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Paul J. Cambria, Jr. (Cal. Bar No. 177957)

LIPSITZ GREEN SCIME CAMBRIA LLP

42 Delaware Avenue, Suite #120

Buffalo, New York 14202

Telephone: (716) 849-1333

Facsimile: (716) 855-1580

Email: pcambria@lglaw.com

emccampbell@lglaw.com

Counsel for Defendant Michael Lacey

Thomas H. Bienert, Jr. (Cal. Bar No. 135311)

Kenneth M. Miller (Cal. Bar No. 151874)

John L. Littrell (Cal. Bar No. 221601)

BIENERT, MILLER & KATZMAN, PLC

903 Calle Amanecer, Suite 350

San Clemente, California 92673

Telephone: (949) 369-3700

Facsimile: (949) 369-3701

Email: tbienert@bmkattorneys.com

kmiller@bmkattorneys.com

jlittrell@bmkattorneys.com

Counsel for Defendant James Larkin

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF ARIZONA

United States of America,

 Plaintiff, 

v. 

Michael Lacey, et al., 

 Defendants. 

No. CR-18-00422-PHX-SPL (BSB)

OPPOSITION TO UNITED STATES’ 

MOTION TO DISQUALIFY COUNSEL

Oral argument requested

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TABLE OF CONTENTS

Page

TABLE OF AUTHORITIES.........................................................................................................ii

I. INTRODUCTION .............................................................................................................1

II. BACKGROUND ...............................................................................................................3

A. Overview of DWT’s Representation of Backpage ......................................................3

B. Agreements Among Backpage Parties for DWT’s Joint Representation....................6

C. Ferrer’s Plea Agreements and Communications With the Government 

Concerning DWT’s Representation.............................................................................8

D. The Government’s Motion and Revelations that Ferrer Had Waived All 

Claims of Attorney-Client Privilege ............................................................................9

III. ARGUMENT...................................................................................................................11

A. Under the Sixth Amendment and Arizona Law, the Court Should Not 

Disqualify Defendants’ Counsel on a Prosecutor’s Motion Except in Extreme 

Circumstances............................................................................................................11

B. Ferrer Gave Informed Consent to DWT’s Joint Representation and Conflict 

Waivers, and He Agreed Not to Seek Disqualification .............................................12

C. Ferrer’s Guilty Pleas and Agreement to Cooperate With the Government 

Precludes the Government’s Disqualification Motion...............................................16

D. Ferrer Has Waived All Claims to Protect Prior Confidential Privileged 

Communications........................................................................................................18

E. All Factors to Consider Regarding a Disqualification Motion Favor Denial of 

the Government’s Motion..........................................................................................20

IV. CONCLUSION................................................................................................................23

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TABLE OF AUTHORITIES

Page(s)

Federal Cases

Almeida. Murdoch v. Castro,

365 F.3d 688 (9th Cir. 2004).......................................................................................18

Backpage.com, LLC v. Cooper,

939 F. Supp. 2d 805 (M.D. Tenn. 2013).......................................................................4

Backpage.com, LLC v. Dart,

807 F.3d 229 (7th Cir. 2015), cert. denied, 137 S. Ct. 46 (2016).................................4

Backpage.com, LLC v. Hawley,

2017 WL 5726868 (E.D. Mo. Nov. 28, 2017)..............................................................5

Backpage.com, LLC v. Hoffman,

2013 WL 4502097 (D.N.J. Aug. 20, 2013)...................................................................4

Backpage.com, LLC v. McKenna,

881 F. Supp. 2d 1262 (W.D. Wash. 2012)....................................................................4

Doe ex. Rel. Roe v. Backpage.com, LLC,

104 F. Supp. 3d 149 (D. Mass. 2015), aff’d, 817 F.3d 12 (1st Cir. 

2016), cert. denied, 137 S. Ct. 622 (2017)....................................................................5

In re Grand Jury Subpoena No. 16-04-108

(D. Ariz.) .......................................................................................................................5

In re Grand Jury Subpoenas to Backpage.com, LLC and Village Voice 

Media Holdings, LLC,

No. GJ12-172RAJ (W.D. Wash. Jan. 17, 2013)...........................................................4

In re Paradyne Corp.,

803 F.2d 604 (11th Cir. 1986).....................................................................................22

In re Shared Memory Graphics LLC,

659 F.3d 1336 (Fed. Cir. 2011)...................................................................................14

In Roosevelt Irrigation Dist. v. Salt River Project Agric. Improvement & 

Power Dist.,

810 F. Supp. 2d 929 (D. Ariz. 2011).......................................................................6, 12

Lorenzana-Cordon, 125 F. Supp. 3d at 136 .....................................................................22

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Norton v. Tallahassee Mem’l Hosp.,

689 F.2d 938 (11th Cir.1982)......................................................................................11

Optyl Eyewear Fashion Int’l Corp. v. Style Cos., Ltd.,

760 F.2d 1045 (9th Cir.1985)......................................................................................11

Powell v. Alabama,

287 U.S. 45, 52 S. Ct. 55, 77 L. Ed. 158 (1932).........................................................11

Research Corp. Techs. v. Hewlett-Packard Co.,

936 F. Supp. 697 (D. Ariz. 1996)..........................................................................20, 21

Richards v. Holsum Bakery, Inc.,

2009 WL 3740725 (D. Ariz. Nov. 5, 2009)................................................................20

Sandoval v. Corizon, L.L.C.,

2017 WL 2687626 (D. Ariz. June 22, 2017) ..............................................................21

Senate Permanent Subcomm. on Investigations v. Ferrer,

856 F.3d 1080 (D.C. Cir. 2017) ....................................................................................5

United States v. Alfonso-Reyes,

592 F.3d 280 (1st Cir. 2010).................................................................................16, 20

United States v. Almeida,

341 F.3d 1318 (11th Cir. 2003).......................................................................17, 18, 20

United States v. Caramadre,

892 F. Supp. 2d 397 (D. R.I. 2012).........................................................................6, 15

United States v. Cheshire,

707 F. Supp. 235 (M.D. La. 1989)..............................................................................16

United States v. Diozzi,

807 F.2d 10 (1st Cir. 1986).........................................................................................11

United States v. Gonzales-Lopez,

548 U.S. 140, 126 S. Ct. 2557, 165 L.Ed.2d 409 (2006)........................................3, 11

United States v. Henke,

222 F.3d 633 (9th Cir. 2000).......................................................................................16

United States v. Moscony,

927 F.2d 742 (3d Cir. 1991)..................................................................................16, 20

United States v. Renda,

669 F. Supp. 1544 (D. Kan. 1987)..............................................................................22

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United States v. Ross,

33 F.3d 1507 (11th Cir. 1994)...............................................................................16, 20

United States v. Washington,

797 F.2d 1461 (9th Cir. 1986).....................................................................................12

United States v. Williams,

81 F.3d 1321 (4th Cir. 1996).......................................................................................16

United States v. Wings,

2007 WL 9676968 (N.D. Ga. Aug. 10, 2007) ............................................................18

Welch v. Paicos,

26 F. Supp. 2d 244 (D. Mass. 1998) ...........................................................................15

Wheat v. United States,

486 U.S. 153, 108 S. Ct. 1692, 100 L.Ed.2d 140 (1988)............................................11

State Cases

Alexander v. Superior Court,

141 Ariz. 157, 685 P.2d 1309 (1984).................................................................. passim

Amparano v. ASARCO, Inc.,

208 Ariz. 370, 93 P.3d 1086 (2004)......................................................................12, 22

Gomez v. Superior Court,

149 Ariz. 223, 717 P.2d 902 (1986)............................................................................12

Knapp v. Hardy,

111 Ariz. 107, 523 P.2d 1308 (1974)................................................................3, 12, 21

People v. Ferrer,

No. 16FE019224, 2016 WL 72373505 (Cal. Super. Ct. Dec. 9, 2016)........................6

