Advice from disbarred attorney not per se ineffective under Constitution

See, once you get convicted of some crime, you go to the slammer and start thinking about how to get out of jail. One solution is a habeas corpus petition claiming ineffective assistance of counsel. You know, "my lawyer slept through trial" or "jury selection was unfair." That might work. How about this one: "my lawyer was disbarred when he took on my case."

The case is Elfgeeh v. United States of America, decided on May 23. Elfgeeh plead guilty to operating and conspiring to operate a money transmitting business without a license. Then he fired his lawyer and hired Burton Pugach, who had been disbarred in 1960. That's right, disbarred 43 years earlier! Elfgeeh did not know this, though. Elfgeeh paid Pugach money to vacate the guilty plea. Elfgeeh, meanwhile, used a licensed attorney, Frank Hancock, to actually advise Elfgeeh. Usually, Elfgeeh met with Hancock and Pugach at the same time. As the Second Circuit (Raggi, Winter and Chin) puts it:

Appellant described these meetings as ones in which Hancock spoke very little, often only to express agreement with Pugach, pose a legal question, or advise Pugach to explain a particular point to appellant. Hancock was also aware that Pugach and appellant had discussed matters relating to the case and would often decide the course of action before speaking with Hancock. Nevertheless, Hancock signed all documents filed with the court, and only Hancock appeared on behalf of appellant at court proceedings, other than one instance where Pugach informed the court that Hancock was unavailable.

The trial court denied Elfgeeh's motion to vacate the plea, but it vacated the plea anyway, for other reasons: the magistrate judge did something wrong in handling the guilty plea. It was a big mistake for Elfgeeh to try to re-open the case. The government would not make a new plea offer, and Elfgeeh lost his trial and was given 188 months' incarceration, more than twice as long as the incarceration under the initial guilty plea.

The habeas petition argues that Elfgeeh relied on legal advice from a disbarred attorney. The issue is "whether a per se ineffectiveness rule applies when a defendant, although having a licensed attorney of record, relies on the advice of a disbarred attorney." The answer is no. While Elfgeeh argued that Pugach was his "de facto attorney," at all times, Hancock was legally advising Elfgeeh, signing all papers and appearing for him in court. Had Pugach been the only one advising Elfgeeh, he would win the habeas petition. But he was not. (By the way, Hancock was later disbarred for aiding in the unauthorized practice of law through Pugach). The Second Circuit concludes,

A court cannot -- and, where a decision is one for the client to make, should not -- ensure that a defendant accepts advice only from his attorney of record. Indeed, many defendants may well take advice from friends or family, including persons claiming legal knowledge, when deciding to accept or reject a plea agreement, to testify at trial, etc. These decisions are for the defendant to make, after receiving the informed advice of licensed counsel. That advice may be defective, even non-existent, but the Strickland two-prong test is fully adequate to protect defendants in such cases. ... If a per se ineffectiveness rule joined with a de facto attorney claim were adopted, defendants such as appellant would have great incentive to claim reliance on advice from 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.