1 

2 

3 

4 

5 

6 

7 

8 

9 

10 

11 

12 

13 

14 

15 

16 

17 

18 

19 

20 

21 

22 

23 

24 

25 

26 

27 

28 

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 

40 N. Central Avenue, Suite 1800 

Phoenix, Arizona 85004-4408 

Telephone (602) 514-7500 

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

312 N. Spring Street, Suite 1200 

Los Angeles, CA 90012 

Telephone (213) 894-3391 

JOHN P. CRONAN 

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

REGINALD E. JONES (Miss. Bar No. 102806, reginald.jones4@usdoj.gov) Senior Trial Attorney, U.S. Department of Justice Child Exploitation and Obscenity Section 

950 Pennsylvania Ave N.W., Room 2116 

Washington, D.C. 20530 

Telephone (202) 616-2807 Attorneys for Plaintiff 

IN THE UNITED STATES DISTRICT COURT 

FOR THE DISTRICT OF ARIZONA 

United States of America, 

 Plaintiff, 

 v. 

Michael Lacey, et al., 

 Defendants. 

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

SUPPORT OF MOTION TO 

DISQUALIFY COUNSEL 

(HCM FIRM) 

[Reply to CRs 174 and 176] 

INTRODUCTION AND SUMMARY OF ARGUMENT 

From 2012-17, the law firm of Henze Cook Murphy (“HCM”) has served as Carl 

Ferrer’s personal criminal counsel and represented Ferrer in an array of lawsuits. Over this 

span, the HCM firm has prepared Ferrer to be deposed, obtained confidences from Ferrer, 

Case 2:18-cr-00422-DJH Document 192 Filed 06/13/18 Page 1 of 12
- 2 - 

1 

2 

3 

4 

5 

6 

7 

8 

9 

10 

11 

12 

13 

14 

15 

16 

17 

18 

19 

20 

21 

22 

23 

24 

25 

26 

27 

28 

and otherwise shaped Ferrer’s legal strategy. The crux of that strategy was to deny that 

Backpage had engaged in any wrongdoing with respect to the publication of advertisements 

for child and adult prostitution. 

Recently, Ferrer chose to obtain new counsel, terminate his relationship with the 

HCM firm, plead guilty to Backpage-related charges, and cooperate in the pursuit of 

criminal charges against other Backpage principals, including Michael Lacey. 

Remarkably, the HCM firm responded by filing a notice of appearance on behalf of Lacey. 

This prompted the United States to file a motion to disqualify. In response, Lacey (CR 

174) and the HCM firm (CR 176) have filed opposition briefs. 

Notably, both of the HCM-related briefs concede the HCM firm cannot ethically 

serve as trial counsel in this case due to the firm’s prior representation of Mr. Ferrer. For 

example, Lacey acknowledges “that HCM cannot participate in his defense at trial because 

HCM could not cross-examine Mr. Ferrer.” See CR 174 at 3. Similarly, the HCM firm 

acknowledges that its role must be “closely circumscribed” and “dramatically limit[ed]” 

and that it cannot participate in any way “in cross-examination or preparation for crossexamination.” See CR 176 at 10-12. Despite these important concessions, however, Lacey 

and the HCM firm urge the Court to deny the disqualification motion because (1) the HCM 

firm will agree to limit its representation to a handful of discrete issues that are purportedly 

not adverse to Mr. Ferrer, (2) Ferrer purportedly waived his attorney-client privilege with 

respect to HCM, and (3) Ferrer did not explicitly join in the disqualification motion. 

As explained below, these arguments are unavailing. First, this Court’s rules do not 

permit the sort of “limited representation” arrangement being proposed by the defense. An 

attorney who enters an appearance in a criminal case is responsible for all issues in the case 

and cannot seek to carve out a preferred subset of issues to litigate while disclaiming 

responsibility for everything else. The law of the Ninth Circuit, the applicable ethical rules, 

and common sense all make clear that, once the sort of stark ethical conflict at issue here 

(i.e., defense counsel served for five years as the cooperator’s personal attorneys) arises, 

the only remedy is disqualification. Furthermore, it is simply not true that, by limiting its 

Case 2:18-cr-00422-DJH Document 192 Filed 06/13/18 Page 2 of 12
- 3 - 

1 

2 

3 

4 

5 

6 

7 

8 

9 

10 

11 

12 

13 

14 

15 

16 

17 

18 

19 

20 

21 

22 

23 

24 

25 

26 

27 

28 

role to litigating forfeiture-related issues on Lacey’s behalf, the HCM firm can avoid any 

adversity with Ferrer. The forfeiture proceedings are virtually certain to involve a 

sustained attack by the defense on Ferrer’s credibility and an attempt to impeach Ferrer 

with prior statements he made while being represented by the HCM firm. 