People v. Ferrer,

No. 16FE024013 (Cal. Super. Ct. Aug. 23, 2017)........................................................6

Rodriguez v. State,

129 Ariz. 67 (1981).....................................................................................................12

Sellers v. Superior Court,

154 Ariz. 281 (Ariz. Ct. App.1987)............................................................................23

Villalpando v. Reagan, 211 Ariz. 305, 308, 121 P.3d 172 (2005) ...................................12

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Federal Statutes

18 U.S.C. § 371...............................................................................................................8, 9

18 U.S.C. § 1956(h)............................................................................................................8

47 U.S.C. § 230...................................................................................................................4

Rules

RPC 1.7(b)........................................................................................................................14

RPC 1.7 cmt. 21..........................................................................................................14, 15

RPC 1.9(a) ..................................................................................................................14, 19

Rule 1.7.......................................................................................................................13, 14

Rule 1.9.................................................................................................................13, 15, 20

Constitutional Provisions

Fifth Amendment..............................................................................................................11

Sixth Amendment ...................................................................................................3, 11, 22

Other Authorities

AM. LAW INSTITUTE – AM. BAR ASS’N, TRIAL EVIDENCE IN FEDERAL 

COURTS: PROBLEMS & SOLUTIONS at 35 (1999) .......................................................15

John W. Strong, MCCORMICK ON EVIDENCE § 91 (5th ed. 1999) ...................................17

OF THE LAW GOVERNING LAWYERS, § 122 cmt. D (2000) ..............................................14

RESTATEMENT (THIRD) OF THE LAW GOVERNING LAWYERS § 122 cmt. f & 

illust. 7 (2000).............................................................................................................14

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I. INTRODUCTION

The government has moved to disqualify Davis Wright Tremaine LLP (“DWT”) 

from representing James Larkin and Michael Lacey in this action. (Doc. 118; “Mot.”). 

The government contends DWT should be disqualified because Carl Ferrer (who was 

the CEO and later the owner of Backpage.com, LLC) has pleaded guilty and agreed to 

cooperate with the government in its prosecution of Messrs. Larkin and Lacey and 

others associated with Backpage.com. The government’s motion is based on 

misinformation about DWT’s past representation of Backpage parties and their express 

agreements requesting joint representation and waiving conflicts. The motion is also 

based on a facile view of the law concerning the circumstances when disqualification is 

required. The government’s motion falls well short of satisfying its burden of showing 

that this is one of the few “extreme circumstances” in which “a party to a lawsuit” –

here, the government – may “be allowed to interfere with the attorney-client relationship 

of his opponent.” Alexander v. Superior Court, 141 Ariz. 157, 161, 685 P.2d 1309

(1984). 

DWT has represented Backpage1 in a number of cases dating back to 2012, 

focusing on First Amendment and Internet free speech issues, for which the firm and its 

lawyers are nationally recognized. DWT has represented the Backpage parties 

collectively; Mr. Ferrer has had separate counsel representing him personally regarding 

potential criminal liability. DWT’s representation of the Backpage parties has been 

pursuant to agreements among the parties that anticipated and addressed potential 

conflicts and that provided DWT could continue its representation even if a party – such 

as Mr. Ferrer – decided to withdraw from the joint representation agreements. 

 

1 As used herein, “Backpage.com” refers to the website and Backpage.com, LLC, the 

company that operated the site. “Backpage” or the “Backpage parties” refers collectively 

to all of the entities and individuals that have been sued or charged concerning the 

website or have brought suit to invalidate government actions against the website.

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Given the actual circumstances regarding DWT’s representation, viewed in light 

of the applicable law, the government’s motion should be rejected for several reasons.

First, in the parties’ agreements, Mr. Ferrer requested and gave his informed 

consent to DWT’s joint representation, waived any conflicts, and promised not to seek 

disqualification of DWT for its continued representation of other parties. These 

agreements are consistent with and enforceable under Arizona Rules of Professional 

Conduct (“RPC”) 1.7 and 1.9.

Second, having agreed to plead guilty and cooperate with the government, Ferrer 

cannot assert that DWT’s prior joint representation requires disqualification now. 

Courts have held that when a party turns state’s evidence and attempts to target others in 

an effort to avoid or reduce his own punishment, he can no longer claim confidences as 

to communications with former joint counsel as a means to disqualify the counsel. 

Third, Ferrer cannot assert that prior communications with DWT under the 

parties’ joint representation agreements are somehow personal confidences of Mr. Ferrer 

that require DWT’s disqualification. The agreements allowed that all confidential and 

privileged communications could be shared among Ferrer, Lacey, Larkin and other 

Backpage parties (while being protected from disclosure to third parties). 

Fourth, Ferrer cannot claim DWT’s continued representation would contradict 

duties of confidentiality, given that he has expressly waived all claims of attorney-client 

privilege or work product protections (to full extent he can) as part of his plea deal. As 

courts have recognized, disqualification is improper in the face of such waivers.

Finally, the balancing of the parties’ interests tips sharply in favor of the rights of 

defendants to have their chosen counsel. The government has not shown it will suffer 

“substantial and irreparable harm” from DWT’s continued involvement. On the other 

hand, Lacey and Larkin would be prejudiced if they cannot continue with DWT, given 

the firm’s institutional knowledge, DWT’s successful representation in Backpage cases, 

the parties’ prior agreement to allow this representation, and the substantial burden and 

costs of having to engage new First Amendment counsel (especially given that the

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government has seized all of Lacey’s and Larkin’s assets, precluding retention of new 

counsel). Lacey and Larkin are represented here by their own individual criminal 

counsel (the undersigned). DWT’s role will be (as it has been) to address issues 

concerning the First Amendment, free speech and protections for Internet providers and 

users, and not as trial counsel. Even if there were a conflict, this is a reasonable 

alternative as compared to the Draconian approach of disqualification.

The Sixth Amendment guarantees an accused’s right to be “defended by the 

counsel he believes is best.” United States v. Gonzales-Lopez, 548 U.S. 140, 146 n.2, 

126 S. Ct. 2557, 165 L.Ed.2d 409 (2006). As the Arizona Supreme Court has 

recognized, a prosecutor’s motion to disqualify defendants’ counsel is “unseemly” and

“strike[s] at the very heart of the adversary system,” and, accordingly, prosecutors have 

“no standing to object to who will or will not represent the defendant or be associated as 

counsel.” Knapp v. Hardy, 111 Ariz. 107, 112, 523 P.2d 1308 (1974) (internal 

quotations omitted). Here, the government purports to be protecting Ferrer’s interests, 

yet acknowledges that he has refused to join in a motion to disqualify DWT (perhaps 

because of his agreements barring such a challenge). The government’s only remaining 

purported justification – its asserted concern for the “integrity of the trial” – fails in 

comparison to defendants’ Sixth Amendment rights. Indeed, even without showing 

prejudice, a wrongful disqualification of defendants’ choice of counsel would require

automatic reversal. 

