Erie County Executive Mark Poloncarz wants to replace or drastically reduce the Assigned Counsel Program with either a government-run public defender’s office or an expansion of the Legal Aid Bureau of Buffalo.

He thinks it will save money. Or if he doesn’t really think it, he says it anyway. Perhaps he really doesn’t know, because after all, he has published no studies.

The comparison he makes – that of the model of nearby Monroe County – he makes without factual accuracy, along the lines of omitting half the truth or comparing the eating apples to onions and imagining no one will notice that what he says stinks.

The county comptroller’s audit identified billing irregularities among a small number of attorneys in the Assigned Counsel Program, an overwhelmingly part-time cadre of 250 attorneys. It focused on about eight, with one in particular who seems to have inflated his billings, and, along with the other seven, worked full-time defending the indigent or those who say they’re indigent.

The investigation remains incomplete.

Based on all eight of the identified attorneys, named and under a cloud, and in fact, at least temporarily suspended, suspected of overcharging, across the ACP, as much as $1 million, over a couple of years.

It is not a shocking number. It is also fixable.

Solution: Blow Up the System

Poloncarz wants to change the system of the last 60 years, which has outsourced independent lawyers who, for the most part, have their own successful practices with paying clients who generally work part-time for the ACP, defending the poor at the state-mandated rate of $158 an hour.

But about eight work full-time at it, and one gentleman seems to work a good deal more than full-time. When you add it all up, it might come to – maybe one tenth of one percent in overbillings.

Poloncarz has seized on this to try to toss out the independent contractor lawyers and create a new unionized bureaucracy of inexperienced lawyers, if he can find and hire them, who will, he says, save Erie County money.

Naturally, he makes this assertion without evidence. To solve what may be a $1 million (fixable) problem, he is proposing a solution costing far more than $1 million per year.

Three Things His Plan Will Actually Do

Poloncarz’s plan to convert the constitutionally-mandated defense of the indigent in Erie County from the Assigned Counsel Program to a new public defenders’s office or an expanded Legal Aid will do three things.

1. It will cost more money.

2. He likely won’t even be able to find lawyers to do it.

3. The quality of representation will take a nosedive, thereby increasing taxpayers’ costs of incarceration.

To show this with evidence is going to take a series of stories that explore the various issues of why this looks like a poor plan.

One disclosure I need to make is that I have a relative on the ACP panel, one of the 242 who accept panel work part-time alongside his decidedly robust private legal practice and who is definitely not one of the eight targeted by Poloncarz by his hasty cloud of suspicion.

My findings are my own. They are subject o analysis and debate and opposing and supporting voices are welcome.

Curiously, Poloncarz’s own task force — in a statement — confirmed that Erie County will always need the ACP, praised its attorneys for exemplary service, and described any expansion of Legal Aid as exploratory and incremental. His own task force does not support the wholesale replacement he has been promising.

But let’s begin with Poloncarz’s argument that a newly created public defender’s office or an expanded Legal Aid will save taxpayers’ money.

The Monroe Comparison: Half the Truth

Erie County’s nearest similarly populated county, where Rochester sits, is Monroe County. There, a public defender’s office has undertaken the majority of indigent criminal defense cases.

At his April 2024 State of the County address, Poloncarz told Erie County residents.

First: Monroe County’s public defender’s office costs $9 million.

Second: Erie County will spend $40 million on the ACP per year.

Both were false.

The $40 million appears recklessly untrue. The actual 2024 cost: $20.3 million. He told the public Erie was spending $40 million. It was spending half that.

The $9 million for Monroe County left out something. Less generous people might call it a lie by omission.

Monroe does not run its entire indigent defense for $9 million. The $9 million is just the cost of its public defender’s office. Monroe also funds a Conflict Defender’s office and its own Assigned Counsel Program.

Total Monroe cost: $20.7 million — for a county 27 percent smaller than Erie.

So the real comparison is:

THe red is what Polancarz said. THe blue is the truth.

Monroe County’s total spending on indigent defense is $20.7 million for 748,000 people ($27.67 per person), while Erie spends $25.8 million (county Legal Aid of Buffalo) for 950,000 people ($27.16 per person).

Poloncarz took a number he inflated and compared it to a number he truncated.

The gap he manufactured — $40 million versus $9 million — does not exist.

When total spending is objectively compared, both counties spend nearly the same per capita. Monroe even pays slightly more.

Coming Soon

In this series, I intend to show why Poloncarz’s plan will cost taxpayers more money in the long run, while likely decreasing the quality of representation of the poor.

I also intend to show that less effective counsel, geared almost exclusively toward the plea bargain and sentencing advocacy rather than adversarial representation, is to no one’s advantage.

Except perhaps the district attorney, who can look forward to uncontested charging decisions without fear of pushback, and a random County Executive who will stick long enough to do some patronage hiring.

He can leave the bill to the future, when the real cost increase gap becomes apparent, after it’s too late to disband the new unionized bureaucracy. And everyone forgot how we got there in the first place.

In Part 2, we will show the numbers Poloncarz has not published.

A legally compliant public defender’s office or expanded Legal Aid — staffed to meet New York State’s mandatory caseload standards, with unionized attorneys, step increases, health insurance, and pension obligations — would cost more than $22 million in year one.

That is over $900 per case versus the ACP’s $847. And unlike the ACP, those costs rise every year regardless of how many cases come through the door.

We will also show that Erie County is currently collecting state reimbursements tied to the assigned counsel model — millions of dollars that shrink the moment cases move away from it.

Poloncarz has published no cost estimate to support his claim of savings. We will provide one.