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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) MARGARET PERLMETER (Ariz. Bar No. 024805, margaret.perlmeter@usdoj.gov) PETER S. KOZINETS (Ariz. Bar No. 019856, peter.kozinets@usdoj.gov) ANDREW C. STONE (Ariz. Bar No. 026543, andrew.stone@usdoj.gov) Assistant U.S. Attorneys 

JOHN J. KUCERA (Cal. Bar No. 274184,john.kucera@usdoj.gov) Special Assistant U.S. Attorney 

40 N. Central Avenue, Suite 1800 

Phoenix, Arizona 85004-4408 

Telephone (602) 514-7500 

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. 

Michael Lacey, et al., 

 Defendants. 

CR-18-422-PHX-SPL (BSB) UNITED STATES’ REPLY IN 

SUPPORT OF MOTION TO 

DISQUALIFY COUNSEL 

(DWT FIRM) 

[Reply to CR 180]

INTRODUCTION AND SUMMARY OF ARGUMENT 

The law firm of Davis Wright Tremaine (“DWT”) has represented Carl Ferrer, in 

his individual capacity, in an array of different lawsuits and contexts over the past few 

years. Although some of these representations occurred after December 2016 (which is 

when Ferrer was first asked to consider waiving future conflicts), others occurred before 

December 2016 and were not covered by any conflict waivers. Furthermore, the DWT 

firm specifically agreed, in its initial engagement letter with Ferrer, to withdraw from 

representing Michael Lacey and James Larkin if a conflict later arose. 

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Such a conflict has now presented itself. In April 2018, Ferrer pleaded guilty to 

Backpage-related charges and agreed cooperate in the pursuit of criminal charges against 

other Backpage principals, including Lacey and Larkin. In response, the DWT firm filed 

a notice of appearance on behalf of Lacey and Larkin. The ethical conflict posed by this 

arrangement—which is recognized by a well-developed body of case law precluding an 

attorney from serving as counsel in a criminal case if a prior client will be acting as a 

cooperator—prompted the United States to move to disqualify the DWT firm (see CR 118), 

and Lacey and Larkin have now filed an oversize opposition brief (see CR 180). 

The factual omissions and misstatements in this brief are striking. Notably, the 

defendants fail to disclose—in a brief dripping with incredulity at the very notion that any 

judge could perceive a conflict of interest here—that a judge recently disqualified the DWT 

firm from representing Lacey and Larkin in a Backpage-related civil case due to its prior 

representation of Ferrer. The defendants’ failure to mention this ruling, let alone attempt 

to reconcile their position and rhetoric with it, is difficult to fathom. 

The defendants’ brief also misstates the facts, in crucial ways, concerning the DWT 

firm’s track record of representing Ferrer. The gist of the defense’s position is that (1) the 

DWT firm never really acted as Ferrer’s individual counsel, but merely acted as some sort 

of umbrella counsel for the limited purpose of providing support to Ferrer’s other attorneys, 

and (2) these limited representations of Ferrer were always made pursuant to joint 

representation agreements in which Ferrer expressly agreed to allow DWT to continue 

representing Lacey and Larkin if a future conflict arose. Having conjured this particular 

set of circumstances, the defendants then cite various cases and ethics opinions suggesting 

that disqualification isn’t required under them. 

As the old saying goes, “Everybody is entitled to their own opinions, but not their 

own facts.” It is simply untrue that the DWT firm’s prior representations of Ferrer were 

limited in scope and unrelated to his individual capacity. Among other things, throughout 

2015 and 2016, the DWT firm represented Ferrer (without obtaining any conflict waivers) 

in Senate Permanent Subcommittee v. Ferrer. The title of this case should speak for 

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itself—it was a lawsuit against Ferrer—and the DWT firm confirmed in its notice of 

appearance that it was “appear[ing] in this case as counsel for Carl Ferrer.” The PSI case 

resulted in Ferrer, presumably at the DWT firm’s advice, refusing to comply with a 

congressional subpoena and being held in contempt of Congress—a finding the defense 

will likely seek to use in this case to impeach Ferrer. The conflicts posed by the DWT 

firm’s attempt to participate on both sides of this episode, and others like it, are self-evident. 