II. BACKGROUND

A. Overview of DWT’s Representation of Backpage

DWT has represented Backpage in several cases dating back to 2012, concerning 

public officials’ censorship efforts; civil damage suits; government investigations; and 

ultimately criminal charges attacking the website. Village Voice Media Holdings, LLC 

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((“VVMH”); Backpage.com’s then-parent company)) retained DWT for its recognized 

expertise on First Amendment and Internet issues.2

For example, DWT represented Backpage.com in three cases involving state 

laws that created felony crimes targeting Backpage.com for third-party ads on the site, 

successfully enjoining all three statutes as contrary to the First Amendment and Section 

230 of the Communications Decency Act, 47 U.S.C. § 230 (“Section 230”). See 

Backpage.com, LLC v. McKenna, 881 F. Supp. 2d 1262 (W.D. Wash. 2012); 

Backpage.com, LLC v. Cooper, 939 F. Supp. 2d 805 (M.D. Tenn. 2013); 

Backpage.com, LLC v. Hoffman, 2013 WL 4502097 (D.N.J. Aug. 20, 2013).3

DWT represented Backpage.com in an action against the Sheriff of Cook 

County, Illinois, after he “embarked on a campaign to ... crush Backpage” by making 

threats to Visa and MasterCard to terminate use of their cards on the website. 

Backpage.com, LLC v. Dart, 807 F.3d 229, 230 (7th Cir. 2015), cert. denied, 137 S. Ct.

46 (2016). In that case, the Seventh Circuit entered a preliminary injunction, holding 

that the Sheriff had affected an unconstitutional informal prior restraint. Id.

DWT has represented Backpage regarding government investigations and 

subpoenas. DWT participated in suits challenging subpoenas issued by the United 

States Senate Permanent Subcommittee on Investigations (“PSI”) and by the Attorney 

General of Missouri. See Senate Permanent Subcomm. on Investigations v. Ferrer, 856 

F.3d 1080 (D.C. Cir. 2017); Backpage.com, LLC v. Hawley, 2017 WL 5726868 (E.D. 

 

2 See, e.g., Best Law Firms for Litigation – First Amendment, U.S. NEWS & WORLD

REP., https://bestlawfirms.usnews.com/search.aspx?practice_area_id=54&page=1 (last 

visited June 6, 2018); Practice Groups of the Year – Media and Entertainment, LAW 

360, https://www.law360.com/rankings/practice-groups-of-theyear?q=tag%3A%22Media+%26+Entertainment%22 (last visited June 6, 2018). 

. 

3 DWT also successfully represented Backpage in grand jury proceedings in the Western 

District of Washington on First Amendment grounds. Because the government has 

objected to descriptions of this litigation in publicly filed documents, further description 

of this litigation may be provided at the hearing on this matter, in camera, if necessary.

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Mo. Nov. 28, 2017). The subpoenas in these cases sought records of Backpage.com, 

although they were nominally directed to Ferrer in his capacity as Chief Executive 

Officer (“CEO”). DWT therefore appeared on behalf of Ferrer in order to represent the 

company. The same is true of DWT’s later involvement with a grand jury subpoena in 

this district. In re Grand Jury Subpoena No. 16-04-108 (D. Ariz.). DWT appeared on 

behalf of Ferrer there because the subpoena sought documents from Backpage.com and 

merely named Ferrer as a representative and custodian of Backpage.com. 

DWT has represented Backpage in civil cases, including, for example, Doe ex. 

Rel. Roe v. Backpage.com, LLC, 104 F. Supp. 3d 149 (D. Mass. 2015), aff’d, 817 F.3d 

12 (1st Cir. 2016), cert. denied, 137 S. Ct. 622 (2017). There, the district court and the 

First Circuit dismissed all claims against Backpage as preempted by Section 230 and 

because the plaintiffs’ allegations about the website could not establish “affirmative 

participation in an illegal venture.” Id. at 157. More recently, in the last year, 

plaintiffs’ counsel have brought a dozen cases asserting individual plaintiffs’ claims, 

naming as defendants every company with any connection to the website and Messrs. 

Ferrer, Larkin and Lacey. Along with local counsel, DWT appeared in the cases on 

behalf of all Backpage parties. See Mot. at 4-5 (citing several of these cases). 

In October 2016, the California Attorney General’s office brought criminal 

charges against Ferrer, Larkin and Lacey. DWT represented all defendants jointly, 

while each was represented individually by his own personal counsel. In the California

proceedings, DWT twice filed successful demurrers, with two judges dismissing all 

charges alleging pimping or money laundering on the theory that the defendants 

knowingly “profited from prostitution.” People v. Ferrer, No. 16FE019224, 2016 WL 

72373505, at *9 (Cal. Super. Ct. Dec. 9, 2016); see also Order, People v. Ferrer, No. 

16FE024013 (Cal. Super. Ct. Aug. 23, 2017). The courts held that “charg[ing] money 

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for the placement of advertisements” and “[p]roviding a forum for online publishing is 

a recognized legal purpose” under California law and Section 230. Id.at 13.

4

B. Agreements Among Backpage Parties for DWT’s Joint 

Representation.

As noted, Backpage.com formerly was a subsidiary of VVMH; the website was 

sold to entities owned by Ferrer in April 2015. See Declaration of James C. Grant ¶ 5

(“Grant Decl.”). Prior to the sale, DWT represented Backpage corporate entities (e.g., 

Backpage.com and VVMH), as the website and companies were under common 

ownership. Id. Ferrer was employed by Backpage.com (as a vice president and later as 

CEO), and DWT worked with him as a representative of the company. After the sale, 

DWT represented Backpage parties collectively pursuant to joint representation 

agreements and continued to work with Ferrer in the same representative role as before, 

as Backpage.com CEO. Since October 2016, when claims were first asserted against 

Ferrer, Lacey and Larkin as individuals (in the California criminal proceeding), each 

has had separate counsel regarding potential personal liability, while DWT has worked 

with these counsel pursuant to joint defense agreements. Id. ¶ 7.

Because the agreements about DWT’s representation are privileged, they are 

provided in camera declaration and are described here only generally.5

Shortly after the California Attorney General (“AG”) brought criminal charges 

against Ferrer, Larkin and Lacey, the parties entered into agreements for DWT’s joint 

representation. These included an engagement agreement between DWT and Messrs. 

Ferrer, Larkin and Lacey (dated December 12, 2016), and a more comprehensive 

 

4 DWT withdrew as counsel for Ferrer on January 24, 2018, while remaining as counsel 

for Larkin and Lacey and continuing to work with Ferrer and his counsel under the joint 

defense agreement (“JDA”).

5 Case law makes clear that it is appropriate to submit information in camera for a 

motion to disqualify. In Roosevelt Irrigation Dist. v. Salt River Project Agric. 

Improvement & Power Dist., 810 F. Supp. 2d 929 (D. Ariz. 2011); United States v. 

Caramadre, 892 F. Supp. 2d 397, 401, 404 n.7 (D. R.I. 2012).

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Common Interest and Litigation Management Agreement (dated December 31, 2016), 

executed by the three individuals on behalf of themselves and the Backpage-related 

companies they respectively controlled (i.e., all of the Backpage parties). See Grant 

Decl. Exs. A, B (filed in camera). These agreements recognized that the parties shared 

interests in defending claims related to Backpage.com. They spelled out the parties’ 

undertakings to retain joint counsel, share confidential information, and waive potential 

conflicts of interest. These agreements requested that DWT act as joint counsel – given 

the firm’s experience and prior successful representation of Backpage on First 

Amendment and Internet free speech issues. See Grant Decl. ¶ 15. As to any claims –

civil or criminal, whether then pending or that might arise in the future – Ferrer agreed 

to waive any actual or potential conflicts of interest to allow for the joint representation. 

Id. ¶ 16. Ferrer and the other parties agreed they would share information with one 

another and with joint counsel such as DWT, including attorney-client communications 

and work product, with the understanding that doing so would not provide any basis to 

assert putative conflicts. Id. ¶ 18. The agreements contemplated that the parties’ 

interests could diverge in the future, and therefore allowed that a party could withdraw 

from the joint representation but could not move to disqualify counsel from continuing 

to represent other parties. See id. ¶ 19. The agreements recited that each party had the 

opportunity to consult with individual counsel. Id. ¶ 11. Ferrer was personally 

represented by Nanci Clarence of Clarence Dyer Cohen LLP at the time – and therefore 

accepted the agreements with fully informed consent. Id. ¶ 7, 10.

