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ELIZABETH A. STRANGE

First Assistant United States Attorney District of Arizona

KEVIN M. RAPP (Ariz. Bar No. 14249, kevin.rapp@usdoj.gov)

DOMINIC LANZA (Cal. Bar No. 225989, dominic.lanza@usdoj.gov)

MARGARET PERLMETER (Ariz. Bar No. 024805, margaret.perlmeter@usdoj.gov)

Assistant U.S. Attorneys 40 N. Central Avenue, Suite 1800

Phoenix, Arizona 85004-4408

Telephone (602) 514-7500

JOHN J. KUCERA (Cal. Bar No. 274184, john.kucera@usdoj.gov)

Special Assistant U.S. Attorney

312 N. Spring Street, Suite 1200

Los Angeles, CA 90012

Telephone (213) 894-3391

JOHN P. CRONAN

Acting Assistant Attorney General

Criminal Division, U.S. Department of Justice

REGINALD E. JONES (Miss. Bar No. 102806, reginald.jones4@usdoj.gov)

Senior Trial Attorney, U.S. Department of Justice Child Exploitation and Obscenity Section 

950 Pennsylvania Ave N.W., Room 2116

Washington, D.C. 20530

Telephone (202) 616-2807 

Attorneys for Plaintiff

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF ARIZONA

United States of America,

Plaintiff, 

v. 

1. Michael Lacey, and

2. James Larkin,

Defendants.

CR-18-00422-PHX-SPL (BSB) 

UNITED STATES’ MOTION TO 

DISQUALIFY COUNSEL

INTRODUCTION AND SUMMARY OF ARGUMENT

Carl Ferrer, Michael Lacey, and James Larkin are the co-founders of the website 

Backpage.com. Over the last decade, the law firm of Davis Wright Tremaine (“DWT”) 

has represented Ferrer in an array of civil and criminal matters related to Ferrer’s work at 

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Backpage. In addition, the law firm of Henze Cook Murphy (“HCM”) has represented 

Ferrer in certain criminal proceedings related to Ferrer’s work at Backpage.

Recently, Ferrer severed his relationship with the DWT and HCM firms and entered 

a plea of guilty to federal criminal charges arising from his work at Backpage. See Case 

No. CR 18-464-PHX-DJH. Additionally, the grand jury recently returned a 93-count 

indictment charging seven other individuals, including Lacey and Larkin, with various 

crimes arising from their work at Backpage. It is expected that Ferrer will be a prosecution 

witness in any trial against Lacey and Larkin.

Notwithstanding all of this, lawyers from the DWT and HCM firms have now 

entered notices of appearance on behalf of Lacey (and, in the DWT firm’s case, also on 

behalf of Larkin). In the United States’ view, such representation is improper—a long line 

of cases (not to mention the applicable ethical rules) prohibit an attorney from representing 

a client in a criminal trial if a former client will be called as a cooperating prosecution 

witness and the former client does not consent to the representation. Here, Ferrer has 

specifically advised the DWT and HCM firms that he does not consent to their 

representation of Lacey and Larkin. See Exhibits A, B (Ferrer letters to DWT and HCM). 

Furthermore, DWT’s engagement letter with Ferrer, Lacey, and Larkin expressly provided 

that DWT would “withdraw from representing each and all of you individually” if the 

parties’ interests ever became adverse. See Exhibit A at 1 n.1. Accordingly, the United 

States moves to disqualify the DWT and HCM firms from further participation in this case. 

Finally, the Court should be aware that, before filing this motion, the United States 

met and conferred with attorneys from DWT and HCM (and certain other defense 

attorneys). As part of this process, the United States provided the citations discussed in 

this motion and participated in a conference call with defense counsel. Unfortunately, the 

parties were not able to reach a resolution. Defense counsel also requested that the United 

States postpone filing this motion until they had an opportunity to conduct further research 

and consultation. Although this was not an unreasonable request, the United States felt it 

appropriate (and required by the relevant case law) to file the motion as soon as possible, 

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particularly because some of the arguably-conflicted defense attorneys will be appearing 

at the April 30 status conference at which important trial deadlines may be established.

