Ineffective Assistance of Counsel by Disbarred Attorney Matters Little

Circuit Rejects Bid for Habeas Despite Disbarred Lawyer's Role
The New York Law Journal by Mark Hamblett  -  May 24, 2012

A defendant who has an attorney of record but relies on a disbarred lawyer as his de facto counsel cannot claim automatic ineffective assistance of counsel under the Sixth Amendment, the U.S. Court of Appeals for the Second Circuit ruled yesterday.  Although the circuit used Elfgeeh v. United States, 10-4498, to extend the rule that non-lawyer legal assistance is per se ineffective assistance given by disbarred lawyers, it refused to allow Abad Elfgeeh to invoke the rule because he also took advice from a licensed attorney who signed court papers and made all court appearances on his behalf.  Elfgeeh relied on the advice of Burton Pugach, who was disbarred in 1960 for hiring three men to throw lye in the face of his ex-girlfriend, Linda Riss, leaving her with severe injuries and nearly blind.

Elfgeeh was indicted in 2003 for operating and conspiring to operate a money transmitting business without a license.  He was initially represented by Dawn Cardi, who was appointed under the Criminal Justice Act. Cardi filed a motion to suppress evidence and when that motion was denied, suggested Elfgeeh plead guilty. He did so in October 2003.  A friend then recommended that Elfgeeh turn to Pugach and after a meeting, Pugach advised him that the government had a weak case and he should move to vacate the plea.  Pugach told Elfgeeh it would cost $10,000 to make the motion. He accepted $500 for the initial consultation and another $500 when Elfgeeh gave him the file on the case.  When Pugach visited Elfgeeh a few days later to collect the fee, he told him to make the check out to Frank Hancock, a solo practitioner for whom Pugach worked as a paralegal and who would later be disbarred for helping Pugach engage in the unauthorized practice of law.  Elfgeeh and Pugach met with Hancock at his Queens office. Pugach again suggested withdrawing the plea, but Hancock advised against it. Pugach prevailed, however, and Hancock contacted Cardi to tell her he had been retained by Elfgeeh.  Hancock filed the motion to vacate the plea in February 2004. While the motion was denied, the district court sua sponte vacated the plea because a magistrate judge had failed to properly advise Elfgeeh of the maximum term he could serve if he were sentenced consecutively on the counts charged.  The government then filed a superceding indictment adding a charge for structuring transactions to evade reporting requirements under 31 U.S.C. §5324. Elfgeeh continued to meet with Pugach and Hancock and he later said Pugach did most of the talking. Hancock continued to sign documents and appear in court.  Elfgeeh was convicted on all counts and sentenced to serve 15 years and eight months in prison. He would have gotten roughly 90 months had he stuck by the original plea deal.  The degree to which Pugach continued to practice law was the subject of rumor in the Queens legal community that came to the surface in 2008, when Hancock was disbarred by the Appellate Division, Second Department, for helping Pugach engage in the unauthorized practice of law, including his work on the Elfgeeh case.

The "record reveals" that Hancock "afforded so little regard to his law license as to allow a disbarred felon to use his name freely on court papers to advertise himself as his paralegal," the Second Department said in Matter of Hancock, 06-02769 (NYLJ, Sept. 23, 2008).  Elfgeeh's petition for a writ of habeas corpus was denied by Eastern District Judge Sterling Johnson and he appealed to the Second Circuit, where Judges Ralph Winter, Renna Raggi and Denny Chin heard oral argument on Jan. 31.  In yesterday's opinion, Winter examined the two-pronged rule on ineffective assistance in Strickland v. Washington, 466 U.S. 668 (1984), which requires that counsel's performance first be so deficient that it is not "within the range of competence demanded of attorneys" and second that the attorney's deficiency was prejudicial to the defense.  However, he said, "When a defendant has been represented by someone who has never been licensed to practice law, that representation is per se ineffective and thus not need satisfy Strickland's dual requirements."  The panel concluded that its "rationale for a per se ineffectiveness rule applies to representation by an individual who, before the representation in question, has been disbarred in all jurisdictions where he or she was once admitted," Winter said. "In such circumstances, the defendant lacks licensed representation, and a disbarred attorney has as much, or more, to fear from the court or prosecution discovering counsel's violation of the law against the unauthorized practice of law as one who has never been licensed."  The judge said a per se ineffectiveness rule "also avoids the need to scrutinize every detail of the representative's conduct for the presence of an impermissible motive of preserving the unlicensed representative's secret at the expense of serving the best interests of the defendant."  But these reasons, he said, "offer no basis for applying a per se ineffectiveness rule where, as here, the defendant has a licensed attorney of record who signs all relevant papers and makes all relevant court appearances."  There was another rationale for not combining a per se ineffectiveness rule with a de facto attorney claim, he said, as defendants such as Elfgeeh "would have great incentive to claim reliance on unlicensed sources."  "The extent of such reliance would almost always be indeterminable, and the claimed reliance would, in and of itself, tend to constitute the advisor as a de facto attorney," he said.  James Branden argued for Elfgeeh.  Branden said yesterday he will file a petition for a writ of certiorari.  "Mr. Elfgeeh was really disserved by the legal community and the result is that he's doing approximately double the term of imprisonment he would have otherwise served," Branden said. "Mr. Pugach acted as his lawyer and the only reason Hancock was in the case was because Pugach was paying him, as he had done in other cases. Hancock was acting as a beard for the person who was actually providing the legal advice and apparently there's no remedy for that and I think that's a shame."  Eastern District Assistant U.S. Attorney Pamela Chen argued for the government.  Mark Hamblett can be contacted at mhamblett@alm.com.