation with Silvia. The conversation was mostly trying to get Silvia to calm down as he couldn’t understand why he needed an attorney and was afraid that he would now be in trouble. He was only in the Library for a few minutes and was then introduced to his appointed counsel, Timothy Moriarty.” (See attachment 2, memo from Detective Dolby)
The damning portion of the tribunal’s finding is that Silvia, “asked to meet with his court appointed lawyer.”
Sergeant Dolby’s memorandum cited as support for this actually says just the opposite. It was Assistant District Attorney Marshard who advised Silvia that he, “…needed to have his court appointed attorney address his concerns,” not the other way around.
As the forgoing will show, Mr. Sylvia wasn’t even aware that he had been appointed an attorney. A transcript of the hearing held by Judge Williams upon the complaint, not by Timothy Moriarty, but by his brother Robert who represented the defendant contained the following:
THE COURT: I am going to conduct a discussion with Mr. Silvia. I’d ask counsel to come to sidebar and ask Mr. Silvia to come to sidebar.
After being sworn the court says, “Okay. Sir, did you have a discussion with the Assistant District Attorney with police officers present?”
MR. SILVIA: “Yes, I did.”
THE COURT: “And when was that? Was that Thursday…….”
MR. SILVIA: “Monday, after first call I was…I didn’t get here until 10:30 I didn’t know…”
THE COURT: So a we-…
MR. SILVIA: …anything about…
THE COURT: A week ago Monday?
MR. SILVIA: …h-, yes.
THE COURT: Okay. And has Mr. Timothy Moriarty been appointed to you at that time?
MR. SILVIA: I did not know at that time. I did not know what was going on. I had just got here.
THE COURT: Okay. Ha-, have you had one discussion with those…with, with the Assistant District Attorney and police officers, or more than one?
MR. SILVIA: I have had more than one.
THE COURT: More than one. Okay. So the first one was a week…
MR. SILVIA: The first…
THE COURT: …ago today?
MR. SILVIA: No. The first conversation I had with them was at the police station.
THE COURT: Oh, okay. All right. That was back in…
MR. SILVIA: Um, a month ago, maybe.
THE COURT: Uh, back in August?
MR. SILVIA: Yeah.
THE COURT: Yeah. Okay.
MR. SILVIA: The other one was the…
THE COURT: That was just the police, though?
MR. SILVIA: Uh, the…no, the DA was there.
THE COURT: She was there too?
MR. SILVIA: Yes.
THE COURT: All right. All right. Um, and then when…how many have you had in total, discussions?
MR. SILVIA: Uh, three with today.
THE COURT: Three, including today?
MR. SILVIA: Yes.
THE COURT: And the second one was last week?
MR. SILVIA: Last, last week.
THE COURT: Was that Monday of last week?
MR. SILVIA: Monday, yes.
THE COURT: Okay. And can you remember whether that was before or after Mr. Moriarty, Timothy Moriarty, was appointed to represent you?
MR. SILVIA: Um, apparently it was after. She was just explaining to me that I had to h-, have a lawyer appointed to me.
THE COURT: She did tell you that?
MR. SILVIA: Yes.
THE COURT: Did she, uh, uh, discuss with you anything you might say in a hearing of…
MR. SILVIA: No.
THE COURT: …this kind? She did not discuss…
MR. SILVIA: No.
THE COURT: …the substance of it?
MR. SILVIA: Told me if I had questions, I could ask questions. She would answer them. Other than that, she was just explaining my…about the Fifth Amendment right.
THE COURT: Okay. So she told you that, and that you would have a lawyer to protect your rights in that regard?
MR. SILVIA: Yes.
THE COURT: Okay. So she did not ask you about the alleged incident?
MR. SILVIA: No.
THE COURT: All right. Uh, didn't ask you about your role in it at all?
MR. SILVIA: No.
THE COURT: Okay. And, uh, did she explain how this would work procedurally, what we're about to do today?
MR. SILVIA: No.
THE COURT: IT WAS ALL about the Fifth Amendment?
MR. SILVIA: Yes.
THE COURT: And that’s all she told you?
MR. SILVIA: Mm hmm.
THE COURT: All right. Nothing else?
MR. SILVIA: Nothing else. Ms. WILLIAMS walked in, um, while she was explaining that I…uh, Mr. Moriarty was appointed to me.
THE COURT: Okay. All right. And then thereafter you met with him, and he told you…
MR. SILVIA: Yes.
THE COURT: …also about the Fifth Amendment?
MR. SILVIA: Mm hmm.
THE COURT: And then you and I and he were up here at the sidebar, just as we are now. That was last Monday?
MR. SILVIA: Yes.
THE COURT: And what about today? Did you have another discussion with her?
MR. SILVIA: Uh, I did talk to her, yes.
THE COURT: Today?
MR. SILVIA: Yes.
THE COURT: And what was the subject matter of that discussion?
MR. SILVIA: Um, that I would testify today.
THE COURT: Just told her that you would testify?
MR. SILVIA: Yes.
THE COURT: Did you tell her what you would testify to?
MR. SILVIA: No.
THE COURT: Did you talk about the, uh, alleged incident that’s involved here?
MR. SILVIA: No.
THE COURT: Okay. Were you present for that?
T. MORIARTY: I was present for today’s discussion. I met with Mr. Silvia beforehand.
THE COURT: Mm hmm.
T. MORIARTY: Discussed the Fifth Amendment again.
THE COURT: Okay.
T. MORIARTY: Um, I was present for the conversation, um, with, uh, Attorney Marshard and the detectives, um, and that was after, uh, there was a discussion…
THE COURT: I’m obviously less concerned if you're there.
