Ineffective Counsel: It's All Fun and Games Until Sentencing - U.S. Second Circuit
U.S. Second Circuit - The FindLaw 2nd Circuit Court of Appeals Opinion Summaries Blog

Ineffective Counsel: It's All Fun and Games Until Sentencing

Every spring, hundreds of teenage, aspiring-lawyer types flock to the National High School Mock Trial Competition. Typically coached by a licensed attorney, these kids learn how to apply the Federal Rules of Evidence to a fact pattern, and eventually try a case before panels of judges.

Most of them are pretty good. At the end of each round, the judges exclaim, “Outstanding! You were better than some of the real attorneys who appear in my courtroom! Follow your dream!”

Of course, when the scores are tabbed and the courthouse empties, these pretend-lawyers stop pretending. In contrast, the fake lawyer in today’s Second Circuit Court of Appeals case, on the other hand, didn’t know when to stop. Which brings us to today’s topic: ineffectiveness vs. per se ineffectiveness.

Burton Pugach was disbarred in 1960 after his conviction for criminal possession of a weapon. We're not sure how often Pugach met with clients after that time, but someone recommended Pugach to Appellant Abad Elfgeeh in 2003.

Pugach advised Elfgeeh, who had pleaded guilty to conspiring to operate a money transmitting business without a license, to withdraw his plea. Elfgeeh agreed.

Pugach, however, couldn't file a motion to withdraw the plea on his own since he lacked a license. Instead, he enlisted then-licensed attorney Frank Hancock. Hancock, for what it's worth, advised against withdrawing the plea, but signed the necessary paperwork to effect Pugach's strategy for Elfgeeh throughout the proceeding. (Hancock was disbarred in 2008 for multiple reasons, including aiding Pugach in the unauthorized practice of law by signing Pugach-prepared documents without oversight.)

Elfgeeh was subsequently convicted on all counts, and sentenced to 188 months in prison, 90 months more than his expected sentence under the guilty plea. Elfgeeh, (now represented by James Branden), recently appealed to the Second Circuit Court of Appeals claiming ineffective counsel. The appellate court affirmed his sentence.

Generally, ineffective counsel appeals are analyzed using the Strickland test, (counsel's performance was deficient and deficient performance prejudiced defense). Elfgeeh insisted that the Second Circuit per se ineffectiveness rule, (adopted in Solina v. U.S.), applied in his case because Pugach was his de facto attorney when he withdrew the plea, even though Hancock was the attorney of record.

The Second Circuit held in Bellamy v. Cogdell that the per se ineffectiveness rule applies to a defendant who did not know that his attorney was not authorized to practice law, and the lack of authorization stemmed from a failure to seek it or from its denial for a reason going to legal ability. Here, the court extended the per se ineffectiveness rule to apply to a defendant represented by a disbarred attorney, but Elfgeeh still lost because he was technically represented by Hancock, who was licensed at the time.

In a case pitting de facto faux counsel against licensed counsel of record, the Second Circuit Court of Appeals says skip the per se effectiveness analysis and move straight to the Strickland ineffective counsel test.

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