FACTUAL AND PROCEDURAL BACKGROUND

A. DWT’s and HCM’s Long Track Record Of Representing Ferrer

Since 2010, Ferrer has been named a defendant, in his personal capacity, in an array 

of Backpage-related lawsuits in state and federal courts across the country. The law firms 

of DWT and HCM have repeatedly represented Ferrer in those lawsuits. For example:

• In October 2015, the Senate Permanent Subcommittee on Investigations (“PSI”) 

issued a subpoena to Ferrer for certain Backpage-related documents. Later, the PSI filed a 

motion to compel in federal court in the District of Columbia. See Exhibit C. In response, 

the DWT firm filed a notice of appearance on Ferrer’s behalf (see Exhibit D) and proceeded 

to litigate the matter on Ferrer’s behalf. The district court ultimately ruled against Ferrer 

and ordered him to comply. Senate Perm. Subcomm. v. Ferrer, 199 F. Supp. 3d 125 

(D.D.C. 2016). Afterward, the DWT firm filed a notice of appeal on Ferrer’s behalf and 

sought a stay pending appeal. This request was denied by the district court, the D.C. 

Circuit, and the Supreme Court. Ferrer v. Senate Perm. Subcomm., 137 S. Ct. 28 (2016). 

• In September 2016, Ferrer, Lacey, and Larkin were charged with pimping-related 

offenses in a 10-count criminal complaint filed in California state court. People v. Ferrer

et al., 2016 WL 6091120 (Sac. Cty. Sup. Ct. 2016). Afterward, the DWT firm made an 

appearance on behalf of all three defendants and the HCM firm made an appearance solely 

on behalf of Ferrer. The DWT firm and the HCM firm then filed a joint motion to dismiss 

on Ferrer’s behalf. See Exhibit E (demurrer, identifying DWT firm as “Counsel for 

Defendants Carl Ferrer, Michael Lacey and James Larkin” and the HCM firm as “Counsel 

for Defendant Carl Ferrer”). In December 2016, the trial court granted the demurrer (based 

on state-law defenses not applicable in this case). People v. Ferrer, 2016 WL 7237305 

(Sac. Cty. Sup. Ct. 2016). 

• Since October 2016, certain sealed proceedings have occurred in the District of 

Arizona in which the DWT firm and the HCM firm have acted as Ferrer’s attorneys. See, 

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e.g., Sealed Exhibit F (February 2017 minute entry from sealed hearing: “Attorneys for 

Backpage.com and Carl Ferrer, Tom Henze, James Grant, Janey Henze Cook . . . .”); Sealed 

Exhibit G (April 2017 minute entry from sealed hearing: “Attorneys for Backpage.com 

and Carl Ferrer, Tom Henze, James Grant, Janey Henze Cook, client Carl Ferrer . . . .”).

• In January 2017, Ferrer was one of the named defendants in a civil lawsuit in 

California state court filed by a victim who had been trafficked via Backpage. Afterward, 

the DWT firm filed a notice of appearance on behalf of Ferrer and certain other defendants 

(see Exhibit H) and litigated on his behalf, including by removing the case to federal court 

(see Exhibit I). See Jane Doe v. Medalist Holdings LLC et al., CV 17-1264 (C.D. Cal.). 

• In January 2017, Ferrer was one of the named defendants in a civil lawsuit in 

Alabama state court filed by a victim who had been trafficked via Backpage. Afterward, 

the DWT firm filed a notice of appearance on behalf of Ferrer and certain other defendants 

(see Exhibit J) and litigated on his behalf, including by removing the case to federal court 

(see Exhibit K). See K.R. v. Backpage.com, LLC et al., CV 17-299 (M.D. Ala.). 

• In February 2017, Ferrer was one of the named defendants in a civil lawsuit in the 

Middle District of Florida filed by an advocacy group and by a victim who had been 

trafficked via Backpage. See Florida Abolitionist et al. v. Backpage.com LLC et al., CV 

17-218 (M.D. Fla.). Afterward, members of the DWT firm filed a representation certificate 

stating they represented all of the defendants, including Ferrer (see Exhibit L), and filed a 

motion to dismiss on Ferrer’s behalf (see Exhibit M).