Second, the claim that Ferrer waived the privilege as to the HCM firm is both 

inaccurate and irrelevant. Ferrer’s waiver only applied to Backpage’s corporate attorneyclient privilege, not his personal privilege with current or former counsel. Moreover, even 

if there were a personal waiver, disqualification is mandated because the HCM firm owes 

a duty of loyalty to Ferrer—a duty that is more expansive than the duty to maintain the 

confidentiality of privileged information. 

Third, and finally, the fact Ferrer did not formally “join” in the disqualification 

motion is a red herring. Multiple courts have recognized that such a joinder is 

unnecessary—the United States and the Court have an independent interest in ensuring the 

integrity of judicial proceedings. In any event, Ferrer’s conduct should not be viewed as 

some tacit acknowledgement that the HCM’s continued participation in this case is 

acceptable to him. Ferrer previously wrote a letter to the HCM firm objecting to its 

representation of Lacey and has further explained, in a declaration filed concurrently with 

this reply, that he didn’t join in the government’s motion simply because he didn’t think it 

was necessary to do so.

ARGUMENT 

A. The Proposed “Limited Representation” Arrangement Is Improper And Would Not 

Cure The Conflict 

 The primary argument developed in the two HCM-related briefs is that the HCM 

firm shouldn’t be disqualified because it will agree to provide “limited representation . . . 

on compliance with conditions of release, forfeiture, and unrelated personal matters” and 

will agree not to “act[] as trial counsel or shar[e] any confidential information with Mr. 

Lacey’s trial counsel in this prosecution.” See CR 174 at 3-4. The defense contends that, 

once the scope of the HCM firm’s representation is limited in this fashion, its participation 

Case 2:18-cr-00422-DJH Document 192 Filed 06/13/18 Page 3 of 12
- 4 - 

1 

2 

3 

4 

5 

6 

7 

8 

9 

10 

11 

12 

13 

14 

15 

16 

17 

18 

19 

20 

21 

22 

23 

24 

25 

26 

27 

28 

will “present[] no actual or potential conflict with its prior representation of Mr. Ferrer 

under Rule 1.9.” See CR 174 at 8-9. See also CR 176 at 9 (“By narrowly crafting HCM’s 

representation of Mr. Lacey, HCM has insured that its former client, Mr. Lacey, will 

receive the benefit of ER 1.9.”). 

 These arguments lack merit. As an initial matter, this Court’s rules do not permit a 

law firm to make a limited appearance on behalf of a criminal defendant, designate the 

subset of issues it wishes to be responsible for handling, and disclaim any responsibility 

for the remaining issues in the case. To the contrary, when an attorney or law firm enters 

a notice of appearance, it “shall be deemed responsible as attorney of record in all matters

before and after judgment until the time for appeal expires or until there has been a formal 

withdrawal from or substitution in the case.” See Ariz. L.R. Civ. P. 83.3(a) (emphasis 

added). See also Ariz. L.R. Crim. P. 57.14 (adopting same rule in criminal cases).1

 The defense’s unusual proposal would also create practical difficulties. Put simply, 

there would be no way for the United States, Ferrer, or the Court to verify whether the 

HCM firm was actually limiting its representation to the three topics identified in the 

opposition brief (i.e., forfeiture, release conditions, and “personal matters”). During the 

parties’ meet-and-confer process, the HCM firm’s proposed areas of representation were 

not limited to those three topics but also encompassed other areas, such as managing the 

defense team’s document database and “developing legal arguments,” that are amorphous 

and could easily be adverse to Ferrer. See Exhibit A (letter from defense counsel). The 

defense’s recent change in position only underscores the intractable monitoring problems 

that would arise if its proposal were accepted. 

 It is also notable that, despite providing 29 pages’ worth of briefing and argument, 

 

1

 Furthermore, although some other Districts authorize limited scope representation 

in certain circumstances, such representation is particularly disfavored in criminal cases. 

See District of Colorado’s website (“Limited Scope Representation (LSR). . . is permitted 

in the U.S. District Court for the District of Colorado in all civil cases . . . but NOT criminal 

cases . . . .”). 