T. MORIARTY: Right. I, I was there. The discussion was basically limited to what would be discussed today…
THE COURT: Okay.
T. MORIARTY: …in his testimony.
THE COURT: Okay. On any of the occasions when you met with the Assistant District Attorney or the police officers, did anybody promise you any reward of any kind?
MR. SILVIA: No.
THE COURT: Did anyone, uh, make any kind of promises to you?
MR. SILVIA: No.
THE COURT: Anybody suggest that…uh, um, so no deals were discussed or anything…
MR. SILVIA: No, no deals.
THE COURT: …INAUDIBLE?
MR. SILVIA: NO.
THE COURT: Nothing? Just y-, “Here’s your right?” That kind of…
MR. SILVIA: Yes.
THE COURT: …thing? And then today you discussed the, the, the te-, the substance of the testimony a little bit?
MR. SILVIA: Yes.
THE COURT: And that was with your lawyer, Mr. Moriarty, present here?
MR. SILVIA: Yes, it was.
THE COURT: Do you have any concerns, uh, Counsel? By “Counsel,” just for the record, I am indicating Mr. Timothy Moriarty. Do you have any concerns that Mr. Silvia’s Fifth Amendment rights have been impinged in any fashion?
T. MORIARTY: I don’t.
THE COURT: Okay. All right. And also, no promises, inducements, rewards made to him?
T. MORIARTY: No.
THE COURT: Okay. Anything else you'd like to bring up?
T. MORIARTY: No.
THE COURT: I’m going to suggest on the open record here that I’m satisfied that your Fifth Amendment rights have not been infringed upon, uh, and that no promises, rewards or inducements were made to you to shade your testimony here today. And you've waived…
MR. SILVIA: Mm hmm.
THE COURT: …your Fifth Amendment right? You're willing to testify here today?
MR. SILVIA: Yes.
THE COURT: Okay. All right. Uh, that’s what I’m going to find, then. All right? Thank you. Uh, I have obviously, uh, conducted a colloquy…
[BREAK IN AUDIO]
THE COURT: …Silvia here at the sidebar. Uh, I am satisfied the his Fifth Amendment rights have not been, uh, infringed, and I am satisfied, uh, that no rewards, promises or inducements have been made to him in order to influence the testimony that he might be giving here this afternoon. So, uh, in so far as there re-, there’s a request that he not testify, that request is denied.
R. MORIARTY: Okay.
THE COURT: Okay?
R. MORIARTY: Please note my exception, Judge.
THE COURT: Okay. Your exception is on the record. And, uh, there is, I believe, a motion to sequester the witnesses. With no, um, objection to that, you have how many witnesses, Commonwealth? (Pages 8-15, Hearing 9/29/14 before Judge Williams, admitted into evidence at the tribunal)
In contrast to the aforementioned evidence we have the finding by the Board.
“The hearing committee found that the respondent discussed the case with Sylvia and explicitly assured him that he was not being charged with a crime, was not a target, and would not be charged, all for the purpose of convincing him to testify, a finding that we do not disturb.” (Board Memorandum Page 3)
Further evidence refuting this finding is the testimony on the 22nd of September before Judge Williams.
THE COURT: Or do you need more time to speak with Mr. (Tim) Moriarty?
SILVIA: I don’t, I don’t I, uh, I told him that I wanted to, but I, I just…uh I don’t know. I’m pretty much conv, been uh convinced that uh, charges will be brought against me later. (Pages 24, Hearing 9/22/14)
The evidence makes clear that the alleged improper conversation between ADA Marshard and Silvia took place on the 22nd of September and was immediately followed by a conversation between Silvia and Attorney Tim Moriarty. Immediately after that followed the colloquy between the Judge and Silvia. All of this happened on the 22nd of September, a week prior to the second colloquy on the 29th of September.
On the 22nd right after Assistant District Attorney Marshard talks to him and more importantly after Tim Moriarty talks to him, Mr. Silvia tells the judge, “I’m pretty much conv, uh been uh convinced that charges will be brought against me later.”
The Board’s finding that Assistant District Attorney Marshard assured him he wouldn’t be prosecuted makes no sense in light of Mr. Silvia’s own statement to the court. But it does make sense that Mr. Tim Moriarty told him he would be prosecuted. Silvia himself says, “I’m … been convinced. “ The logical inference being Tim Moriarty convinced him.
The colloquy on the 22nd of September which was redone on the 29th of September demonstrates the illogic of the Board’s finding that Assistant District Attorney Marshard convinced Silvia to testify on the promise of no prosecution.
The reader can decide whether or not the evidence supports the findings made by this tribunal and adopted by the Board.
I would suggest that it does not.
One additional noteworthy point is this gratuitous statement by the Board in its findings.
“Finally…the hearing committee noted that ex parte meetings with represented persons are apparently a regular occurrence in the District Attorney’s office where the respondent works.” (Board Memorandum Page 8)
There is not a scintilla of evidence in the record to support this assertion.
In fact, an assistant district attorney from my office testified regarding the ‘handoff’ of a Commonwealth witness to a lawyer appointed for Fifth Amendment purposes this way.
Q: And why is there that kind of handoff?
A: Because we are the only connection that witness has had at that minute to the process. You’ve met with them, they’re probably on your witness list, they’re the Commonwealth’s witness, and they’re not in the courtroom when the judge appoints the attorney. You have to go tell the witness what has just happened.
Q: Is that an uncommon situation?