Thereafter, in June 2017, Ferrer, Larkin, Lacey and others entered into a joint 

defense agreement (“JDA”),

6 providing for sharing of information and conflict waivers 

 

6 It is important to understand the distinction between joint representation (or “common 

interest”) agreements and joint defense agreements, as reflected here and in the law. 

Joint representation agreements are ones in which multiple parties hire the same counsel 

to represent their interests jointly. See, e.g., Alexander, 141 Ariz. at 162 (referring to 

this as “simultaneous representation”). JDAs are agreements among multiple parties and 

their respective counsel to work together and share information to advance common 

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among the parties and their counsel in connection with the California criminal case or 

other proceedings (the parties were aware by then that the government had commenced 

a grand jury investigation in this district). See Grant Decl. Ex. C (in camera). In the 

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

withdraw from the agreement. Grant Decl. ¶ 24. Here, as well, Ferrer was separately 

represented by Ms. Clarence, and it was acknowledged that DWT was encompassed 

within the joint defense undertakings and protections. Id. ¶ 21.

C. Ferrer’s Plea Agreements and Communications With the Government 

Concerning DWT’s Representation.

On April 5, 2018, Ferrer entered a personal guilty plea in this district to one 

count of conspiracy (18 U.S.C. § 371) and entered a plea on behalf of Backpage.com 

(and other Backpage parties he controls) to one count of money laundering (18 U.S.C. 

§ 1956(h)), committing to cooperate with the government in its prosecution of others,

including Messrs. Lacey and Larkin. See United States v. Ferrer, No. CR 18-464-

PHX-DJH (Dkt. 7). DWT had no involvement in Ferrer’s pleas (or any knowledge of 

them until a week after they were entered); Ferrer was represented by his personal 

counsel, Ms. Clarence. Grant Decl. ¶ 26.

On April 6, 2018, the government filed an indictment against Messrs. Larkin and 

Lacey and five other individuals who had been employed by or associated with 

Backpage.com, charging various crimes under the Travel Act and federal money 

laundering statutes (18 U.S.C. §§ 371, 1952, 1956, 1957). 

Also on April 6, DWT received a letter from Mr. Ferrer indicating that he would 

no longer waive conflicts of interest as to DWT’s joint representation. Grant Decl. ¶ 27

& Ex. D (in camera). Three days later, other counsel (Mike Piccarreta, counsel for 

Andrew Padilla) received a mailed letter from Mr. Ferrer’s counsel stating that he was 

withdrawing from the JDA. Id. ¶ 28 & Ex. E (in camera). 

 

defenses of claims or charges. This case involves both types of agreements. See Grant 

Decl. Exs. A, B (joint representation agreements), & C (JDA).

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Given Ferrer’s stated positions, on April 13, DWT gave notice that the firm 

could no longer represent him or Backpage.com in grand jury proceedings in this 

district. Id. ¶ 29 & Ex. F. DWT also received a letter from Ferrer that day, in which he 

asserted that an “incurable conflict” had arisen as to DWT’s representation of Larkin 

and Lacey and claimed his prior “informed consent” “would be no longer valid.” Id.

¶ 30 & Ex. G. Although the government has said it has not been privy to any of the 

agreements or communications between Ferrer and the other Backpage parties, see id. 

Ex. K at 2, 4, it provided a copy of this letter with its motion. See Mot. Ex. A. 

By letter dated April 20, DWT informed Ferrer that it would be withdrawing 

from representation of him and all Backpage.com parties (i.e., companies controlled by 

Ferrer) in all civil cases. See Grant Decl. Ex. H (also Mot. Ex. U). DWT followed that 

with a letter on May 2, 2018, correcting assertions Mr. Ferrer had made (e.g., in his 

April 6 and 13 letters), and noting that he had ignored or mischaracterized express 

terms of the joint representation agreements and the JDA in which he had requested and 

agreed to DWT’s joint representation, waived conflicts, and agreed not to seek 

disqualification of DWT. Id. ¶ 32 & Ex. I. 

D. The Government’s Motion and Revelations that Ferrer Had Waived 

All Claims of Attorney-Client Privilege.

The government correctly notes that the parties had a meet-and-confer call on 

April 25, 2018, in which defendants’ counsel asked then to defer any motion so the 

parties could attempt to resolve issues, and the United States Attorneys Office

(“USAO”) refused to do so. See Mot. at 2. The government filed its disqualification 

motion hours after the call. 

The government’s motion focuses on alleged harm to Mr. Ferrer’s interests if 

former counsel were to use personal privileged information disclosed in prior 

representation. See Mot. at 9-14. However, after the government filed its motion, 

defendants’ counsel learned that Ferrer had waived all claims of attorney-client privilege 

or work product protection for communications with DWT or other counsel. The 

government first revealed this, in part, on May 3, 2018, providing a copy of Mr. Ferrer’s 

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Waiver of Attorney-Client Privilege, which he had signed on April 5, 2018, three weeks 

before the government’s motion. Grant Decl. Ex. J. The USAO asserted then that 

Ferrer had executed only a “waiver of the corporate attorney-client privilege” but had 

“not waived his individual attorney-client privilege, as to either his current criminal 

defense attorneys or to the prior attorneys who represented him on an individual basis. “ 

Id. Ex. J, at 1 (emphasis in original). When defense counsel pressed, the government 

disclosed Ferrer’s “Proffer/Interview Agreement” (also signed April 5, 2018), which 

waived all of his rights to assert privilege claims as to any counsel who represented him 

in his personal capacity or as a representative of Backpage.com (excepting only Ms. 

Clarence and her firm). Id. Ex. K, at 5.

7

The government’s motion also asserted that Ferrer “does not consent to [DWT’s] 

representation of Lacey and Larkin.” Mot. at 2 (emphasis in original). Three weeks 

later, however, the government indicated Ferrer did not seek to disqualify DWT and 

refused to join the government’s motion to do so. Grant Decl. Ex. K at 4 (“Mr. Ferrer 

did not wish to be a party to this motion”; “the United States filed the motion on its own 

behalf, in the interest of protecting the integrity of the trial”). 

Defendants’ counsel repeatedly asked the government to provide information 

about Mr. Ferrer’s privilege waivers and his communications with the government, as 

such information would be relevant to the government’s motion. See Grant Decl. ¶ 36

& Exs. L, M. The government declined defendants’ requests. 

 

7 The Proffer/Interview Agreement states: “Mr. Ferrer voluntarily waives all claims of 

attorney-client privilege, whether in his personal or official capacity as the Chief 

Executive Officer of Backpage.com, LLC as to any communications with any attorney 

or law firm that represented Backpage.com or any related entity. This waiver does not 

apply to Mr. Ferrer’s current attorneys, Nanci Clarence and Jonathan Baum and anyone 

working on their behalf.” Grant Decl. Ex. K, at 5.

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III. ARGUMENT

A. Under the Sixth Amendment and Arizona Law, the Court Should Not 

Disqualify Defendants’ Counsel on a Prosecutor’s Motion Except in 

Extreme Circumstances.