• In February 2017, Ferrer was one of the named defendants in a civil lawsuit in the 

District of Arizona filed by domestic violence shelter. See Soujourner Center et al. v. 

Backpage.com LLC et al., CV 17-399-PHX-GMS (D. Ariz.). Afterward, members of the 

DWT firm filed a motion to dismiss on Ferrer’s behalf (see Exhibit N).

• In May 2017, the Missouri Attorney General’s office served a civil investigative 

demand notice on Ferrer seeking certain Backpage-related records. See Exhibit O. 

Afterward, the DWT firm contacted the Attorney General’s office, sought an extension of 

the compliance deadline, and made clear that the DWT firm was representing Ferrer in his 

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personal capacity. See Exhibit P (email from DWT firm dated June 19, 2017: “My firm 

is counsel for Mr. Ferrer and Backpage, and I made that clear in my call.”) (emphasis in 

original). The DWT firm then sought a permanent injunction to prevent Missouri “from 

enforcing the Civil Investigative Demand served on Backpage and its CEO Carl Ferrer.” 

See Exhibit Q. In November 2017, a federal district court denied this motion. See 

Backpage.com LLC v. Hawley, 2017 WL 5726868 (E.D. Mo. 2017). 

• In June 2017, Ferrer was one of the named defendants in a civil lawsuit in Oregon 

state court filed by a victim who had been trafficked via Backpage. Afterward, the DWT 

firm filed a notice of appearance on behalf of Ferrer and certain other defendants (see 

Exhibit R) and litigated on his behalf, including by removing the case to federal court (see 

Exhibit S). See Kocher v. Hilton Worldwide Holdings, Inc. et al., CV 18-449 (D. Or.). 

• In June 2017, Ferrer was one of the named defendants in a civil lawsuit in the 

District of Massachusetts filed by several victims who had been trafficked via Backpage. 

See Jane Doe No. 1 et al. v. Backpage.com LLC et al., CV 17-11069 (D. Mass.). Afterward, 

members of the DWT firm filed a notice of appearance on behalf of Ferrer and the other 

defendants, in which they claimed to “have particularized knowledge of the facts and legal 

issues in this case” (see Exhibit T), and later filed a motion to dismiss on the defendants’ 

behalf. Just recently, the district court denied that motion in part, holding that one of the 

plaintiffs had made a plausible allegation that Backpage “redrafted [her] advertisement 

. . . to suggest she was an adult.” See Jane Doe No. 1 v. Backpage.com, LLC, 2018 WL 

1542056, * 1 (D. Mass. 2018). 

B. Mr. Ferrer’s Guilty Plea

On April 5, 2018, Mr. Ferrer pleaded guilty to the crime of conspiracy to facilitate 

prostitution and to engage in money laundering. See CR 18-464-PHX-DJH, Dkt. No. 7. 

In the factual basis of his plea agreement, Mr. Ferrer specifically identified M.L. (i.e.,

Michael Lacey) and J.L. (i.e., James Larkin) as two of the individuals with whom he 

conspired. The factual basis, in its entirety, provides as follows:

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In 2004, I co-founded the website www.Backpage.com (“Backpage”), 

along with M.L. and J.L. Backpage eventually became the second-largest 

classified advertising website in the world and, during its 14 years of 

existence, has derived the great majority of its revenue from fees charged in 

return for publishing advertisements for “adult” and “escort” services.

I have long been aware that the great majority of these advertisements are, in 

fact, advertisements for prostitution services (which are not protected by the 

First Amendment and which are illegal in 49 states and in much of Nevada). 