A: No, it happens all the time. What we would never do is then sit and start to talk facts of the case with the witness after the lawyer’s been appointed. (Sharon Thibeault, Vol. 4, 234-235, May 9, 2017)
There is a difference, as recognized by Judge Williams, between talking about the issue which gives rise to a potential Fifth Amendment claim with the person who has been appointed counsel and merely informing the person that he has been appointed a lawyer to discuss his Fifth Amendment right and directing him to speak with that lawyer, particularly in a context where the witness in question has been your victim and witness in the case and you have met with them on several occasions in preparation for the proceeding.
So for example discussing with the witness what answers he might give to questions which would tend to incriminate him is different in character than letting him know that he has a Fifth Amendment right and that he should talk to the lawyer appointed to him to vindicate that right.
These are but a few examples of the incongruity between the facts and the findings.
The Pot Calls the Kettle Black
What there is evidence to support is a violation of Mass R. Prof. C. 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. (Testimony of Tim Moriarty, May 3, 2017 Vol.1, page 111)
Rule 1.7, Massachusetts Rules of Professional conduct governs the representation of clients with adverse interests being represented by siblings. See Rule 1.7, comment 11.
Where, as here, lawyer A represents the victim in a case while his brother, lawyer B represents the defendant, a conflict of interest is present for both lawyers.
“A lawyer related to another lawyer e.g. as parent, child, sibling or spouse may not represent a client in a matter where that lawyer is representing another party unless each party gives informed consent” (Comment 11).
“Informed consent requires that each affected client be aware of the relevant circumstances and of the material and reasonably foreseeable ways that the conflict could have adverse effects on the interests of that client” (Comment 18).
“Informed consent must be confirmed in writing” (Comment 20), (See Rule 1.7 and comments, Attachment 3)
There was no evidence of an advisement given to Mr. Silvia by Tim Moriarty that his brother, Rob Moriarty, represented the defendant, clearly a party with an adverse interest, let alone a waiver of that conflict in writing. It was clear from the evidence during questioning by Attorney Liz Mulvey that Tim Moriarty had no idea what his obligations were in this situation.
A: I believe he (Judge) agreed to appoint lawyers, yes.
Q: All right. And before he appointed anybody specific, do you recall what he did?
A: I don’t.
Q: Do you remember that he asked if anybody had conflict?
A: I do.
Q: And maybe just to help refresh your recollection, I’m on page 4 of Exhibit 37 or I will be shortly. Do you have page 4 there?
A: Yes.
Q: And Judge Williams asked –I don’t know if that would come up or not. There we go – whether anybody had any conflict—
A: Yes.
Q: --Right?You said I’m the duty day attorney, and the judge said okay. Any conflicts with any of these people? And then you said uh, (inaudible)?
A: If I said something, I probably would have said no.
Q: Right. And was that your feeling that you had no conflict?
A: That was my feeling.
Q: All right. Given that your brother was representing the defendant, did you take into consideration, I think at that point it was probably Rule 1.8(i)?
A: I’m not familiar with 1.8(i) off the top of my head, but if you’d like to show it to me, I can –
Q: Are you familiar with what the Rules of Professional Responsibility say about siblings representing people who were adverse to each other?
A: Perhaps you’d like to show me the rule that you’re referring to.
Q: Well, let me go back to 2014. Was this the first time you had represented somebody, a witness in a case where your brother was involved?
A: I do not recall.
Q: Do you think it could have happened before?
A: I honestly don’t know.
Q: Has it happened since?
A: I honestly don’t know.
Q: But, in any event, you had been a lawyer at that point for what, five years about?
A: Four, maybe five, yes.
Q: And you told us about this process that you went through to become a bar advocate?
A: I did.
Q: And did that involve some ethical training?
A: It did.
Q: Conflict of interest?
A: Sure.
Q: Because certainly in criminal cases it’s very common that defendants and witnesses have conflicting interests, right?
A: That’s true.
Q: And as a bar advocate it’s important that you be aware of those potential conflicts and respect them?
A: Yes
Q: And comply with the Rules of Professional Responsibility?
A: That’s true.
Q: Can you tell us please what the obligation is when siblings represent people with adverse interests?
A: Off the top of my head, no. To the extent that I could without violating my attorney/client privilege with Mr. Sylvia as to what I said on that day, I don’t know if I can.
Q: Will, I’m just asking about your knowledge, Mr. Moriarty. Did you know on September 22, 2014 what the Rules of Professional Responsibility required when you were going to represent a client whose interest was adverse to a client of your brother’s?
A: I would presume that it would require disclosure. (Tim Moriarty Vol. I, 89-92, May 3, 2017)
Rob Moriarty, Tim Moriarty’s brother then testified. He held the contract for tax payer funded defense of criminals on the Island.
Q: And these are the same people who are sometimes being appointed to represent witnesses who have a direct adverse inference or adverse relationship to people you are representing.
A: That’s correct.
Q: And that didn’t bother anybody?
A: It, it was it was, I mean yeah, it was brought to everyone’s attention. Everybody knew about it. It wasn’t like –everyone knew that Tim Moriarty was my brother.
Q: And—
A: He, yes, Tim Moriarty is my brother.
Q: And is this Petersen/Sylvia case the only one where you and he were both involved representing different people?
A: There might have been, there might have been one or two others, but it wasn’t – it was always disclosed.
Q: By you?
A: By me to my client.
Q: Okay, and certainly Mr. Petersen probably wouldn’t object to your brother representing his victim, right?
A: Mr. Petersen did not object.
Q: Right, because if your brother could talk the victim out of testifying, that would help Mr. Petersen, wouldn’t it?
A: Yes.