The Sixth Amendment guarantees the right of non-indigent defendants to choose 

who will represent them, i.e., “that the accused be defended by the counsel he believes to 

be best.” Gonzalez-Lopez, 548 U.S. at 146. “The right to select counsel of one’s choice 

... has been regarded as the root meaning of the constitutional guarantee.” Id. at 147-48; 

see also Powell v. Alabama, 287 U.S. 45, 53, 52 S. Ct. 55, 77 L. Ed. 158 (1932) (Fifth 

Amendment due process guarantees protect a defendant’s “fair opportunity to secure 

counsel of his own choice”). “Where the right to be assisted by counsel of one’s choice 

is wrongly denied, therefore, it is unnecessary to conduct an ineffectiveness or prejudice 

inquiry to establish a Sixth Amendment violation.” Gonzalez-Lopez, 548 U.S. at 148. 

Such a denial of the right to counsel of choice requires automatic reversal.

Courts have “warned that disqualification of defense counsel should be a measure 

of last resort.” United States v. Diozzi, 807 F.2d 10, 12 (1st Cir. 1986); see also Norton 

v. Tallahassee Mem’l Hosp., 689 F.2d 938, 941 n.4 (11th Cir.1982) (A disqualification 

order “is a harsh sanction, often working substantial hardship on the client” and should 

therefore “be resorted to sparingly.”); As the Ninth Circuit has noted, disqualification 

motions are subject to “‘particularly strict judicial scrutiny’” because of potential abuse. 

Optyl Eyewear Fashion Int’l Corp. v. Style Cos., Ltd., 760 F.2d 1045, 1050 (9th 

Cir.1985) (quoting Rice v. Baron, 456 F. Supp. 1361, 1379 (S.D.N.Y. 1978)); see also, 

e.g., Wheat v. United States, 486 U.S. 153, 163, 108 S. Ct. 1692, 100 L.Ed.2d 140

(1988) (“the Government may seek to ‘manufacture’ a conflict in order to prevent a 

defendant from having a particularly able defense counsel at his side”). Thus, in moving 

to disqualify a defendant’s chosen counsel, “the government bears a heavy burden of 

establishing” that disqualification is justified. United States v. Washington, 797 F.2d 

1461, 1465 (9th Cir. 1986).

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Arizona law, which governs the Court’s consideration of the present motion, see

Roosevelt Irrigation Dist. v. Salt River Project Agric. Improvement & Power Dist., 810 

F. Supp. 2d 929, 944 (D. Ariz. 2011), is to the same effect. The Arizona RPC warn that 

“the purpose of the Rules can be subverted when they are invoked by opposing parties 

as procedural weapons.” Id. at 944 (quoting Ariz. RPC, Preamble ¶ 20). The Arizona 

Supreme Court “view[s] with suspicion motions by opposing counsel to disqualify a party’s 

attorney based upon conflict of interest” and places particular emphasis on the “public 

suspicion regarding an attempt by the state to disqualify a defendant’s attorney.” Gomez v. 

Superior Court, 149 Ariz. 223, 226, 717 P.2d 902 (1986); Villalpando v. Reagan, 211 Ariz. 

305, 308, 121 P.3d 172 (2005) (same); Amparano v. ASARCO, Inc., 208 Ariz. 370, 376, 93 

P.3d 1086 (2004) (RPC “are not designed to be used as a means to disqualify counsel”). 

Under Arizona law, the prosecution “has no standing to object as to who will or will not 

represent the defendant or be associated as counsel.” Knapp, 111 Ariz. at 112. “Not only 

does this strike at the very heart of the adversary system, but ‘for the prosecution to 

participate in the selection or rejection of its opposing counsel is unseemly if for no other 

reason than the distasteful impression which could be conveyed.’” Id. (quoting State v. 

Madrid, 105 Ariz. 534, 535, 468 P.2d 561 (1970)); accord Rodriguez v. State, 129 Ariz. 67, 

70 (1981).

Thus, “[o]nly in extreme circumstances should a party to a lawsuit be allowed to 

interfere with the attorney-client relationship of his opponent” and the burden falls on 

“moving party to show sufficient reason why an attorney should be disqualified from 

representing his client.” Alexander, 141 Ariz. at 161; accord Roosevelt, 810 F. Supp. 

2d at 944. As shown below, the government fails to satisfy its burden here.

B. Ferrer Gave Informed Consent to DWT’s Joint Representation and 

Conflict Waivers, and He Agreed Not to Seek Disqualification.

The government bases its motion on RPC 1.9 and 1.7, Mot. at 8-9, but

misunderstands the rules and their application on the facts of this case. 

Rule 1.9 concerns a lawyer’s responsibilities to former clients, and, more 

specifically, seeks to protect subsequent disclosure or use of a former client’s 

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confidential information. See RPC 1.9(a), 1.9(c).8 Rule 1.7, on the other hand, deals 

with a lawyer’s duties to current clients and addresses whether representation would be 

“materially limited” by responsibilities to another current client or former client.9

 Here, 

Lacey and Larkin are the current clients, and they not only accede to DWT’s continued 

representation but are the ones opposing the government’s motion to disqualify. The 

government cannot plausibly claim that it is protecting Lacey and Larkin’s interests 

under Rule 1.7. 

 

8 Rule 1.9 provides in relevant part:

(a) A lawyer who has formerly represented a client in a matter shall not thereafter 

represent another person in the same or 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. ...

(c) A lawyer who has formerly represented a client in a matter shall not thereafter:

(1) use information relating to the representation to the disadvantage of the 

former client except as these Rules would permit or require with respect to a 

client, or when the information has become generally known; or

(2) reveal information relating to the representation except as these Rules would 

permit or require with respect to a client.

9 Rule 1.7 provides: 

(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: ...

(2) there is a significant risk that the representation of one or more clients will be 

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 each affected client gives informed consent, 

confirmed in writing, and:

(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; and

(3) the representation does not involve the assertion of a claim by one client 

against another client represented by the lawyer in the same litigation or other 

proceeding before a tribunal.

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Regardless, both rules provide that a lawyer may continue representation when 

clients have provided “informed consent, confirmed in writing.” RPC 1.9(a); cf. RPC 

1.7(b). Ferrer did so here. He cannot retroactively “extinguish” his consent and 

conflict waivers, see Grant Decl. Exs. D, F, and the government cannot override 

Ferrer’s agreements on the premise of “protecting the integrity of the court.” See 

RESTATEMENT (THIRD) OF THE LAW GOVERNING LAWYERS § 122 cmt. f & illust. 7 

(2000) (revoking consent to the client’s own representation does not prevent the lawyer 

from continuing to represent other clients who have been jointly represented where 

revocation was not because of actions of the lawyer or former jointly-represented

clients and material detriment to them would result). 

Ferrer and the other parties requested and agreed to DWT’s joint representation 

to efficiently address issues and advance positions shared among all parties. See Grant 

Decl. Exs. A, B. The “rules of professional legal conduct recognize that in certain 

circumstances it is not only proper but beneficial for parties to contractually consent to 

a waiver of future conflicts of interest.” In re Shared Memory Graphics LLC, 659 F.3d 

1336, 1341 (Fed. Cir. 2011); see RESTATEMENT (THIRD) OF THE LAW GOVERNING 

LAWYERS, § 122 cmt. D (2000) (“[T]he gains to both lawyer and client from ...

advance consent to defined future conflicts might be substantial.”); RPC 1.7 cmt. 21 

(recognizing appropriateness of parties jointly contracting counsel and entering into 

advance conflict waivers). The Arizona Supreme Court likewise recognizes the value 

of permitting and encouraging joint representation, as such arrangements can reduce 

legal fees, avoid conflicts, and present a united front. Alexander, 141 Ariz. at 162. 

Ferrer gave informed written consent to DWT’s joint representation and to 

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

controlled – even if he decided to withdraw from the joint representation. See Grant 

Decl. Exs. A, B, I. As noted, Ferrer agreed to waive all conflicts relating to the joint 

representation as to any claims, expressly including future claims or criminal charges. 