Acting with this knowledge, I conspired with other Backpage principals 

(including but not limited to M.L, J.L, S.S., D.H., A.P, and J.V.) to find 

ways to knowingly facilitate the state-law prostitution crimes being 

committed by Backpage’s customers. For example, I worked with my coconspirators to create “moderation” processes through which Backpage 

would remove terms and pictures that were particularly indicative of 

prostitution and then publish a revised version of the ad. Such editing did 

not, of course, change the essential nature of the illegal service being offered 

in the ad—it was merely intended to create a veneer of deniability for

Backpage. These editing practices were only one component of an overall, 

company-wide culture and policy of concealing and refusing to officially 

acknowledge the true nature of the services being offered in Backpage’s 

“escort” and “adult” ads.

In addition to conspiring to knowingly facilitate the state-law prostitution 

offenses being committed by Backpage’s customers, I also conspired with 

other Backpage principals (including but not limited to M.L, J.L, S.S., J.B., 

and D.H.) to engage in various money laundering offenses. Since 2004, 

Backpage has earned hundreds of millions of dollars in revenue from 

publishing “escort” and “adult” ads. Over time, many banks, credit card 

companies, and other financial institutions refused to do business with 

Backpage due to the illegal nature of its business. In response, I worked with 

my co-conspirators to find ways to fool credit card companies into believing 

that Backpage-associated charges were being incurred on different websites, 

to route Backpage-related payments and proceeds through bank accounts 

held in the name of seemingly unconnected entities (including but not limited 

to Posting Solutions, Website Technologies, and Cereus Properties), and to 

use cryptocurrency-processing companies . . . for similar purposes.

Id. at 12-14 (emphases added). 

After entering his guilty plea, Ferrer wrote letters to the DWT and HCM firms 

requesting that they comply with the ethical duties they owed to him, as a former client, 

and withdraw from representing Lacey and Larkin. See Exhibits A, B. 

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C. The Proceedings In This Case

On April 6, 2018, Lacey and Larkin were arrested based on the charges contained 

in a 93-count federal indictment. See CR 4. The charges include conspiracy to facilitate 

prostitution (Count 1) and conspiracy to engage in money laundering (Count 52)—the 

same crimes to which Mr. Ferrer pleaded guilty—and are based on the same conduct 

addressed in the factual basis of Mr. Ferrer’s plea agreement. 

On April 9, 2018, the Court granted the pro hac vice applications of two attorneys 

from the DWT law firm (Robert Corn-Revere and Ronald London) to appear on behalf of 

Lacey. The following day, the Court granted the pro hac vice application of a third attorney 

from the DWT law firm (James Grant). This application was to appear on behalf of Lacey 

and Larkin. 

On April 9, 2018, Lacey filed an opposition to the government’s detention motion. 

See CR 23. The top of the first page identifies two DWT attorneys (James Grant and Robert 

Corn-Revere) as “Attorneys for Defendant MICHAEL LACEY.” Id.

On April 11, 2018, Judge Bade presided over a detention hearing for Lacey. One 

of the attorneys who represented Lacey at this hearing was from the HCM firm. See CR 

62 (minute entry: “Appearances: AUSA Kevin Rapp and AUSA Dominic Lanza for the 

Government, retained attorney Paul Cambria and Janey Cook for the defendant.”).

On April 13, 2018, Judge Bade presided over a continuation of Lacey’s detention 

hearing. This time, both of Lacey’s attorneys were from the HCM firm. See CR 65 (minute 

entry: “Appearances: AUSA Kevin Rapp and Dominic Lanza for the Government, retained 

attorney Tom Henze and Janey Cook for defendant.”). 

D. DWT’s Withdrawal From Other Ferrer Representations

On April 20, 2018, DWT submitted a letter to Ferrer explaining that, in light of 

recent developments, it would be withdrawing from all pending matters in which the firm 

had previously represented him in his personal capacity and/or any of the Backpage 

corporate entities. See Exhibit U. Included with the letter was a table identifying 17 such 

cases. Id.

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ARGUMENT

For years, the DWT and HCM firms represented Ferrer in civil and criminal 

litigation arising from Ferrer’s work at Backpage. Recently, Ferrer chose to terminate his 

relationship with those firms and to plead guilty to Backpage-related criminal charges. In 

the factual basis of his plea agreement, Ferrer expressly implicated Lacey and Larkin as 

his co-conspirators, and it is expected that Ferrer will be a key prosecution witness against 

Lacey and Larkin at trial. Notwithstanding all of this, the DWT and HCM firms are 

attempting to represent Lacey and Larkin in this matter. As explained below, such 

representation is improper. The DWT and HCM firms have an obvious and incurable 

conflict of interest and should be precluded from further participation in this case.