Case 2:18-cr-00422-DJH Document 192 Filed 06/13/18 Page 4 of 12
- 5 - 

1 

2 

3 

4 

5 

6 

7 

8 

9 

10 

11 

12 

13 

14 

15 

16 

17 

18 

19 

20 

21 

22 

23 

24 

25 

26 

27 

28 

the two HCM-related briefs barely acknowledge—let alone attempt to distinguish—

Arizona Ethics Opinion 91-05, which was discussed in extensive detail in the United 

States’ motion. This opinion forbids exactly what the defense is attempting to do here (i.e.,

attempt to cure a conflict of interest by limiting the scope of the conflicted attorney’s 

representation). See Az. Ethics Op. 91-05 (“[The former client] will thus be confronted 

with the uncomfortable fact that her former lawyers are cooperating closely with a lawyer 

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

discomfort from arising.”). See also Roosevelt Irr. Dist. v. Salt River Project Agr. Imp. & 

Power Dist., 810 F. Supp. 929, 950-57 (D. Ariz. 2011) (analyzing interplay between 

Arizona Ethical Rules 1.9 and 1.10, expressing “grave concerns” about efficacy of 

screening, and emphasizing that a screened attorney must, in any event, have no role in the 

new case posing the conflict). 

The defense’s proposal also fails under Ninth Circuit law, which, like Arizona law, 

recognizes that the remedy for a conflict under ER 1.9(a) is disqualification, not using 

ethical screens or having conflicted counsel promise to limit its work to some subset of 

issues. See, e.g., United States v. Stites, 56 F.3d 1020, 1025 (9th Cir. 1995) (affirming 

disqualification order in criminal case and emphasizing that the district court was correct 

to “treat . . . skeptically” the defense’s proposal to set up an internal screen because such 

“an unusual arrangement [would be] almost impossible to monitor. The Chinese wall 

might have crumbled. It was within the discretion of the district court to reject it.”); United 

States v. Vargas-Martinez, 569 F.2d 1102, 1104 (9th Cir. 1978) (affirming disqualification 

of defense attorney due to prior representation of cooperating witness in state-court 

proceeding: “While a defendant’s choice of counsel should not be subject to unnecessary 

interference, this right is not unlimited. . . . [T]he only possible method of adequately 

resolving the problem was to order substitution of counsel . . . .”) (emphasis added). Cf. 

United States v. Stepney, 246 F. Supp. 2d 1069, 1085 (N.D. Cal. 2003) (recognizing “the

general principle that where an attorney has actually obtained confidential information 

relevant to her representation of a client, the law presumes that she cannot avoid relying on 

Case 2:18-cr-00422-DJH Document 192 Filed 06/13/18 Page 5 of 12
- 6 - 

1 

2 

3 

4 

5 

6 

7 

8 

9 

10 

11 

12 

13 

14 

15 

16 

17 

18 

19 

20 

21 

22 

23 

24 

25 

26 

27 

28 

the information—however indirectly or unintentionally—in forming legal advice and trial 

strategy”). 2

Finally, the HCM firm’s “limited representation” proposal also should be rejected 

because one of the issues the HCM firm wishes to continue litigating—forfeiture—would 

create a significant risk of adversity with Ferrer. One of the key disputed issues in the 

forfeiture proceedings will be whether the Backpage-derived money that was routed 

through Lacey’s bank accounts was tainted. Ferrer’s guilty plea, and the guilty plea that 

Ferrer entered on behalf of Backpage, provide strong support for the government’s view 

that the money is tainted. As a result, it is a virtual certainty that Lacey will seek to attack 

Ferrer’s credibility (and the admissions contained in his plea agreements) as part of the 

forfeiture proceedings. 

Indeed, it is anticipated that such forfeiture-related impeachment efforts will include 

impeaching Ferrer with prior testimony he provided while being represented by the HCM 

firm. In August 2015, Ferrer was deposed as part of the Backpage v. Dart case. The 

attorneys representing Ferrer during that deposition were Tom Henze and Janey Henze 

Cook, and Mr. Henze explained at the outset that, in an effort to prepare Ferrer to be 

deposed, he had spent “four to six hours . . . where we had Mr. Ferrer in the room.” See

Exhibit B at 12:1-10 (deposition excepts). Moreover, during recent proceedings in the Dart

case, the law firm of Davis Wright Tremaine (“DWT”) announced that it intends to use 

this deposition testimony to impeach Ferrer’s guilty plea. See Exhibit C at 13 (“Mr. 