Q; All right. And you have no idea what your brother disclosed to Mr. Sylvia, right?
A: No.
Q: Or why your brother told Mr. Sylvia he shouldn’t testify?
MS. BEST: Objection.
A: I know –
THE CHAIRPERSON: What’s the basis? He has no idea. The question is --
MS. BEST: I object to the form of the question why he told him, that he told him not to testify.
THE CHAIRPERSON: Can you rephrase the question.
Q: You are aware that Mr. Sylvia told both Officer Snowden and the Court that your brother was telling him not to testify against Mr. Petersen, right?
A: Could you restate that again? I’m sorry.
Q: Sure. You’re aware that Mr. Sylvia told both Officer Snowden – Is it officer or detective?
A: Detective.
Q: --Detective Snowden and the court on the record that your brother had told him not to testify?
A: It’s my understanding there was a side bar conference that I was not a part of. I don’t know what was said during that.
Q: You’ve never seen the transcript?
A: No.
Q: All right. Well, were you there when Detective Snowden was up there?
A: I think so.
Q: And do you remember Detective Snowden saying that David Sylvia pulled him aside and said are you guys going to charge me?
A: I don’t remember that, but.
Q: And that Dave Sylvia said my lawyer’s telling me if I testify I’m going to get charged?
A: I don’t know.
Q: None of that rings a bell?
A: Well, that sounds like it probably that could have happened. I mean I don’t remember that exactly as to how that went down. You know, I don’t remember that exactly.
Q: All right. And you don’t know whether or not Dave Sylvia told Judge Williams that your brother was telling him not to testify?
A: I’m not aware of what exactly he told Judge Williams. I know Judge Williams had a couple of side bars during the course of this and at my behest this was one of them.
Q: Your behest as counsel for Mr. Petersen?
A: Correct.
Q: Because certainly, if you could somehow cause Mr. Sylvia or somebody caused Mr. Sylvia not to testify that would significantly weaken the case against your client, wouldn’t it?
A: Yes. (Rob Moriarty Vol. I, 231-235, May 3, 2017)
Any experienced practitioner knows what was happening here. These two brothers, lawyers with very little regard for the rules, were trying to gain an advantage by keeping the victim from testifying thereby enhancing the defendant’s chances that he would not be prosecuted.
This is, to quote the Board’s findings in another context, “…apparently a regular occurrence” on Martha’s Vineyard which I would have known nothing about but for this hearing.
Yet these are the lawyers who complained against Laura Marshard.
It is an unhealthy situation when two brothers, both of whom are the sons of a superior court judge sitting on the Island, one of whom is supposed to be ‘supervising’ his brother, one of whom is married to a Cape and Islands assistant district attorney, all practice on the tiny island of Martha’s Vineyard.
The rules of professional conduct contemplate many of the scenarios occasioned by familial relationships among lawyers but they have to be followed in order to work.
The people of Martha’s Vineyard deserve no less.
_________________________________________________________________________________________________________________________________________
Supplemental Information pertaining to the Rules of Professional Conduct
The Rules of Professional Conduct have always prohibited the representation of clients with adverse interests being represented by siblings.
In 2014, the Rule of Professional Conduct governing the representation of clients with adverse interests was Rule 1.8: Conflict of Interest: Prohibited Transactions. Section (i) of this Rule stated:
A lawyer related to another lawyer as parent, child, sibling, or spouse shall not represent a client in a representation directly adverse to a person who the lawyer knows is represented by the other lawyer except upon consent by the client after consultation regarding the relationship.
Rule 9.1. Definitions, defines such a consultation as:
(c) “consult” or “consultation” denotes communication of information reasonably sufficient to permit the client to appreciate the significance of the matter in question.
When a victim is represented by the brother of the lawyer who represents the defendant on the question of should the victim testify – that is a conflict. Furthermore, it is clear after a complete review of the testimony of the lawyers who are brothers that no consultation ever occurred nor was consent given by Mr. Sylvia.
During questioning by Attorney Liz Mulvey, it is apparent Attorney Tim Moriarty did not even know his obligations under the Rules of Professional Conduct.
A: I believe he (Judge) agreed to appoint lawyers, yes.
Q: All right. And before he appointed anybody specific, do you recall what he did?
A: I don’t.
Q: Do you remember that he asked if anybody had conflict?
A: I do.
Q: And maybe just to help refresh your recollection, I’m on page 4 of Exhibit 37 or I will be shortly. Do you have page 4 there?
A: Yes.
Q: And Judge Williams asked –I don’t know if that would come up or not. There we go – whether anybody had any conflict—
A: Yes.
Q: --Right? You said I’m the duty day attorney, and the judge said okay. Any conflicts with any of these people? And then you said uh, (inaudible)?
A: If I said something, I probably would have said no.
Q: Right. And was that your feeling that you had no conflict?
A: That was my feeling.
Q: All right. Given that your brother was representing the defendant, did you take into consideration, I think at that point it was probably Rule 1.8(i)?
A: I’m not familiar with 1.8(i) off the top of my head, but if you’d like to show it to me, I can –
Q: Are you familiar with what the Rules of Professional Responsibility say about siblings representing people who were adverse to each other?
A: Perhaps you’d like to show me the rule that you’re referring to.
Q: Well, let me go back to 2014. Was this the first time you had represented somebody, a witness in a case where your brother was involved?
A: I do not recall.
Q: Do you think it could have happened before?
A: I honestly don’t know.
Q: Has it happened since?
A: I honestly don’t know.
Q: But, in any event, you had been a lawyer at that point for what, five years about?
A: Four, maybe five, yes.