A. Arizona’s Ethical Rules Mandate Disqualification

The Arizona Rules of Professional Conduct provide the starting point for any 

disqualification analysis. Roosevelt Irr. Dist. v. Salt River Project Agr. Imr. & Power Dist., 

810 F. Supp. 2d 929, 944 (D. Ariz. 2010) (“The United States District Court for the District 

of Arizona has adopted the Arizona Rules of Professional Conduct as its ethical standards. 

Accordingly, this Court applies the Arizona ethical rules when evaluating motions to 

disqualify counsel.”). 

Here, the Arizona rules are directly on point and compel disqualification. Rule 

1.9(a) of the Arizona Rules of Professional Conduct provides that “[a] lawyer who has 

formerly represented a client in a matter shall not thereafter represent another person in 

the same or a substantially related matter in which that person’s interests are materially 

adverse to the interests of the former client unless the former client gives informed consent, 

confirmed in writing.” Comment 1 to Rule 1.9 elaborates: “Nor could a lawyer who has 

represented multiple clients in a matter represent one of the clients against the others in the 

same or a substantially related matter after a dispute arose among the clients, unless all 

affected clients give informed consent.”

Similarly, Rule 1.7(a)(2) of the Arizona Rules of Professional Conduct provides 

that, absent written consent from the prior client, an attorney may not represent a current 

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client if “there is a significant risk that the representation . . . will be materially limited by 

the lawyer’s responsibilities to . . . a former client.” Comment 28 to Rule 1.7 further 

explains that, “[i]n considering whether to represent multiple clients in the same matter, a 

lawyer should be mindful that . . . [o]rdinarily, the lawyer will be forced to withdraw from 

representing all of the clients if the common representation fails.”

The Arizona rules, in short, provide that the representation arrangement being 

pursued by the DWT and HCM firms is improper. Furthermore, one of the potential 

solutions that defense counsel proposed during the parties’ meet-and-confer process (i.e.,

setting up an internal screen within the defense team that would preclude the DWT and 

HCM firms from cross-examining Ferrer or otherwise sharing any privileged information 

they learned through their prior representation of Ferrer) is not an appropriate one. Indeed, 

in an ethics opinion issued more than 20 years ago, the Arizona State Bar’s Ethics 

Committee rejected this exact suggestion. See Az. Ethics Op. 91-05. There, a lawyer 

sought to represent the defendant in a federal criminal trial even though his firm had 

previously represented a key prosecution witness. In an effort to “cure” the conflict posed 

by this arrangement, the lawyer proposed hiring auxiliary counsel to conduct the crossexamination of the former client at trial. The ethics opinion rejected this proposal, 

explaining:

Does the involvement of [auxiliary counsel] eliminate the conflict of interest 

for [the attorney] and his law firm? If [auxiliary counsel] is not part of [the 

attorney’s] firm, and will conduct an independent investigation and cross 

examination of [the former client], may [the attorney] ethically continue the 

representation? We think not. One must remember that ER 1.9(a) is 

designed to protect [the former client]. It is intended to give [the former 

client] the assurance that her lawyer-client confidences will not be used 

against her. No matter how carefully [auxiliary counsel] and [the attorney] 

avoid discussing [the former client] or her prior representation by [the 

attorney’s] firm, they necessarily will engage in many communications 

about the criminal defense of [the defendant]. They will have to coordinate 

their facts, coordinate their theories, coordinate their arguments. [The 

former client] will thus be confronted with the uncomfortable fact that her 

former lawyers are cooperating closely with the lawyer who will cross 

examine her at trial. ER 1.9(a) is designed to prevent precisely such 

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discomfort from arising. [The former client] is “’entitled to freedom from 

apprehension’ that confidences will be revealed in a succeeding 

representation.”