 

2

 Although the defense has identified two decisions from outside the Ninth Circuit 

that approved the use of internal screens within the defense team to cure ethical conflicts, 

see United States v. Lorenzana-Cordon, 125 F. Supp. 3d 129 (D.D.C. 2015), and United 

States v. Caramadre, 892 F. Supp. 2d 397 (D.R.I. 2012), these non-binding decisions obviously cannot override Arizona and Ninth Circuit law. Moreover, those decisions are 

distinguishable because the former client in each case consented to the representation 

arrangement. Lorenzana-Cordon, 125 F. Supp. 3d at 138-39 (“[M]ost of the cases . . . in which courts rejected similar ‘Chinese Wall’ arrangements were complicated by the fact that either the defendant or the witness or both did not provide voluntary and knowing consent to . . . the ‘Chinese Wall’ arrangement. [Here], the witness consented to conflicted 

representation . . . and to the arrangement with Mr. Katzoff as second counsel.”); Caramadre, 892 F. Supp. 2d at 401 (same). 

Case 2:18-cr-00422-DJH Document 192 Filed 06/13/18 Page 6 of 12
- 7 - 

1 

2 

3 

4 

5 

6 

7 

8 

9 

10 

11 

12 

13 

14 

15 

16 

17 

18 

19 

20 

21 

22 

23 

24 

25 

26 

27 

28 

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.”).3

 

It is difficult to imagine a scenario where the conflicts of interest could be more 

stark. HCM wishes to represent Lacey in a forfeiture proceeding in which Lacey will seek 

to use Ferrer’s previous deposition testimony—testimony the HCM firm helped develop 

and defend while serving as Ferrer’s criminal counsel—to undermine Ferrer’s credibility. 

Disqualification is required to avoid this unseemly spectacle. 

B. The Privilege Waiver Arguments Are Inaccurate And Irrelevant

Lacey argues—in a section of his brief conspicuously devoid of any supporting case 

law—that the disqualification motion must be denied because Ferrer has waived his 

attorney-client privilege with the HCM firm. See CR 174 at 7-8. See also CR 176 at 7 

(same). 

This argument is easily rejected. As a threshold matter, it is not true that Ferrer has 

waived his personal attorney-client privilege with the HCM firm. On April 5, 2018, Ferrer 

executed a two-page document entitled “Waiver of Attorney Client Privilege.” It is 

enclosed as part of Exhibit B to Lacey’s motion. In the last paragraph of this document, 

Ferrer made clear that he was only waiving Backpage’s corporate attorney-client privilege 

and was not waiving his personal attorney-client privilege, either with his current attorneys 

(from the Clarence Dyer law firm) or with any attorneys who previously represented him 

on an individual basis: “I further state that this waiver does not apply to any aspect . . . of 

 

3

 During a recent hearing in R.O. v. Medalist Holdings (a tort lawsuit brought by a 

trafficking victim against Ferrer, Lacey, and Larkin), the DWT firm made similar 

statements. See Exhibit D at 53:24 – 54:1 (“Mr. Ferrer may be subject to cross-examination 

or discovery about his prior inconsistent statements.”). Notably, at the conclusion of the 

R.O. hearing, the trial judge disqualified DWT from representing Larkin and Lacey, finding 

that the case posed such “intertwined” conflicts of interest that DWT’s continued 

participation would “create an injustice on the administration of justice.” See Exhibit D at 

61:12-19. 

Case 2:18-cr-00422-DJH Document 192 Filed 06/13/18 Page 7 of 12
- 8 - 

1 

2 

3 

4 

5 

6 

7 

8 

9 

10 

11 

12 

13 

14 

15 

16 

17 

18 

19 

20 

21 

22 

23 

24 

25 

26 

27 

28 

my personal attorney-client relationship with attorneys who have represented me in the 

past or who currently represent me . . . .” Id. (emphasis added). The United States 

explained this distinction in a letter to defense counsel. See Exhibit E. 

Ignoring this document, Lacey points to a separate document—a “proffer 

agreement” that Ferrer executed on April 5, 2018—as the basis for his claim that Ferrer 

has waived his personal attorney-client privilege with the HCM firm. In particular, Lacey 

points to the proffer agreement’s second paragraph, which 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 communications with any attorney or law firm that represented 

Backpage.com, or any related entity, where such communications concerned or 

related to Backpage.com or any related entity. 