The defendants’ reliance on three “joint representation” agreements signed between 

December 2016 and June 2017 fares no better. In the first document, the DWT firm 

specifically agreed to withdraw from representing Lacey and Larkin in the event of a 

conflict with Ferrer, and the DWT firm wasn’t even a party to the second or third 

agreements. Furthermore, to the extent the waivers in those documents are enforceable 

(there are serious questions whether Ferrer gave informed consent), they merely preclude 

Ferrer from seeking to disqualify the other participants’ attorneys due to their receipt of 

privileged information during and as a result of the joint representation. Here, because the 

DWT firm’s relationship with Ferrer predates the agreements, the waivers are inapplicable. 

Finally, the defendants also seek to avoid disqualification by arguing that Ferrer 

waived confidentiality with the DWT firm (both expressly and by virtue of his decision to 

cooperate) and based on a balancing of interests. As explained below, these arguments are 

unavailing and are based on additional misstatements of the facts and law.

FACTUAL SUPPLEMENT 

Before addressing the merits of the defendants’ legal arguments, it is necessary to 

correct several key factual omissions and misstatements that appear in their brief. 

• Disqualification Ruling: On May 23, 2018—two weeks before the defendants 

filed their brief—a judge in Washington state disqualified the DWT firm from representing 

Lacey and Larkin in R.O. v. Medalist Holdings, a Backpage-related civil case, due to the 

firm’s prior representation of Ferrer. Specifically, the court found the DWT firm’s 

continued participation would “create an injustice on the administration of justice” due to 

“intertwined” conflicts. See Exhibit A at 61:12-19 (May 23 hearing transcript); Exhibit B 

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(May 24 letter from DWT firm confirming disqualification). 

• Nature Of Prior Representations: The defendants repeatedly assert that the DWT 

firm has never really represented Ferrer in an individual capacity. See CR 180 at 1 (“DWT 

has represented the Backpage parties collectively; Mr. Ferrer has had separate counsel 

representing him personally regarding potential criminal liability.”); id. at 4-5 (claiming 

the firm DWT merely “appeared on behalf of Ferrer in order to represent the company”). 

This claim is inaccurate. In its motion, the United States identified ten different 

lawsuits in which the DWT firm acknowledged—in its notice of appearance, its pleadings, 

and/or other correspondence—that it was representing Ferrer in an individual capacity. See 

CR 118, Exhs. D, E, F, G, H, J, L, N, P, R. In many of these instances, the DWT firm took 

pains to specify that it was representing both Ferrer and the Backpage entity and that the 

two were separate clients. See, e.g., CR 118, Exh. P (“My firm is counsel for Mr. Ferrer 

and Backpage, and I made that clear in my call.”). Finally, the enclosed declaration of 

Ferrer provides additional background concerning the wide array of matters in which the 

DWT has individually represented him over the years. See Exhibit I, ¶¶ 4, 9-22. Although 

the defendants may believe it is beneficial to their current litigating position to pretend 

these representations never occurred, the facts are not subject to serious dispute. 

The PSI litigation is particularly noteworthy. In October 2015, the PSI issued a 

subpoena to Ferrer for certain records. Ferrer, represented by the DWT firm, declined to 

comply or show up for the hearing. As a result, the Senate held him in contempt—the first 

such finding in decades—and initiated a lawsuit against him in federal court. Backpage 

was not a party to this proceeding. Afterward, the DWT firm filed a notice of appearance 

on Ferrer’s behalf, see CR 118, Exh. D (“I appear in this case as counsel for: Carl Ferrer”), 

and litigated unsuccessfully on his behalf. 

• Timing Of Joint Representation Agreements: The defendants assert that all of the 

DWT firm’s representations of Ferrer occurred pursuant to joint representation agreements 

under which Ferrer agreed to waive future conflicts. See, e.g., CR 180 at 1 (“DWT’s 

representation of Backpage parties has been pursuant to agreements among the parties that 

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anticipated and addressed potential conflicts . . . .”). 