Id. (emphases added).

Finally, it is notable that Ethics Opinion 91-05 also cited, with approval, the opinion 

in United States v. Cheshire, 707 F. Supp. 235 (M.D. La. 1989)—a case with obvious 

parallels to this case. In Cheshire, a defendant (Dyer) was charged with conspiring to bribe 

a public official (Jones). Id. at 237. During the early stages of the case, the official was 

represented by attorney Marabella, but the official subsequently hired new counsel, pleaded 

guilty, and agreed to serve as a prosecution witness at trial. Id. Afterward, Marabella 

sought to represent Dyer and argued he could “cure” any conflict of interest by 

“independently [hiring] co-counsel for the specific and limited purpose of cross 

examination of Jones and that Mr. Marabella will participate in neither the preparation for 

nor the cross examination.” Id. at 238. The district court rejected this suggestion and 

disqualified Marabella from further participation in the case, holding that the positions of 

Dyer and Jones were “materially adverse,” that the Dyer and Jones representations arose 

from a “substantially related matter,” and Marabella’s proposed solution would “not 

eliminate the conflict. . . . [T]his judge views it as an almost impossible task for a lawyer 

to participate throughout the course of a trial but not suggest a single question or style for 

cross examination of the most important witness against his present client.” Id. at 240. 

The court concluded by emphasizing that, although Dyer might have a Sixth Amendmentprotected interest in being represented by his counsel of choice at trial, that interest was 

not absolute and could be overridden by the federal judiciary’s “independent interest in 

ensuring that criminal trials are conducted within the ethical standards of the profession 

and that legal proceedings appear fair to all who observe them.” Id. (quoting Wheat v. 

United States, 486 U.S. 153, 160 (1988)).

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B. The Case Law Supports Disqualification

The relevant case law further supports the conclusion that the DWT and HCM firms 

should be disqualified from representing Lacey and Larkin in this matter. The Cheshire

case, discussed above, is simply one of a long line of decisions disqualifying criminal 

defense attorneys from participating in cases due to the expected participation of former 

clients as cooperators. For example:

• United States v. Ross, 33 F.3d 1507 (11th Cir. 1994). In Ross, the defendant 

retained a particular law firm to represent him in a drug trafficking case. Id. at 1522. One 

of the key prosecution witnesses was Aspuru, who had previously been represented by the 

same firm in a different drug-trafficking case. Id. As a result, the prosecution moved to 

disqualify the firm from representing Ross. Id. The district court granted the motion and 

the Eleventh Circuit affirmed, holding that “[t]he need for fair, efficient, and orderly 

administration of justice overcomes the [Sixth Amendment] right to counsel of choice 

where an attorney has an actual conflict of interest, such as when he has previously 

represented a person who will be called as a witness against a current client at a criminal 

trial.” Id. at 1523 (emphasis added). In reaching this conclusion, the court emphasized 

that “[f]ederal courts have an independent interest in ensuring that criminal trials are 

conducted within the ethical standards of the profession and that legal proceedings appear 

fair to all who observe them. . . . Not only the interest of a criminal defendant but the 

institutional interest in the rendition of just verdicts in criminal cases may be jeopardized 

by unregulated multiple representation.” Id. at 1524 (citation omitted).

• United States v. Moscony, 927 F.2d 742 (3d Cir. 1991). In Moscony, several 

employees of a real estate business were represented by the same law firm (“the Sprague 

firm”) during a grand jury investigation. Id. at 747. The grand jury then returned an 

indictment charging two of the individuals (Moscony and Cullen) with various crimes, and 

the government determined that the remaining individuals (including Thiel and 

Napolitano) were potential prosecution witnesses at trial. Id. When Moscony sought to 

retain the Sprague firm to represent him at trial, the government moved to disqualify. Id. 