He agreed that information provided to joint counsel could be shared with Larkin, 

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Lacey and all parties to agreements and could not be the basis of any claimed conflict. 

He acknowledged that he would not seek disqualification of joint counsel such as DWT. 

See id.

Mr. Ferrer’s agreements and waivers are enforceable. The joint representation 

agreements expressly anticipated the possibility of potential criminal charges and that 

one or more of the parties might later choose to withdraw from the joint representation 

because of divergent interests. See RPC 1.7 cmt. 21 (agreements addressing possible 

consequences are more likely enforceable). All the parties were experienced in litigation 

and legal services, having been involved in numerous cases over the prior five years. 

See id. (“if the client is an experienced user of the legal services involved and is 

reasonably informed regarding the risk that an unforeseeable conflict may arise, such 

consent is more likely to be effective”). Ferrer was independently represented. Id. 

(stressing factor of whether “the client is independently represented by other counsel in 

giving consent”); see also United States v. Caramadre, 892 F. Supp. 2d 397, 406 (D.

R.I. 2012) (that defendant had the opportunity to discuss conflict issues with separate 

counsel supported conclusion that he had knowingly consented); Welch v. Paicos, 26 F. 

Supp. 2d 244, 248-49 (D. Mass. 1998) (“With one distinguishable exception, we find no 

cases where consent of a former client, represented at the time by independent counsel, 

was held insufficient under Rule 1.9.”). See generally AM. LAW INSTITUTE – AM. BAR 

ASS’N, TRIAL EVIDENCE IN FEDERAL COURTS: PROBLEMS & SOLUTIONS at 35 (1999) 

(model JDA providing for advance waiver of conflicts and precluding disqualification if 

a signatory party decides to withdraw and cooperate with the government). 

None of the cases the government mentions in its squibs, see Mot. at 10-14,10

involved situations in which parties had entered into agreements waiving conflicts or 

 

10 United States v. Ross, 33 F.3d 1507 (11th Cir. 1994); United States v. Moscony, 927 

F.2d 742 (3d Cir. 1991); United States v. Williams, 81 F.3d 1321 (4th Cir. 1996); United 

States v. Alfonso-Reyes, 592 F.3d 280 (1st Cir. 2010); United States v. Cheshire, 707 F. 

Supp. 235 (M.D. La. 1989).

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precluding disqualification, and indeed, with one exception, none concerned joint 

representation agreements or JDAs at all.

11 The government’s motion fails from the 

outset in light of Mr. Ferrer’s agreements consenting to DWT’s representation.12

C. Ferrer’s Guilty Pleas and Agreement to Cooperate With the 

Government Precludes the Government’s Disqualification Motion.

The premise of the government’s motion is that counsel must be disqualified 

from representation when “a former client will be called as a cooperating witness.” 

Mot. at 2. Even aside from the parties’ agreements belying the government’s argument, 

its premise is wrong. Case law holds that, when an individual decides to abandon a 

joint representation agreement or JDA and turn state’s evidence, he thereafter has no 

grounds to seek to disqualify his former counsel. 

In United States v. Almeida, 341 F.3d 1318 (11th Cir. 2003), the Eleventh Circuit 

rejected a similar argument to disqualify a defendant’s counsel. There, the government 

charged two individuals, Almeida and Fainberg, with conspiracy to distribute cocaine. 

Represented by separate counsel, they entered into an oral joint defense agreement. Id.

at 1320. Shortly before trial, Fainberg agreed to plead guilty in exchange for a reduced 

sentence. Id. The government moved to disqualify Almeida’s attorney on the basis that 

 

11 In United States v. Henke, 222 F.3d 633 (9th Cir. 2000), which the government cites, 

Mot. at 14, the parties entered into a JDA, but the situation there was the converse of this 

case. A defendant’s counsel sought to withdraw because another party to the JDA (who 

became a cooperating witness) had not agreed to waive conflicts. Henke, 222 F.3d at 

638. Reflecting the presumption in favor defendants’ rights, the Ninth Circuit found the 

district court abused its discretion by not permitting defense counsel’s withdrawal. Id. 

The court also explained: “Nothing in our holding today is intended to suggest ... that 

joint defense meetings are in and of themselves disqualifying. We stress that it was 

defense counsel in this case that timely moved for disqualification.” Id.

12 The government says it has taken pains not to receive or review the parties’ joint 

representation agreements, so as to avoid intruding on privileges, see Grant Decl. Ex. K, 

at 4, and that was appropriate. The government says it proceeded with its motion based 

on consultations with Mr. Ferrer’s counsel “to confirm that the factual recitations in the 

motion were accurate.” Id. If this is so, however, it is apparent the representations 

unfortunately were incomplete and very inaccurate. 

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he had obtained confidential information from Fainberg in connection with the prior

joint defense and therefore had a conflict of interest. The district court agreed and 

entered an order barring Almeida’s counsel from using any information from Fainberg 

in cross examination during trial. Id. at 1321. 

The circuit court held that “Fainberg waived his attorney-client privilege when 

he turned state’s evidence, thereby entirely removing the possibility of a conflict of 

interest.” Almeida, 341 F.3d at 1324. This conclusion flowed from two tenets. First, 

where “the same attorney acts for two or more parties having a common interest, 

neither party may exercise the privilege in a subsequent controversy with the other.” Id.

at 1324 (quoting Garner v. Wofinbarger, 430 F.2d 1093, 1103 (5th Cir. 1970); see also 

John W. Strong, MCCORMICK ON EVIDENCE § 91 (5th ed. 1999) (clients jointly sharing 

information with an attorney “had obviously no intention of keeping these secrets from 

each other, and hence as between themselves, it was not intended to be confidential”). 

Second, the court noted the rule that “where an accomplice turns state’s evidence and 

attempts to convict others by testimony which also convicts himself, he thereby waives 

the privilege against disclosing communications between himself and counsel.” 

Almeida, 341 F.3d at 1325 (internal quotation omitted). 

[N]o witness shall be required to answer any question that may tend to 

criminate himself, yet the accomplice, when he enters the witness box with 

a view of escaping punishment himself, by a betrayal of his co-workers in 

crime, yields up and leaves the privilege behind him. He contracts to make 

a full statement, to keep back nothing .... He should be allowed no 

privileged communications. These he has voluntarily surrendered. The 

enforcement of such a rule may be the only protection the party on trial has 

left—the only means remaining to him to meet, it may be, the perjury of the 

criminal upon the witness stand.

Id. (quoting Alderman v. People, 4 Mich. 414 (Mich. 1857)). The Ninth Circuit has 

approved this analysis of Almeida. Murdoch v. Castro, 365 F.3d 688, 703 n.2 (9th Cir. 

2004); see also Murdoch , 365 F.3d at 704 (“[E]ach contract for testimony [from an 

accomplice] is fraught with the real peril that the proffered testimony will not be 

truthful, but simply factually contrived to ‘get’ a target of sufficient interest to induce 

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concessions from the government.” (quoting Commonwealth of N. Mariana Islands v. 

Bowie, 243 F.3d 1109, 1124 (9th Cir. 2001)). 