This claim is also inaccurate. As noted, the DWT firm individually represented 

Ferrer in several matters before December 2016, including throughout 2015 and 2016 in 

the PSI case. These representations predated the execution of the first joint representation 

agreement discussed in the defendants’ pleadings—the December 12, 2016 engagement 

letter. The defendants’ chronology also falters with respect to the criminal prosecution of 

Ferrer, Lacey, and Larkin in California state court. That case was initiated in September 

2016, and the DWT firm made an appearance on Ferrer’s behalf—and began obtaining 

confidences from him—two months before the engagement letter was signed. See Exhibit 

C (DWT’s notice of appearance filed in October 2016). 

• DWT’s Role As Potential Fact Witness: The defendants’ brief also fails to address 

an additional development that is relevant to the conflict analysis. The DWT firm has now 

made clear that its strategy in this case, as well as other cases, will be to attempt to impeach 

Ferrer by pointing to declarations and deposition testimony from earlier cases in which he 

denied any wrongdoing at Backpage. About two weeks ago, the DWT firm filed a pleading 

in Backpage v. Dart stating that it intends to use Ferrer’s prior statements to impeach his 

guilty plea. See Exhibit D at 13 (“Mr. Ferrer’s statements in connection with his negotiated 

plea agreements are inconsistent with his prior sworn testimony in certain respects, and he 

will have to answer for the contradictions on his own.”). Similarly, the DWT firm 

announced during a recent hearing in R.O. that “Ferrer may be subject to cross-examination 

or discovery about his prior inconsistent statements.” See Exhibit A at 53-54. 

The difficulty with this approach is that the DWT firm played a key role in 

formulating Ferrer’s prior statements. For example, in June 2012, Ferrer submitted, as part 

of a lawsuit brought by the DWT firm, a declaration in which he denied that Backpage was 

engaged in any wrongdoing. See Exhibit E. The DWT firm’s billing records from that 

case show that several DWT attorneys helped edit and revise Ferrer’s declaration. See

Exhibit F at 12-13 (billing records for attorneys Stahl, Schattenkerk, and Doran on June 

26, 2012). Similarly, in June 2013, the DWT firm filed a verified complaint on behalf of 

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Backpage in a declaratory judgment action. See Exhibit G at 1-16. To supply the necessary 

verification, the DWT firm obtained and submitted a declaration from Ferrer. See Exhibit 

G at 17. And again, in September 2016, the DWT firm submitted a declaration from Ferrer 

as part of a civil lawsuit in Washington state court. See Exhibit H. 

The United States expects that, if Lacey and Larkin were to attempt to impeach 

Ferrer with these materials at trial, Ferrer would respond in part by explaining that the 

DWT firm drafted the declarations for him, provided him very little time to review the 

declarations before they were due, and placed pressure on him to sign the declarations. See 

Exhibit I (Ferrer declaration), ¶¶ 17-18. Avoiding such a spectacle—where defense 

counsel could become a fact witness midway through trial—is one of the reasons the 

United States sought to raise the ethical issues posed by this case well before trial. 

ARGUMENT 

A. The Defendants’ “Informed Consent” Theory Is Unavailing 

The defendants’ primary argument is that disqualification isn’t required because 

Ferrer signed three different “joint representation” agreements—a December 12, 2016 

engagement letter, a December 30, 2016 common interest agreement, and a June 2017 joint 

defense agreement (“JDA”)—in which he agreed that the DWT firm could continue 

representing Lacey and Larkin should a dispute arise. See CR 180 at 12-16. 