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The district court granted the motion, holding that “Thiel’s trial testimony, which was to 

be corroborated by Napolitano, would be central to the government’s case,” that “vigorous 

cross-examination of these witnesses would be necessary,” and that “such crossexamination . . . if pursued would have violated ethical standards regarding privileged 

communications.” Id. at 747-48. The Third Circuit affirmed, emphasizing that “an actual 

conflict of interest obviously existed. Conflicts of interest arise whenever an attorney’s 

loyalties are divided, and an attorney who cross-examines former clients inherently 

encounters divided loyalties.” Id. at 750 (emphasis added).

• United States v. Williams, 81 F.3d 1321 (4th Cir. 1996). In Williams, an engaged 

couple (Williams and Martin) were the subjects of an FBI investigation into bank fraud. 

Id. at 1322-23. During the investigation, Martin retained an attorney, Crawley, to represent 

her. Id. The government eventually indicted Williams, declined to charge Martin because 

she did not engage in any wrongdoing, and voiced its intention to call Martin as a 

prosecution witness against Williams at trial. Id. Accordingly, when Williams sought to

retain Crawley (Martin’s former attorney) to represent him at trial, the prosecution moved 

to disqualify. Id. The district court granted the motion and the Fourth Circuit affirmed, 

holding that “disqualification of Williams’s counsel was well within the district court’s

discretion here. . . . Williams desired representation by the same lawyer who had 

represented a significant potential witness for the government with respect to the same 

crime. That lawyer would have faced [a] potential conflict . . . . Nor could that conflict 

so surely have been avoided by the device of retaining auxiliary counsel for the special 

purpose of cross-examining Ms. Williams that abuse occurred by not employing it rather 

than disqualifying counsel. Significant, unavoidable risks would have remained. After all, 

Crawley would remain at counsel table and likely be the auxiliary lawyer’s chief source of 

information about the case.” Id. at 1325 (emphasis added).

• United States v. Alfonzo-Reyes, 592 F.3d 280 (1st Cir. 2010): Defendant Morales 

attempted to retain a particular attorney, Sandoval, to represent her at trial, but the trial 

court determined that Sandoval was disqualified because Sandoval had previously 

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represented a potential prosecution witness (who had entered into a cooperation-based plea 

agreement) in a related matter. Id. at 293-94. Ultimately, the prosecution declined to call 

this witness at trial, and Morales was convicted. Id. On appeal, Morales argued the trial 

court’s disqualification decision violated her Sixth Amendment rights, but the First Circuit 

affirmed, explaining that “Attorney Sandoval’s representation may have placed her in the 

position of having to cross-examine her former client, a witness with whom she shared 

confidences protected by attorney-client privilege. The district court could conclude the 

matters were sufficiently related given some evidence linking the government’s potential 

witness . . . to co-defendant Morales. . . . Under these circumstances, the district court did 

not abuse its broad discretion in disqualifying Attorney Sandoval.” Id.at 294-95.

Notably, some of the defense attorneys in this case have been involved in decisions 

applying these principles. In United States v. Falzone, 766 F. Supp. 1265 (W.D.N.Y. 

1991), a defendant in a RICO case (Spano) retained “Mr. Paul J. Cambria, Jr., Esq., of the 

law firm of Lipsitz, Green, Fahringer, Roll, Salisbury and Cambria” to represent him at 

trial. Id. at 1266. Because one of the key prosecution witnesses (Fino) had been previously 

represented by Mr. Cambria, the prosecution moved for disqualification. Id. The district 

court granted the motion, holding that Fino hadn’t waived his right to confidentiality by 

cooperating with the government (id. at 1272-73) and that “it would be unfair to the 

government and Fino to allow Mr. Cambria to remain in the case. Mr. Cambria may have 

received confidential information from Fino during the course of their attorney-client 

relationship, and it would be unfair to allow him to use that information, either purposely 

or inadvertently, during a cross-examination of Fino at trial. . . . In addition, if it were to 

become known to the jury that Mr. Cambria was formerly Fino’s attorney, the jury might 

give undue weight to Mr. Cambria’s attack on Fino’s credibility during his opening 

statement, his cross-examination of Fino, and his summation.” Id. at 1275-76.

Finally, the Court should also be aware that the failure to order disqualification 

could result in future appellate issues. In United States v. Iorizzo, 786 F.2d 52 (2d Cir. 