See CR 174, Exhibit B, at 2 ¶ B (emphasis added). Although this language is not a model 

of clarity, it was the parties’ intention that it would simply track the approach set forth in 

the formal “Waiver of Attorney Client Privilege” document—that is, it would only waive 

Backpage’s corporate attorney-client privilege but not Ferrer’s personal privilege. See

Exhibit F, ¶ 45 (Ferrer declaration). This is why the waiver only applied to 

“communications with any attorney or law firm that represented Backpage.com, or any 

related entity.” It was not meant to apply to attorneys and law firms that represented Ferrer 

in a personal capacity (such as the HCM firm). The prefatory language at the beginning of 

the paragraph, discussing Ferrer’s “personal or official capacity,” was simply meant to 

demonstrate that Ferrer had a basis for effectuating the corporate privilege waiver. 

Furthermore, even if the language in the proffer agreement could be construed as 

encompassing Ferrer’s personal attorney-client privilege with the HCM firm, the waiver 

was not an irrevocable or permanent one—it was simply a conditional agreement that, 

during Ferrer’s proffer sessions with the government, he would agree to discuss matters 

related to the HCM firm if asked to do so. This topic, however, has never been broached 

during Ferrer’s proffer sessions. Accordingly, nothing has been waived. 

Finally, the defense’s waiver arguments also fail for a more fundamental reason. 

Case 2:18-cr-00422-DJH Document 192 Filed 06/13/18 Page 8 of 12
- 9 - 

1 

2 

3 

4 

5 

6 

7 

8 

9 

10 

11 

12 

13 

14 

15 

16 

17 

18 

19 

20 

21 

22 

23 

24 

25 

26 

27 

28 

Disqualification is required in this circumstance because the HCM firm owes a duty of 

loyalty to Ferrer, which is broader than the duty to maintain confidences. As the Ninth 

Circuit has explained: “Disqualification does not depend upon proof of the abuse of 

confidential information. Because of the sensitivity of client confidence and the 

profession’s institutional need to avoid even the appearance of a breach of confidence, 

disqualification is required when lawyers change sides in factually related cases.” Trone 

v. Smith, 621 F.2d 994, 1001 (9th Cir. 1980). For this reason, courts have ordered 

disqualification under Rule 1.9 even where the former client’s communications with 

counsel have lost their confidentiality. See, e.g., United States v. Fawell, 2002 WL 

1284388 (N.D. Ill. 2002) (“[T]he court does not agree that the [loss of confidentiality] 

eliminates the conflict resulting from Altheimer’s prior representation . . . . That suggestion 

assumes that the purpose of Rule 1.9(a) is limited to protecting the former client’s secrets. 

Other courts and commentators do not view the purpose so narrowly; they conclude instead 

that the prohibition against representation of another person in a same or substantially 

related matter relates both to the lawyer’s duty of confidentiality and his or her duty of 

loyalty to that former client.”).4

 Put simply, under Rule 1.9, and absent informed consent,5

“[a] lawyer who has formerly represented a client in a matter shall not thereafter represent 

 

4

 See also Touchcom, Inc. v. Bereskin & Parr, 299 Fed. App’x 953, 955 (Fed. Cir. 

2008) (granting disqualification motion and emphasizing that Rule 1.9 “safeguards not 

only confidentiality, but also the client’s expectation of the attorney’s loyalty and public 

confidence in the integrity of the bar”); Sec. Investor Protection Corp. v. R.D. Kushnir & 

Co., 246 B.R. 582, 589 (N.D. Ill. Bkr. Ct. 2000) (“Rule 1.9 is not limited to situations 

where a former client would be harmed by the divulgence of confidential information. . . . 

[T]he loyalty principle is an independent and sufficient basis for precluding a lawyer from 

accepting an adverse subsequent representation.”); Selby v. Revlon Consumer Prods. 

Corp., 6 F. Supp. 2d 577, 582 (N.D. Tex. 1997) (“[T]he ethical obligations embodied in 

ABA Rule 1.9 go far beyond the preservation of client confidences. The rule also concerns 

the duty of loyalty to a former client.”). 

5

 Lacey suggests the proffer agreement is tantamount to an “informed consent” 

authorizing the HCM firm to represent Lacey. See CR 174 at 7. This claim requires little 

discussion. A privilege waiver is not the same thing as a conflict waiver. 