Notably, the defendants’ brief does not set forth the actual text of the waiver 

provisions contained in the three agreements. Instead, they have purported to summarize 

the agreements’ waiver provisions in their brief. This approach is regrettable because the 

defendants’ summaries are inaccurate. See Exhibit I (Ferrer declaration), ¶¶ 25-44. For 

example, the defendants suggest that, under the engagement letter, Ferrer acknowledged 

the DWT firm could continue representing Lacey and Larkin in the event of a dispute. See

CR 180 at 14 (“Ferrer gave informed written consent to DWT’s joint representation and to 

continued representation of others—Lacey, Larkin or Backpage-related entities they 

controlled—even if he decided to withdraw from the joint representation.”). This is a 

deeply misleading characterization. In fact, the letter provides that “[i]f an incurable 

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conflict were to arise among the three of you . . . DWT will withdraw from representing 

each and all of you individually, while continuing to represent Backpage.com . . . .” See

CR 118, Exh. A at 1 n.1 (emphasis added). In short, far from supporting the defendants’ 

position, the engagement letter reinforces that the DWT firm cannot continue representing 

Lacey and Larkin here. That is exactly what the DWT firm told Ferrer it would do. 

As for the common interest agreement, the document wasn’t signed by the DWT 

firm or any other lawyers. See Exhibit I (Ferrer declaration), ¶¶ 28-38. (Also, Ferrer’s 

description of this document suggests it isn’t covered by the attorney-client privilege. If 

the Court agrees, it should order the defendants to provide a copy to the government.) 

Finally, with respect to the JDA, the defendants’ brief uses vague language to 

suggest it contains a clause under which Ferrer expressly agreed the DWT firm could 

continue representing Lacey and Larkin in the event of a dispute. See CR 180 at 8 (“In the 

JDA, Ferrer again agreed not to seek disqualification of counsel even if he should withdraw 

from the agreement . . . and it was acknowledged that DWT was encompassed with the 

joint defense undertakings and protections.”). In fact, DWT was not a party to the JDA 

and declined to sign the document. See Exhibit I, ¶ 42. Thus, at most, the JDA might 

preclude Ferrer from seeking the disqualification of other defense attorneys, such as Mr. 

Piccarreta, who didn’t represent him but were signatories to the agreement—something the 

United States hasn’t done. 

The defendants’ reliance on the three joint representation agreements also fails for 

a different reason. A joint representation agreement operates prospectively and permits a 

group of similarly-situated parties to begin sharing information with each other 

confidentially. See generally United States v. Stepney, 246 F. Supp. 2d 1069, 1079-86 

(N.D. Cal. 2003). When a conflict waiver appears in such an agreement, it merely provides 

that a withdrawing defendant can’t seek disqualification of other attorneys based on any 

sharing of confidential information that occurred during, and as a result of, the joint 

defense. Id. at 1085 (excerpting model JDA, which provides that disqualification can’t be 

sought due to the disclosure of “Defense Material or other information contributed by such 

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client during the joint defense”) (emphasis added). See also United States v. Henke, 222 

F.3d 633, 638 (9th Cir. 2000) (conflict analysis in JDA cases turns on the nature of “the 

information about a former co-defendant/government witness learned through joint 

defense meetings”) (emphasis added). Here, the DWT firm’s relationship with Ferrer 

didn’t begin in December 2016, when the first engagement letter was signed, and wasn’t 

limited to participating in post-December 2016 joint defense meetings with Ferrer. Instead, 

the DWT firm individually represented Ferrer for several years before December 2016. 

The conflict waivers in the three joint representation agreements do not, and could not, 

encompass these earlier representations. See Farhat & Russell, Ethical Issues for White 

Collar Defense & Investigations Lawyers (2014) at 4 (“[B]ecause communications 

occurring before the existence of or after the termination of the JDA will generally not be 

protected, defining the temporal scope is important.”). 

The defendants’ conflict-waiver arguments also fail because there are serious 

questions whether Ferrer’s decision to agree to the provisions can be characterized as 

“informed” consent. For a conflict-waiver agreement to be valid, the client’s attorney must 

have “communicated adequate information and explanation about the material risks of and 

reasonably available alternatives to the proposed course of conduct.” Roosevelt Irr. Dist. 

v. Salt River Project Agr. Imp. & Power Dist., 810 F. Supp. 2d 929, 957 (D. Ariz. 2011) 

(quoting Ariz. ER 1.10). Here, as discussed in paragraphs 27 and 36-37 of Exhibit I, no 

such explanation was provided—the possibility of pleading guilty and cooperating was 

never addressed by the DWT firm. Cf. Roosevelt Irrigation District, 810 F. Supp. 2d at 

957 (waiver invalid because it did not address the scenario that later resulted in a conflict). 