Q: And you told us about this process that you went through to become a bar advocate?
A: I did.
Q: And did that involve some ethical training?
A: It did.
Q: Conflict of interest?
A: Sure.
Q: Because certainly in criminal cases it’s very common that defendants and witnesses have conflicting interests, right?
A: That’s true.
Q: And as a bar advocate it’s important that you be aware of those potential conflicts and respect them?
A: Yes
Q: And comply with the Rules of Professional Responsibility?
A: That’s true.
Q: Can you tell us please what the obligation is when siblings represent people with adverse interests?
A: Off the top of my head, no. To the extent that I could without violating my attorney/client privilege with Mr. Sylvia as to what I said on that day, I don’t know if I can.
Q: Will, I’m just asking about your knowledge, Mr. Moriarty. Did you know on September 22, 2014 what the Rules of Professional Responsibility required when you were going to represent a client whose interest was adverse to a client of your brother’s?
A: I would presume that it would require disclosure. (Tim Moriarty Vol. I, 89-92, May 3, 2017).
________________________________________________________________________________________________________________________________
ATTACHMENT #1
Massachusetts Rules of Professional Conduct Rule 4.2
Rule 4.2: Communication with Person Represented by Counsel
In representing a client, a lawyer shall not communicate about the subject of the
representation with a person the lawyer knows to be represented by another lawyer
in the matter unless the lawyer has the consent oftl1e other lawyer or :is authorized
to do so by law or a court order.
Comment
[1] This Rule contributes to the proper functioning of the legal system by
protecting a person who has chosen to be represented by a lawyer in a matter
against possible overreaching by oilier lawyers who are participating m
the matter, interference by those lawyers with the client-lawyer relationship
and the uncounselled disclosure of confidential information relating to the
representation.
. (2] This Rule applies to communications with. any person who ls represented
by counsel concerning the matter to which the communication relates .
. [3] The Rule applies even though the represented person initiates or con
sents to the communication. A lawyer must immediately terminate comm·
nication with a person if the lawyer learns that the person ls one with whom
communication Is not permitted by this Rule.
. .
[4] This Rule does not prohibit communication with a represented person,
or an employee or agent of such a person concerning matters outside the
representation. For example, the existence of a controversy between a government
agency and a private party, or between two organizations, does not
prohibit a lawyer for either from communicating with nonlawyer representatives
of the other regarding a separate matter. Nor does this Rule pre
clude communication with a represented person who is seeking advice from
a lawyer who is not otherwise representing a client :in the matter. Parties to a
matter may communicate directly with each other, and a lawyer ls not prohibited
from advising a client concerning a communication that the client is
legally entitled to make. A lawyer may not, however, make a communication
prohibited by this Rule through the acts of another. See Rule 8.4(a). Also,
a lawyer having independent justification or legal authorization for
communicating with a represented person :is permitted to do so. For example,
counsel could prepare and send written default notices and written demands
required by such laws as Chapter 93A of the General Laws.
[5] Communications authorized by law may include communications by a
lawyer on behalf of a client who is exercising a constitutional or other legal
right to communicate with the government Communications authorized by
Rule 4.2 Massachusetts Rules of Professional Conduct
law may also include investigative activities of lawyers representing governmental
entities, directly or through investigative agents, prior to the
commencement of criminal or civil enforcement proceedings. When com-
. municating with the accused In a criminal matter, a government lawyer must
comply with this Rule in addition to honoring the constitutional rights of the
accused. The fact that a communication does not violate a state or federal
constitutional right is insufficient to establish that the communication is
permissible under this Rule.
[6] A lawyer who is uncertain whether a communication with a represented
person is permissible may seek a court order. A lawyer may also seek a
court order in exceptional circumstances to authorize a communication that
would otherwise be prohibited by this Rule, for example, where communication
with a person represented by counsel is necessary to avoid reasonably
certain injury
[7] In the case of a represented organization, this Rule prohibits communications
by a lawyer for another person or entity concerning the matter in
representation only with those agents or employees. who exercise managerial
responsibility in the matter, who are alleged to have committed the
wrongful acts at issue in the litigation, or who have authority on behalf of
. the organization to make decisions about the course of the litigation. Con
sent of the organization's lawyer is not required for communication with a
former constituent. If a constituent of the organization is represented in the
matter by his or her own counsel, the consent by that counsel to a communication
will be sufficient for purposes of this Rule. Compare Rule 3,4(f). In
communicating with a current or former constituent of an organization, a
lawyer must ·not use methods of obtaining evidence that violate the legal
rights of the organization. See Rule 4.4. ·
[8] The prohibition on communications with a represented person only applies
in circumstance where the lawyer knows that the person is in fact represented
in the matter to be discussed. This means· that the lawyer. has
knowledge of the fact of the representation; but such knowledge may be inferred
from the circumstances. See Rule 1.0(g). Thus, the lawyer cannot ·
evade the requirement of obtaining the consent of counsel by closing -eyes to
the obvious.
[9] In the event the person with whom the lawyer communicates is not
known to be represented by counsel in the matter, the lawyer's communications
are subject to Rule 4.3. ·
ATTACHMENT 2
EDGARTOWN POLICE DEPARTMENT
72 PEASE’S POINT WAY SOUTH
P.O. Box 1118
EDGARTOWN, MA 02539-1118
Christopher M. Dolby
Detective Sergeant
To: Michael Trudeau. First Assistant
From: Chris Dolby
Subject: Patrece Peterson EDG DIST Court proceedings
Date: February 4, 2015
Mr. Trudeau:
On or about the last week September or first week in October 2014 I was present at the Edgartown District Court or the normal daily court proceedings. A probable cause hearing was scheduled for DKT #1435CR000750 COMMV. PATRECE PETERSON, Which is a Edgartown Police Department Case.