United States v. Wings, 2007 WL 9676968 (N.D. Ga. Aug. 10, 2007), reached the 

same conclusion in rejecting a government motion to disqualify counsel. There, two 

individuals (Wings and Lumsden) jointly hired a law firm to represent them and two 

companies they owned in connection with a government investigation. After the 

government issued an indictment charging bank and wire fraud, Lumsden agreed to 

plead guilty and testify against Wings. Id. at *2. Following Almeida, the court held that 

Lumsden had “voluntarily surrendered any ... 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. The court wrote: “To the extent the government is concerned about the harm to 

the integrity of the court, ... this concern is simply misplaced.” Id. “Mr. Lumsden

entered into a bargain by which he gave up his right to assert confidentiality as against 

[his former counsel]. In balancing the harm which would be suffered by Mr. Wings if 

[his counsel] is disqualified as against the harm to Mr. Lumsden if [the counsel] is 

allowed to cross-examine him, the court finds that Mr. Wing’s right to counsel of his 

choice should prevail.” Id. at *5. 

By entering into the plea agreements, Ferrer waived rights to claim confidentiality 

or disqualify joint counsel – even aside from his prior express agreements (discussed 

above) and his later express privilege waivers (discussed below). 

D. Ferrer Has Waived All Claims to Protect Prior Confidential 

Privileged Communications.

In any event, the government cannot urge disqualification purportedly to protect 

prior confidential communications of Ferrer when he has now waived all of his rights to 

protect any such confidences. Ferrer has waived his rights to claim privileges (except 

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as to Ms. Clarence’s firm) – on at least two occasions. 13 See Grant Decl. Ex. J at 4-5 

(Ferrer’s “Waiver of Attorney-Client Privilege” agreement); Ex. K at 5-7 (Ferrer’s 

“Proffer/Interview Agreement”). Put simply, Ferrer no longer has attorney-client 

confidences left to protect.14

The Arizona Supreme Court’s decision in Alexander is instructive here too. In 

that case, the former client/cooperating witness voluntarily disclosed his prior 

communications with counsel, and the court held that as a result the state could not seek 

disqualification. Because the witness had “revealed any information that might have 

been confidential, that information is no longer privileged.” 141 Ariz. at 163. “If the 

client himself does not treat the particular information as privileged, that 

communication will not be recognized as a confidence by this court.” Id. The court 

held that, even if it were presumed that the former client had shared confidential 

privileged information with counsel in connection with the prior representation,15 by 

waiving his rights to maintain the confidences, the “substantial relationship test” of 

RPC 1.9(a) “is not applicable,” and thus no conflict was present. Id. at 164. See 

Almeida, 341 F.3d at 1322 (when cooperating witness waived rights to claim privilege 

as to communications with former joint counsel, district court reversed its prior ruling 

finding a conflict with counsel’s continued representation of other client).

The cases the government cites are premised on concerns that an attorney’s 

ongoing representation would divulge a former client’s confidential information. See, 

 

13 The government has also alluded to a “cooperation addendum to Mr. Ferrer’s plea 

agreement,” which it says is under seal and has not been produced. Ex. K, at 2. This 

underscores defendants’ need for discovery the government has refused to provide. 

14 Defendants do not concede that Ferrer’s waivers entitle the government to access all 

communications with Backpage counsel, as the communications are the subject of joint 

privileges to which Larkin and Lacey (and the entities in which they hold ownership 

interests) are parties. Defendants’ counsel have notified the government of this concern.

15 See Alexander, 141 Ariz. at 163-64 (quoting T.C. Theatre Corp. v. Warner Bros. 

Pictures, Inc., 113 F. Supp. 265, 268-69 (S.D.N.Y. 1953) (noting that courts may 

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e.g., Ross, 33 F.3d at 1523; Muscony, 927 F.2d at 750; Alfonzo-Reyes, 592 F.3d at 294. 

But, in none of those cases had the former clients expressly disclaimed rights to protect 

attorney-client privileges – as Ferrer has done here. Cf, Alfonzo-Reyes, 592 F.3d at 294

(defendant asserted that witnesses were willing to waive their privileges, but the court 

rejected this argument as “hypothetical” because there was no record of any actual 

waivers). Moreover, the Arizona State Bar has opined that under RPC 1.9 “[t]he duty 

of confidentiality is the only duty owed by an attorney to a former client.” Ariz. Ethics 

Op. 92-03 (disqualification unnecessary where “confidential information ... is not in 

jeopardy”); see also Ariz. Ethics Op. 91-05 (RPC 1.9 is “for the protection of clients”). 

In this case, because Ferrer has waived the privilege to the full extent that he can (in his 

“personal or official capacity,” Grant Decl. Ex. K at 5), he has correspondingly waived 

any objections that DWT’s continued representation of Lacey and Larkin could 

improperly reveal confidences he does not have. 

E. All Factors to Consider Regarding a Disqualification Motion Favor 

Denial of the Government’s Motion. 

The government has shown no conflicts or breach of confidentiality that amount 

to violation of any ethics rule. But even if there were a conflict, that would not require 

automatic disqualification. See, e.g., Research Corp. Techs. v. Hewlett-Packard Co., 

936 F. Supp. 697, 703 (D. Ariz. 1996) (refusing to disqualify counsel despite conflict 

where circumstances made disqualification inappropriate); Richards v. Holsum Bakery, 

Inc., 2009 WL 3740725, at *5–6 (D. Ariz. Nov. 5, 2009) (“[W]hile potentially a matter 

of concern to the Arizona Bar, [the ethical violation] is not so egregious as to require the 

disqualification of counsel, as the substantial prejudice Plaintiff would incur by being 

forced to obtain new representation outweighs the other considerations.”). Rather, the 

Court would need to weigh several factors before ordering disqualification, specifically:

 

presume confidential information was shared in prior representation); Ariz. Ethics Op. 

91-05 (same).

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(1) whether the motion is being made for the purposes of harassing the 

defendant, (2) whether the party bringing the motion will be damaged in 

some way if the motion is not granted, (3) whether there are any 

alternative solutions, or is the proposed solution the least damaging 

possible under the circumstances, and (4) whether the possibility of public 

suspicion will outweigh any benefits that might accrue due to continued 

representation.

Sandoval v. Corizon, L.L.C., 2017 WL 2687626, at *5 (D. Ariz. June 22, 2017); accord 

Alexander, 141 Ariz. at 165.16 In this case, all these factors weigh against 

disqualification. 

As to the first factor, while defendants do not wish to impugn the government’s 

motives, it bears noting that the disqualification motion followed shortly after the 

government sought and obtained orders seizing essentially all assets of Messrs. Lacey 

and Larkin. See Alexander, 141 Ariz. at 165 (“By ‘drying up’ petitioners’ funds, the 

State has successfully prevented petitioners from engaging the services of a lawyer”). 

Second, the government has not shown that it will be harmed if DWT remains in 

the case. As explained, Arizona courts have indicated that the government does not 

even have standing to seek disqualification of criminal defense counsel, much less a 

sufficient interest to outweigh a defendant’s constitutional right to choice of counsel. 

See Knapp, 111 Ariz. at 112. And even in a civil case, a party seeking disqualification 

must establish “substantial and irreparable harm growing out of the ethical violation.” 

Sandoval, 2017 WL 2687626m at *4 (citing Richards v. Holsum Bakery, Inc., 2009 WL 

3740725, at *6 (D. Ariz. Nov. 5, 2009)). However laudable the government’s asserted 

interest to protect the “integrity of the process” may be, that does not amount to 

substantial, irreparable, or any harm if the Court were to deny the government’s motion. 

On the other hand, Messrs. Lacey and Larkin clearly would be harmed if they could no 

longer work with DWT and instead would have to retain new First Amendment/Internet 

 

16 This Court has also framed the analysis as weighing: “(1) the nature of the ethical 

violation, (2) the prejudice to the parties, including the extent of actual or potential delay 

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counsel. Even if they “were possessed of sufficient funds” to hire new counsel, the 

time, expense and inconvenience of doing so would be substantial. See Alexander, 141 

Ariz. at 165. And, the prejudice of disqualifying DWT would extend beyond Lacey and 

Larkin to the other defendants, who similarly stand to benefit from DWT involvement, 

expertise and knowledge. See United States v. Renda, 669 F. Supp. 1544, 1549 (D. Kan. 