Furthermore, the defendants’ suggestion that Ferrer’s consent must have been informed 

because he was “independently represented” (see CR 180 at 15) is belied by the fact that 

the engagement letter and the common interest agreement were not even shared with the 

lawyers acting as Ferrer’s personal criminal counsel at the time (i.e., the Clarence Dyer 

firm and the HCM firm) when those documents were presented to Ferrer. See Exhibit I, ¶¶ 

27, 37. Moreover, Ferrer was encouraged by Larkin’s counsel not to consult with his 

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personal attorneys before signing the common interest agreement and Ferrer was pressured 

to sign that document very quickly. See Exhibit I, ¶ 28-37. 

Finally, even if the three joint representation agreements did contain conflict 

waivers that were otherwise valid and textually applicable, the Court would be free to 

disregard them. United States v. Ross, 33 F.3d 1507, 1524 (11th Cir. 1994) (“[T]rial courts 

may refuse waivers of conflicts of interest to ensure adequacy of representation, to protect 

integrity of court, and to preserve trial judge’s interest to be free from future attacks over 

adequacy of waiver and fairness of trial.”) (citation omitted). The ethical conflicts are so 

stark here—the DWT firm seeks to represent Lacey and Larkin in a matter that is directly 

adverse to Ferrer despite serving as Ferrer’s individual counsel in more than a dozen cases 

over the last six years, agreeing in its engagement letter to withdraw from the Lacey and 

Larkin representations in the event of a dispute, being disqualified by other courts, and 

potentially serving as a fact witness—that disqualification is warranted. 

B. The Defendants’ “No Disqualification In Cooperation Cases” Theory Lacks Merit 

The defendants contend that disqualification is never required when an individual 

decides to withdraw from a joint representation agreement so he can cooperate. See CR 

180 at 16-18. In support of this view, they cite United States v. Almeida, 341 F.3d 1318 

(11th Cir. 2003), and United States v. Wings, 2007 WL 9676968 (N.D. Ga. 2007). 

This argument is easily rejected. In Almeida, two charged defendants (Fainberg and 

Almeida) entered into a post-indictment “oral joint defense agreement,” which Fainberg 

withdrew from on the eve of trial so he could plead guilty and cooperate. The trial judge 

“precluded Almeida’s counsel from using any information obtained from Fainberg in 

connection with the joint defense” but the Eleventh Circuit reversed, holding that 

Almeida’s attorney shouldn’t have been limited in this fashion because he’d never actually 

served as Fainberg’s attorney and thus didn’t owe a duty of loyalty to him: “A duty of 

loyalty . . . does not exist in this situation and it is therefore improper to conclude that all 

of the attorneys in the joint defense strategy session represent all of the participating 

defendants.” Id. at 1323. In reaching this result, the court made clear that was not 

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suggesting (as the defendants suggest here) that a cooperating defendant abandons all of 

his claims of confidentiality and loyalty with all attorneys—instead, it was focusing 

narrowly on the duties owed to a cooperator by an attorney who never individually 

represented the cooperator and whose only relationship with the cooperator arose from 

participation in a JDA: “[W]e do not hold that accomplices always waive the privilege 

when they testify on behalf of the government; nor do we hold that persons represented by 

the same attorney always waive the privilege in the event that one of them becomes a 

government witness against the other.” Id. at 1326. 

Similarly, in Wings, two men (Wings and Lumdsen) entered into a joint defense 

agreement, with each represented by separate counsel. 2007 WL 9676968 at *1. Postindictment, Lumdsen decided to withdraw from the agreement, plead guilty, and cooperate 

against Wings. Id. at *2. The government argued this changed circumstance required the 

disqualification of Wings’s attorney (Steel) but the district court disagreed, holding there 

was no conflict because Steel had never served as Lumdsen’s individual attorney: “[O]nce 

a defendant agrees to turn state’s evidence, he has voluntarily surrendered any the 

protections of attorney-client privilege, at least as to counsel of a co-defendant with whom 

he had a joint defense agreement.” Id. at *4 (emphasis added). 