1986), the defendant was the owner of a petroleum company who was charged with certain 

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financial crimes. Id. at 53. The government’s key witness was Tietz, a supervisor in the 

company’s accounting department, and Iorizzo’s trial counsel had previously represented 

Tietz in a state investigation into the same conduct. Id. at 54. Before trial, the prosecutor 

brought this conflict of interest to the trial court’s attention but did not expressly move for 

disqualification. Id. at 54-55. As a result, Iorizzo’s counsel was allowed to remain on the 

case. Id. However, when it came time to cross-examine Tietz, Iorizzo’s counsel refrained 

from asking certain questions due to concerns about the ethical propriety of doing so. Id.

at 57-58. As a result, the Second Circuit reversed Iorizzo’s conviction, holding that 

“Iorizzo . . . was entitled to a counsel unburdened by the ethical constraints resulting from 

prior representation of the government’s key witness.” Id. at 58. The Second Circuit 

concluded its opinion by encouraging prosecutors in future cases to file pretrial 

disqualification motions should similar concerns arise: “The prosecutors here were aware 

of defense counsel’s conflict of interest at an early stage and were invited by the district 

judge to make a disqualification motion in writing. We trust that this decision will ensure 

that a pretrial disposition of such issues will occur in the future.” Id. at 59.

Similarly, in United States v. Henke, 222 F.3d 633 (9th Cir. 2000), three co-workers 

(Henke, Desaigoudar, and Gupta) were indicted on securities fraud charges. Id. at 636. 

They initially entered into a joint defense agreement (“JDA”), but Gupta later withdrew 

from the JDA, entered into a cooperation-based plea agreement, and promised to testify 

against the remaining defendants at trial. Id. at 637. In response, the attorneys for Henke 

and Desaigoudar moved to withdraw on the ground that their “duty of confidentiality to 

Gupta under the joint defense agreement prevented [them] from cross-examining Gupta on 

matters involving information [they] learned as a result of the privileged pre-trial 

meetings,” but the district court denied the motion. Id. As a result, during trial, “Defense 

counsel conducted no cross-examination [of Gupta] for fear that the examination would 

lead to inquiries into material covered by the joint defense privilege.” Id. The jury voted 

to convict but the Ninth Circuit reversed, holding that the defense “lawyers’ ability to 

conduct their defense was impaired by a conflict of interest.” Id. at 635. Although the 

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Court stopped short of holding that disqualification is automatically required in such 

circumstances, the Court observed that an attorney ordinarily should “not be allowed to 

proceed against his former client in a cause of action substantially related to the matters in 

which he previously represented that client.” Id. at 637-38 (citation omitted).

CONCLUSION

For the reasons discuss above, the Court should disqualify the DWT and HCM firms 

from further participation in this case. The Court also may wish to inquire whether the 

DWT and HCM firms have shared any privileged information, gleaned from their prior 

representation of Ferrer, with the other defense attorneys in this case. 

Respectfully submitted this 25th day of April 2018.

ELIZABETH A. STRANGE

First Assistant United States Attorney

District of Arizona

JOHN P. CRONAN

Acting Assistant Attorney General

Criminal Division, U.S. Department of Justice

/s Kevin Rapp

KEVIN M. RAPP

DOMINIC LANZA

MARGARET PERLMETER

Assistant U.S. Attorneys

JOHN J. KUCERA

Special Assistant U.S. Attorney

REGINALD E. JONES

Senior Trial Attorney

U.S. Department of Justice, Criminal Division

Child Exploitation and Obscenity Section

Certificate of Service:

I hereby certify that on this date, I electronically transmitted the attached document to the 

Clerk’s Office using the CM/ECF system for filing and transmittal of a Notice of Electronic 

Filing to the following CM/ECF registrants: Paul Cambria, James Grant, Robert CornRevere, Ronald London, Janey Henze Cook. Exhibits Under Seal have been emailed to 

Paul Cambria, James Grant, Robert Corn-Revere, and Janey Henze Cook.

s/Zachry Stoebe

U.S. Attorney’s Office

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