To the best of my recollection the following took place: Judge Williams was presiding Judge at some
point during first or second call he addressed the Peterson matter. Specifically at some point Judge Williams spoke to the Fifth Amendment issues that were present in regards to the numbert of witnesses in the
Peterson matter. I don't recall exactly if all witnesses were present in the courtroom at the time, but Judge Williams made efforts to appoint Counsel to all the witnesses and made clear his concerns. I believe he then
.called a recess to allow for some time for Counsel to be appointed to all file witnesses,
·At this point I proceeded to the Law Library along with other Police Officers and Lawyers. There were a number of other people in the Library discussing their various cases and I believe Detective Snowden
had been asked by ADA Marshard to go find Sylvia order to explain to him what had just happened in the courtroom as Sylvia was quite confused and nervous about testifying in the matter
David SyIvia came into the Law Library and ADA Marshard spoke with him. She attempted to explain him his Fifth Amendment rights to which he still didn't quite understand. He asked a number of questions and was advised that he now needed to have his court appointed attorney address his concerns. At no time were any specifics of the Peterson. case discussed in this conversation with Sylvia. The conversation was mostly trying to get Sylvia to caIm down as he couldn't understand why he needed an attorney and was afraid that he would now be in trouble. He was only in the Library for a few minutes and was then introduced to his appointed Counsel, Timothy Moriarty. .
Respectfully Submitted,
Sgt. Chrls Dolby
ATTACHMENT #3
Rule 1.7 Massachusetts Rules of Professional Conduct
Rule 1.7: Conflict of Interest: Current Clients
(a) Except as provided in paragraph (b), a lawyer shall not represent a client if
the representation involves a concurrent conflict of :interest A concurrent
conflict of interest exists if:
(1) the representation of one client will he directly adverse to another client;
or
(2) there is a significant risk that the representation of one or more clients
will he materially limited by the lawyer's responsibilities to another client,
a former client or a third person or by a personal interest of the lawyer,
(b) Notwithstanding the existence of a concurrent conflict of interest under paragraph
(a), a lawyer may represent a client if:
(1) the lawyer reasonably believes that the lawyer will be able to provide
competent and diligent representation to each affected client;
(2) the representation is not prohibited by law;
· (3) the representation does not involve the assertion of a claim by one client
against another client represented hy the lawyer in the same litigation
or other proceeding before a tribunal; and
(4) each affected client gives informed consent, confirmed in writing.
Comment
General Principles
[1] Loyalty and independent judgment are essential elements in the lawyer's
· relationship to a client. Concurrent conflicts of interest can arise from
the lawyer's responsibilities to· another client, a former client or a third person
or :from the lawyer's own interests. For specific Rules regarding certain
.concurrent conflicts of interest, see Rule 1.8. For former client conflicts of
interest, see Rule 1.9. For the lawyer's duties with respect to information
provided to the lawyer by a prospective client, see Rule 1.18. For definitions
of "informed consent'' 'and "confirmed in writing,'' see Rule 1.0(f) and (c).
[2] Resolution of a conflict of interest problem under this Rule requires the
lawyer to (1) clearly identify the client or clients; (2) determine whether a
conflict of interest exists; (3) decide whether the representation may be
undertaken 'despite the existence of a conflict,. i.e., :whether the conflict is
Massachusetts Rules of Professional Conduct Rule L 7
consentable; and (4) if so, consult with. the clients affected under paragraph
(a) and obtain their informed consent, confirmed in writing. The clients affected
under paragraph (a) include both of the clients ·referred to in paragraph
(a)(1) and the one or more clients whose representation might be materially
limited under paragraph (a)(2).
[3] A conflict of interest may exist before representation :is undertaken, in
which event the representation must be .declined, unless the lawye1· obtains
the informed consent of each client under the conditions of paragraph (P.).
To determine whether a conflict of interest exists, a lawyer should adopt
reasonable procedures, appropriate for the size and type of firm and practice,
to· determine in both litigation and non-litigation matters the persons
and issues involved. See also Comment to Rule 5,1. Ignorance caused by a
failure to institute such procedures will not excuse a lawyer's violation of
this Rule. As to whether· a client-lawyer: relationship exists or, having once
been established, is continuing, see Comment to Rule 1.3 and Scope.
[4] If a conflict arises after representation has been undertaken, the lawyer
ordinarily must withdraw from the representation, unless the lawyer has obtained
the informed consent of the client under the conditions of paragraph
(b). See Rule.1.16.Where more than one client is involved, whether the
lawyer may continue. to represent. any of the clients is determined both by
. the lawyer's ability to comply with duties owed to the former client and by
the lawyer's. ability to represent adequately the remaining. client or clients,
given the lawyer's duties to the former client. See Rule 1.9. See also Comments
5 and 29.
[5] Unforeseeable developments, such as changes in corporate and other
organizational affiliations or the addition or realignment of parties in litigation,
might create conflicts in the midst of a representation, as when a company
sued by the lawyer on behalf of one client is bought by another client
represented by the lawyer in an unrelated matter. Depending on the circumstances,
· the lawyer may have the option to withdraw from one of the representations
in order to avoid the conflict. 'The lawyer must seek court approval
where necessary and take steps to minimize harm to the clients. See Rule
· 1.16. The lawyer must continue to protect the confidences of the client from
whose representation the lawyer has withdrawn. See Rule 1.9(c).