Given this backdrop, Almeida and Wings are easily distinguishable. This is not a 

case where the DWT firm’s conflicts arise solely from representing a client who happened 

to be in a joint representation agreement with Ferrer. To the contrary, the DWT firm has 

repeatedly served as Ferrer’s individual counsel, both before and after the joint 

representation agreements were executed. 

C. The Privilege Waiver Arguments Are Inaccurate And Irrelevant

The defendants’ next argument is that the disqualification motion must be denied 

because Ferrer has waived his attorney-client privilege with DWT. See CR 180 at 18-20. 

This argument, which mirrors a similar argument made in the briefing related to the 

HCM firm, is both inaccurate and irrelevant. The United States incorporates by reference 

its discussion in the HCM-related reply. See CR 192 at 7-10. 

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D. Disqualification Is Required Under These Facts 

 The defendants’ last claim is that, even if the DWT firm’s participation could be 

deemed to violate ER 1.9, the Court shouldn’t order disqualification without first 

considering a multi-factor test that favors them. See CR 180 at 20-23. 

 As an initial matter, the test cited by the defendants is inapplicable. In Alexander v. 

Superior Court, 685 P.2d 1309 (Ariz. 1984), the Arizona Supreme Court clarified that this 

test should be applied only in circumstances where the former client never shared 

confidential information with counsel and where the sole basis for seeking disqualification 

is “the appearance of impropriety.” Id. at 1316-17. Here, Ferrer has shared a wide array 

of confidential information with the DWT firm over a span of many years. Thus, the 

disqualification rule embedded in ER 1.9—which is also reflected in the scores of 

disqualification cases cited in the United States’ motion—is applicable. 

 In any event, the Alexander factors favor disqualification. First, the motion was not 

filed for purposes of harassment. The representation arrangements being pursued here are 

highly irregular, are opposed by Ferrer, have prompted disqualification in analogous 

federal criminal cases, and have already prompted another judge (in the R.O. case) to 

disqualify the DWT firm. The case law affirmatively encourages prosecutors to seek 

disqualification in these circumstances. The defendants’ attempt to conjure a nefarious 

motive by pointing to asset-seizure efforts (see CR 180 at 21) is unavailing—the two issues 

are unrelated, and the asset-seizure orders were signed and approved by federal judges. 

 Next, the defendants’ standing arguments lack merit. This issue is addressed in the 

HCM-related reply, which is incorporated by reference. See CR 192 at 10-11. 

 Finally, as for the argument that the ethical conflicts posed by the DWT firm’s 

participation can be addressed through a limited-representation agreement that would 

authorize the DWT firm to eschew any trial-related responsibilities and focus only on First 

Amendment issues (see CR 180 at 22), this issue is addressed in the HCM-related reply, 

which is also incorporated by reference. See CR 192 at 3-7. 

Respectfully submitted this 13th day of June, 2018. 

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 ELIZABETH A. STRANGE 

 First Assistant United States Attorney 

 District of Arizona 

 

 /s Kevin Rapp

 KEVIN M. RAPP 

 MARGARET PERLMETER 

 PETER S. KOZINETS 

 ANDREW C. STONE 

 Assistant U.S. Attorneys 

JOHN J. KUCERA 

Special Assistant U.S. Attorney 

 JOHN P. CRONAN 

 Acting Assistant Attorney General Criminal Division, U.S. Department of Justice 

 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: Anne Chapman, Erin McCampbell, James 

Grant, Lee Stein, Paul Cambria, Robert Corn-Revere, Ronald London, Janey Henze Cook, 

John Littrell, Kenneth Miller, Thomas Bienart, Jr., Bruce Feder, Michael Kimerer, Rhonda 

Neff, KC Maxwell, David Wakukawa, Michael Piccarreta, Stephen Weiss. 

s/ Sally Hawley 

U.S. Attorney’s Office 

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