Case 2:18-cr-00422-DJH Document 192 Filed 06/13/18 Page 9 of 12
- 10 - 

1 

2 

3 

4 

5 

6 

7 

8 

9 

10 

11 

12 

13 

14 

15 

16 

17 

18 

19 

20 

21 

22 

23 

24 

25 

26 

27 

28 

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

are materially adverse to the interests of the former client.” See generally Foulke v. Knuck, 

794 P.2d 723, 728 (Ariz. Ct. App. 1989) (“ER 1.9(a) . . . does not require that confidences 

and secrets be divulged in order for a conflict to exist or for disqualification to be proper. 

Regardless of what was communicated during the representation of the former client, the 

rule prohibits subsequent representation of an individual whose interests are substantially 

adverse to those of the former client.”); Ariz. R. Prof. Conduct 1.9, comment 2 (“The 

underlying question is whether the lawyer was so involved in the matter that the subsequent 

representation can be justly regarded as a changing of sides in the matter in question.”). 

C. The Absence Of A Formal “Joinder” Is A Red Herring 

The defense’s final argument is that the Court should refrain from ordering 

disqualification “because Mr. Ferrer . . . declined to participate in the Government’s 

motion.” See CR 174 at 2. See also CR 176 at 12 (same). Lacey contends that the “failure 

to join the Government’s Motion strongly suggests the government is seeking 

disqualification for its own tactical reasons.” See CR 174 at 8. 

This argument misses the mark. Time and again, the courts have rejected the notion 

that a cooperator must formally “join” in the government’s disqualification motion. See, 

e.g., United States v. Kight, 2017 WL 4619024, *13 n.19 (N.D. Ga. 2017) (“[T]he Court 

rejects Kight’s argument that the Government, without Lankford’s permission, is precluded 

from seeking Armstrong’s disqualification or that Lankford was required to join in the 

Government’s Motion.”). As one court has explained, this argument “gives short shrift to 

the respective interests of the Government and the Court in ensuring that judgments remain 

intact on appeal” and “betray[s] a conception of the interests at stake . . . which is both 

unduly narrow and overly simplistic.” United States v. Culp, 934 F. Supp. 394, 399 (M.D. 

Fla. 1996). Indeed, even if the government hadn’t filed a motion, the Court would possess 

the independent authority to inquire into the potential conflicts posed by the representation 

arrangements in this case and, if necessary, order disqualification. Stepney, 246 F. Supp. 

2d at 1077 (“These supervisory powers unquestionably allow courts to require disclosure 

Case 2:18-cr-00422-DJH Document 192 Filed 06/13/18 Page 10 of 12
- 11 - 

1 

2 

3 

4 

5 

6 

7 

8 

9 

10 

11 

12 

13 

14 

15 

16 

17 

18 

19 

20 

21 

22 

23 

24 

25 

26 

27 

28 

of the precise nature of a criminal defendant’s representation to ensure that no conflict of 

interest exists . . . . Courts have routinely intervened—prior to any controversy arising—

where the circumstances of a criminal defendant’s representation raises the potential for 

conflict of interest during the course of the proceedings, even before intervention is 

required by statutory or constitutional rule.”). 

Finally, the defense should know better than to suggest that Ferrer is somehow 

agnostic to the issues presented here. On April 13, 2018, Ferrer wrote a letter to the HCM 

firm in which he practically begged Mr. Henze and Ms. Henze Cook to comply with their 

ethical duties under ER 1.9, emphasized that there was “a direct, incurable conflict between 

me and Mr. Lacey and Mr. Larkin,” and made clear that he was not consenting to their 

continued participation in this case. That letter was enclosed as Exhibit B to the United 

States’ disqualification motion. It is disingenuous for the defense to ascribe some nefarious 

motive to the government under these circumstances. Furthermore, Ferrer has now 

explained, in paragraphs 3-8 of the declaration enclosed as Exhibit F, that he strongly 

opposes the HCM firm’s efforts to represent Lacey and simply didn’t think it was necessary 

to join in the government’s motion. 

Respectfully submitted this 13th day of June, 2018. 

 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 

Case 2:18-cr-00422-DJH Document 192 Filed 06/13/18 Page 11 of 12
- 12 - 

1 

2 

3 

4 

5 

6 

7 

8 

9 

10 

11 

12 

13 

14 

15 

16 

17 

18 

19 

20 

21 

22 

23 

24 

25 

26 

27 

28 

 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 

Case 2:18-cr-00422-DJH Document 192 Filed 06/13/18 Page 12 of 12