Identifying Conflicts of Interest: Directly Adverse
[6] Loyalty to .a current client prohibits undertaking representation directly
adverse to that client without that client's lnf01med consent. Paragraph (a)
expresses that general rule. Thus, absent consent, a lawyer ordinarily may
not act as an advocate ln one matter against a person the lawyer represents
Rule 1.7 Massachusetts Rules of Professional Conduct
in some other matter, even when the matters are wholly unrelated. The client
as to whom the representation is directly adverse is likely to .. feel betrayed,
and the resulting damage to the client-lawyer relationship is likely to
impair the lawyer's ability" to represent the client effectively. In addition, the
client on whose behalf the adverse representation :ls undertaken reasonably
may fear that the lawyer will pursue that client's case less effectively out of
. deference to the other client, i.e., that the representation may be materially
limited by the lawyer's interest ln, retaining the current client. Similarly, a
directly adverse conflict may arise when a lawyer is required to cross examine
a client who appears as a witness in a lawsuit Involving another
client, as when the testimony will be damaging to the client who is repre
sented in the lawsuit. On the other hand, simultaneous representation ln unrelated
matters of clients whose interests are only economically adverse,
such as representation of competing economic enterprises in unrelated litigation,
does not ordinarily constitute a ·conflict of interest and thus may not
require consent of the respective clients. . .
[7] Directly adverse conflicts can also arise in transactional matters, For
example, if a lawyer is asked to represent the seller of a business m negotiations
with a buyer represented by the lawyer, not in the same transaction but
in another, unrelated matter, the lawyer could not undertake the representation
without the informed consent of each client.
Identifying Conflict of Interest : Material Limitation
[8] Even where there is no direct adverseness, a conflict of interest exists if
there is a. significant risk that a lawyer's ability to consider; recommend or
carry out an appropriate course of action for the client will be materially
limited as a result of the lawyer's other responsibilities or :Interests. For example,
a lawyer asked to represent several individuals seeking to form a
joint venture is likely to be materially limited in the lawyer's ability to recommend
or advocate all possible positions that· each :might take because of
the lawyer's duty of loyalty to the others: The conflict in effect forecloses
alternatives that would otherwise be available to the client. The mere possibility
of subsequent harm does not itself require disclosure and consent. The
critical questions are the likelihood that a difference in interests will eventuate
and. if it does, whether it will materially interfere with the lawyer's Independent
professional judgment in considering alternatives or foreclose
courses of action that reasonably should be pursued on behalf of the client.
Massachusetts Rules of Professional Conduct Rule 1, 7
Lawyer’s Responsibilities to Former Clients and Other Third Persons
[9] In addition· to conflicts with other current cli1mts, a lawyer's duties of
loyalty and independence may be materially limited by responsibilities to
former clients under Rule 1.9 or by the lawyer's responsibilities to other
persons, such as fiduciary duties arising from a lawyer's service as a trustee,
executor or corporate director
Personal Interest Conflicts
[10]The lawyer's own interests should not be permitted to have an adverse
effect on representation of a client. For example, if the probity of a lawyer's
own conduct in a transaction ls in serious question, it may be difficult or
'impossible for the lawyer to give a client detached advice, Similarly, when a
lawyer has discussions concerning possible employment with an opponent
of the lawyer's client, or with a law firm representing the opponent, such
discussions could· materially limit the lawyer's representation of the client.
In addition, a lawyer may not allow related business inte1·ests to affect representation,
for example, by referring clients to an enterprise :in which the
lawyer has an undisclosed financial interest. See Rule 1.8 for specific Rules
pertaining to a number of personal interest conflicts, including business
transactions with clients. See also Rule 1.10 (personal interest conflicts un- .
der Rule 1. 7 ordinarily are not imputed to other lawyers in a law firm).
[11]When lawyers representing different clients in the same matter or in
substantially related matters are closely related by blood or marriage, there
may be a significant risk that client confidences will be revealed and ·that the
lawyer's family relationship will interfere with both loyalty and :Independent
professional judgment. As a result, each client is entitled to :know of the existence
and implications of the relationship between the lawyer before the
lawyer agrees to undertake the representation. Thus, a lawyer related to another
lawyer, e.g., as parent, child, sibling or spouse, ordinarily may not rep-·
resent a client in a matter where that lawyer is representing another party,
unless each client gives informed consent. The disqualification arising :from
a close family relationship is personal and ordinarily is not imputed to
members of firms with whom the lawyers are associated. See Rule 1.10.
[12] The relationship between lawyer and client is a .fiduciary one in which
the lawyer occupies the highest position of trust and confidence. Because of
this fiduciary duty to clients, combining a professional relationship with any
intimate personal relationship raises concerns about conflict of interest, impairment
of the judgment of both lawyer and client, and preservation of at
Rule l.7 Massachusetts Rules of Professional Conduct
attorney-client privilege. These concerns are particularly acute when a lawyer
has a sexual relationship with a client.
Interest of Person Paying for a Lawyer’s Service
[13] A lawyer may be paid from a source other than the client, including a
co-client, if the client is informed of that fact and consents and the arrange
ment does not compromise the lawyer's duly of loyalty or independent
judgment to the client. See Rule 1.8(f). If acceptance of the payment from
any other source presents a significant risk that the lawyer's representation
of the client will be materially limited by the lawyer's own interest in ac
commodating the person paying the lawyer's fee or by the lawyer's responsibilities
to a payer who is also a co-client. then the lawyer must comply
with the requirements of paragraph (h) before accepting the representation,
Including determining whether the conflict is consentable and, if so, that the
client has adequate information about the material. risks of the representation.