1987) (“In an extremely complicated case it may cause a fundamental injustice to remove the 

one attorney whose intimate knowledge of the defense and whose close relationship with the 

defendants make him practically the only available attorney capable of presenting effective 

assistance of counsel.”) (emphasis original). 

Also, an “alternative solution” is reasonable and already in place. DWT’s role is not 

and never has been to act as criminal trial counsel for Larkin or Lacey (or, previously, for 

Ferrer). Rather, DWT has addressed legal issues under the First Amendment, federal statutes, 

and as regards the Internet. DWT can continue its longstanding role, while undersigned 

counsel will have responsibility for and act as trial counsel in defending Larkin and Lacey in 

this case. 

In effect, the government seeks to “transform the sixth amendment right to conflictfree counsel into a two-edge sword ... to sever defendants from those most able to protect 

their legitimate legal interests” In re Paradyne Corp., 803 F.2d 604, 611 (11th Cir. 1986). 

Depriving Messrs, Lacey and Larkin of their counsel “would certainly threaten the integrity 

of the judicial process.” Lorenzana-Cordon, 125 F. Supp. 3d at 136 (quoting

Caramadre, 892 F.Supp.2d at 408). And, to the extent the government advances its 

altruistic “integrity” argument to eliminate involvement of DWT, Arizona courts have 

held that such assertions are “too slender a reed upon which to rest disqualification of 

counsel.” Amparano v. ASARCO, Inc., 208 Ariz. 370, 378 (Ariz. Ct. App. 2004); see 

also Sellers v. Superior Court, 154 Ariz. 281, 289 (Ariz. Ct. App.1987); Alexander, 141 

Ariz. at 165. 

 

in the proceedings, (3) the effectiveness of counsel in light of the violations, and (4) the 

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IV. CONCLUSION

The Government has fallen far short of meeting its burden of showing the 

“extreme circumstances” necessary to warrant disqualification. As a result, the Court 

should deny the government’s motion to disqualify DWT as counsel for Messrs. Larkin 

and Lacey.

DATED: June 6, 2018 Respectfully submitted,

/s/ Paul J. Cambria, Jr.

LIPSITZ GREEN SCIME CAMBRIA LLP 

Attorneys for Defendant Michael Lacey

 /s/ Thomas Henry Bienert, Jr.

BIENERT MILLER & KATZMAN PLC 

 Attorneys for Defendant James Larkin

 

public's perception of the profession.” Research Corp., 936 F. Supp. at 703.

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CERTIFICATE OF SERVICE

I certify that on this 6th day of June, 2018, I electronically transmitted a 

PDF version of this document to the Clerk of Court, using the CM/ECF System, 

for filing and for transmittal of a Notice of Electronic Filing to the attorneys of 

record. See attached service list.

/s/ Toni Lindemann 

Toni Lindeman

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 SERVICE LIST

COUNSEL REPRESENTING

Anne M. Chapman

Mitchell Stein & Carey PC

1 Renaissance Sq. 

2 N Central Ave., Ste. 1900 

Phoenix, AZ 85004

Email: anne@mscclaw.com

Henze Cook Murphy, PLC

Lee Stein

Mitchell Stein & Carey PC

1 Renaissance Sq. 

2 N Central Ave., Ste. 1900 

Phoenix, AZ 85004

lee@mscclaw.com

Henze Cook Murphy, PLC

James C. Grant

Davis Wright Tremaine LLP

1201 3rd Ave., Ste. 2200 

Seattle, WA 98101-3045

jimgrant@dwt.com

Michael Lacey

Robert Corn-Revere

Davis Wright Tremaine LLP

1919 Pennsylvania Ave. NW, Ste. 800 

Washington, DC 20006

bobcornrevere@dwt.com

Michael Lacey

Ronald G. London

Davis Wright Tremaine LLP

1919 Pennsylvania Ave. NW, Ste. 800 

Washington, DC 20006

ronnielondon@dwt.com

Michael Lacey

Paul J. Cambria, Jr.

Liptsitz Green Scime Cambria LLP

42 Delaware Ave., Ste. 120 

Buffalo, NY 14202

pcambria@lglaw.com

Michael Lacey

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 SERVICE LIST

COUNSEL REPRESENTING

Janey Henze Cook

Henze Cook Murphy PLLC

4645 N 32nd St., Ste. 150 

Phoenix, AZ 85018

janey@henzecookmurphy.com

Michael Lacey

Bruce Feder

Feder Law Office PA

2930 E Camelback Rd., Ste. 160 

Phoenix, AZ 85016

bf@federlawpa.com

Scott Spear

Michael D. Kimerer

Kimerer & Derrick PC

1313 E Osborn Rd., Ste. 100 

Phoenix, AZ 85014

mdk@kimerer.com

John Brunst

Rhonda E. Neff

Kimerer & Derrick PC

1313 E Osborn Rd., Ste. 100 

Phoenix, AZ 85014

rneff@kimerer.com 

John Brunst

Gary S. Lincenberg

Bird Marella

1875 Century Park E # 23

Los Angeles, CA 90067

glincenberg@birdmarella.com

John Brunst

Ariel A. Neuman

Bird Marella

1875 Century Park E # 23 

Los Angeles, CA 90067

aneuman@birdmarella.com

John Brunst

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 SERVICE LIST 

COUNSEL REPRESENTING

Gopi Panchapakesan

Bird Marella

1875 Century Park E # 23

Los Angeles, CA 90067

gpanchapakesan@birdmarella.com

John Brunst

KC Maxwell

Maxwell Law, PC

899 Ellis Street

San Francisco, CA 94109

kcm@kcmaxlaw.com

Dan Hyer

Michael L. Piccarreta

Piccarreta Davis Keenan Fidel PC

2 E Congress St., Ste. 1000 

Tucson, AZ 85701

mlp@pd-law.com

Andrew Padilla

Jefferson Keenan

Piccarreta Davis Keenan Fidel PC

2 E Congress St., Ste. 1000 

Tucson, AZ 85701

jlk@pd-law.com

Andrew Padilla

Stephen M. Weiss

Karp & Weiss PC

3060 N Swan Rd. 

Tucson, AZ 85712

sweiss@karpweiss.com

Joye Vaught

Andrew Stone

US Attorney’s Office

40 N Central Ave, Ste 1800 

Phoenix, AZ 85004

andrew.stone@usdoj.gov

USA

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 SERVICE LIST 

COUNSEL REPRESENTING

John Jacob Kucera

US Attorney’s Office - Los Angeles, CA

312 N Spring St., Ste. 1200 

Los Angeles, CA 90012

john.kucera@usdoj.gov

USA

Kevin M. Rapp

US Attorney’s Office - Phoenix, AZ

2 Renaissance Square 

40 N Central Ave., Ste. 1800 

Phoenix, AZ 85004-4408

kevin.rapp@usdoj.gov

USA

Margaret Wu Perlmeter

US Attorney’s Office - Phoenix, AZ

2 Renaissance Square 

40 N Central Ave., Ste. 1800 

Phoenix, AZ 85004-4408

margaret.perlmeter@usdoj.gov

USA

Peter Kozinets

US Attorney’s Office - Phoenix, AZ

2 Renaissance Square 

40 N Central Ave., Ste. 1800 

Phoenix, AZ 85004-4408

peter.kozinets @usdoj.gov

USA

433438-1 

Case 2:18-cr-00422-DJH Document 180 Filed 06/06/18 Page 34 of 34