Prohibited Representations
[14) Ordinarily, clients may consent to representation notwithstanding a
conflict. However, as indicated in paragraph (b), some conflicts are nonconseniable
meaning that the lawyer involved cannot properly ask for such
agreement or provide representation on the basis of the client's consent
When the lawyer is representing more than one client, the question of con,.
sentability must be resolved as to each. client ..
[15] Consentability is typically determined by considering whether the interests
of the clients will be adequately protected if the clients are permitted
to give their informed consent to representation burdened by a conflict of
interest. Thus, under paragraph (b)(1), representation is prohibited if in the
circumstances the lawyer cannot reasonably conclude that the lawyer will
be able to provide · competent and diligent representation. See Rule 1.1
(competence) and Rule 1.3 (diligence).
[16]Paragraph (b)(2) describes conflicts that are nonconsentable because
the. representation is prohibited by applicable law. For example, under fed-
eral criminal statutes certain representations by a former government lawyer
are prohibited, despite the informed consent of the former client In addition,
Chapter 268A of the General Laws may lbuit the ability of a lawyer to
represent both a state, county or municipal government or governmental
agency and a private party having a matter that is either pending before that
government or agency or in which the government or agency has an interest,
even when the interests of the government or. agency and the private party
appear to be similar.
Massachusetts Rules of Professional Conduct Rule 1.7
[17]Paragraph (b)(3) describes conflicts that are nonconsentable because of
the institutional interest in vigorous development of each. client's position
when the clients are aligned directly against each other in the same litigation
m· other proceeding before a tribunal. Whether clients are aligned directly
against each other within fire meaning of this paragraph requires examination
of the context of the proceeding. Although this paragraph does not preclude
a lawyer's multiple representation of adverse parties to a mediation
(because mediation is not a proceeding before a "tribunal" under Rule
1.0(p)), such representation may lie precluded by paragraph (b)(1).
Informed Consent
[18] Informed consent requires that each affected client be aware of the relevant
circumstances and of the material and reasonably foreseeable ways
that fire conflict could have adverse effects on the interests of that client. See
Rule 1.0(f) ('informed consent). The information required depends on the
nature of the conflict and the natu1·e of the risks .Involved. When representation
of multiple clients in a single matter is undertaken, the information
must include the implications of the common representation, including possible
effects on loyalty, confidentiality and the attorney-client privilege and
· · the advantages and 'risks involved. See Comments 30 and 31 (effect of
· common representation on _confidentiality).
[19 ]Under some circumstances it may be :impossible to make the disclosure
necessary to obtain consent. For example, when the lawyer represents different
clients in related matters and one of the clients refuses to consent to
. the disclosure necessary to· permit the other client to make an informed decision
the lawyer cannot properly ask the latter to consent In some cases
the alternative to common representation can be that each party may have to
obtain separate representation with the possibility of incurring additional
costs. These costs, along with the benefits of securing separate representation,
are factors that may be considered by the affected client in determining
whether common representation is in the client's Interests.
Consent Confirmed in Writing
[20] Paragraph (b) requires the lawyer to obtain the informed consent of the client, confirmed in writing. Such a writing may consist of a document executed by the client or one that the lawyer promptly records and transmits to the client following an oral consent. See Rule 1.0(c). See also Rule 1.0(q) (writing includes electronic transmission). If it is not feasible to obtain or transmit the writing at the time the client gives informed. consent, then the lawyer must obtain or transmit it within a reasonable time thereafter. See
Rule 1.7 Massachusetts Rules of Professional Conduct
Rule 1.0(c). The requirement of a writing does not supplant the need for the
lawyer to talk with the client, to explain the :risks and advantages, if any. of
representation burdened with a conflict of interest, as well as reasonably
available alternatives, and to afford the client a reasonable opportunity to
consider the risks and alternatives and to raise questions and concerns. Rather,
the writing is required in order to impress upon clients the seriousness
of the decision the client is being asked to make and to avoid disputes or
ambiguities that might later occur in the absence of a willing.
Revoking Consent
[21] A client who has given consent to a conflict may revoJre. the consent
and, like any other client, may te1?imite the lawyer's representation at any
time. Whether revoking consent to fue client's own· representation precludes
the lawyer from continuing to represent other clients depends on the-circumstances,
including the nature of the conflict, whether tlie · client revoked con_
sent because of a mate1:lal. mange in circumstances, the reasonable e'll:pectatioi;is
of the other client and whether material detriment to the other clients
would result.
Consent to Future Conflict
[22]Whether a lawyer may properly request a client to waive conflicts that
might arise in the future is subject to the test of paragraph (b), The effectiveness
of such waivers is generally determined by the extent to which the
client reasonably understands the material risks that the waiver entails. The
more comprehensive the explanation of the types of future representations
that might arise and the actual and reasonably foreseeable adverse consequences
of those representations, the greater the likelihood that the client
will have the requisite understanding. Thus, if the client agrees to consent to
a particular type of conflict with which. the client is already .familiar, then
the consent ordinarily will be effectively with regard to that type of conflict. If
the consent ls general and open-ended, then the consent ordinarily will be
ineffective, because it is not reasonably likely that the client will have understood
the material risks involved.· On the other hand, if the client is an·
experienced user of the legal services involved and is reasonably informed
regarding the risk that a conflict may arise, such consent is more likely to be
effective, particularly if, e:g., the client is independently represented by other
counsel in giving consent and the consent is limited to future conflicts un?related to the subject of the representation. In any case, advance consent
cannot be effective if the circumstances that materialized in the future are
such as would make the conflict nonconsentable under paragraph (b).
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