Some Erie County attorneys make big money as taxpayer-funded assigned counsel

Grand Island attorney Alexander Martin, a Family Court specialist, could make more than $428,000 from the same program. And if East Aurora defense attorney James Maloney continues his pace from the first six months, he’ll earn more than $404,000.

These attorneys are not partners in high-powered law firms. Their typical clients are not banks, wealthy business executives, millionaire drug dealers or other deep-pocketed people.

Tabashneck, Martin and Maloney are attorneys in private practice who made these fees representing poor people and others who say they cannot afford to pay attorneys.

The three were the highest-paid lawyers in the Erie County Assigned Counsel program in the first six months of this year, according to three sources closely familiar with the program. The program, run by the Erie County Bar Association and funded by state and county taxpayers, provides legal representation for indigent clients in criminal court, parole hearings and Family Court.

In 2022, only five attorneys in the Assigned Counsel program made $100,000 or more for that work. In 2023, that number rose by 800% to 45 attorneys.

In 2023, about 250 local attorneys were paid a total of more than $20 million to handle criminal, parole and Family Court cases in Erie County, according to a tax return filed by the Erie County Assigned Counsel program. That number is expected to increase this year.

That is because assigned counsel attorneys throughout the state received a monster pay raise last year – more than double the hourly rate they made before.

From 2004 through 2022 in New York state, assigned counsel made $60 an hour for handling misdemeanor cases and $75 an hour for felonies, parole hearings and Family Court. Beginning in April 2023, the hourly rate was raised to $158 an hour for all of those cases.

That hike in legal fees caused the expense of representing indigent clients to skyrocket in Erie County and across the state.

From 2022 to 2023, the cost of running the county Assigned Counsel program increased from $14.8 million to $20.3 million. It is anticipated to rise to $24.2 million this year, according to the program’s records.

Those who run the program say they are doing their best to keep costs down while complying with state mandates.

“The county is already providing high quality public defense services in the most cost-effective manner possible,” said Michelle Parker, the Assigned Counsel program’s chief executive officer.

Critics of the program claim it has become a six-figure gravy train for some local lawyers. They also claim that it has become far too easy for defendants in criminal cases to get assigned attorneys at taxpayer expense.

Parker acknowledged that 90% of defendants in Erie County criminal cases are represented by the Assigned Counsel program or the taxpayer-funded Legal Aid Bureau of Buffalo.

The Legal Aid Bureau – whose attorneys are employees, not private contractors – represents indigent defendants in Buffalo City Court, at a budgeted cost of $5.5 million this year, and also represents clients in Family Court cases.

The raise to $158 for Assigned Counsel attorneys was a big one, but it was long overdue, because the previous rates were exceedingly low, said Buffalo lawyer Norman P. Effman, who is a vice president of the state Bar Association.

An attorney for 55 years, Effman said he never imagined he would see the day when someone could make $400,000 to $500,000 in one year doing assigned counsel work.

“Is that typical for assigned counsel? Hell no,” Effman said. “Erie County has a very good assigned counsel program. You want to offer enough money that you’ll attract quality lawyers who fight hard for their clients.

“At the same time, any time you have a program that is publicly funded, with people being paid by the hour, you have to be very careful to monitor it for any kind of abuse.”

Other local lawyers question the expenses of the Assigned Counsel program.

“As a taxpayer and as a lawyer, I find it absolutely outrageous that an assigned counsel can make more than $500,000 in a year,” said Frank LoTempio, who heads a Buffalo law firm with six attorneys. “They do excellent work and they perform an important service, but the program seems to be growing out of control. You have assigned counsel who are now making twice as much money as the district attorney of Erie County and every judge in the state.”

Assigned lawyers in New York now enjoy the second-largest hourly pay rate in the country, according to a nationwide study conducted last year by the Virginia State Defenders office.

The only state that pays more is Maryland, at $164. New York is one of 16 states that pay $100 or more. The state with the lowest hourly pay for assigned lawyers is Illinois, at $40.

County Executive Mark Poloncarz has voiced concerns about the rising cost of assigned counsel. In April, he announced that he is studying possible changes to the program, including the possible establishment of a county public defenders office to handle most assigned counsel cases in the county.

Instead of assigning the cases to hundreds of attorneys acting as private contractors, a public defenders office would have a team of county-employed attorneys handling most of the cases, Poloncarz told The Buffalo News.

Poloncarz noted Monroe County’s public defenders office cost $9 million to operate last year.

“The financial implications of continuing along the current path are too large to ignore,” Poloncarz said.

He told The News on Thursday that he has a committee studying potential changes to the Assigned Counsel program. Led by Erie County Judge Susan Eagan and former District Attorney John J. Flynn, the committee is studying the costs and effectiveness of the current program and is expected to present recommendations within the next few months.

LoTempio and Buffalo attorney Arthur Pressman said it is hard for private practice lawyers to compete for business with a county program that “seems to provide free lawyers to everyone who wants one.”

“As a taxpayer, I would like to know what kind of scrutiny that is given to a person’s financial situation before he or she gets an attorney that taxpayers pay for,” Pressman said.

The Assigned Counsel program handles more than 17,000 criminal and 7,000 Family Court cases a year.

Parker said that the Assigned Counsel program examines all applicant’s finances and ability to pay for a lawyer. Some people are turned down, she said.

About nine out of every 10 defendants in Erie County criminal cases are now represented at public expense, according to estimates made by LoTempio and other attorneys who practice regularly in local courts.

Defending the program

Parker defended the Assigned Counsel program – and its expenses – to The News.

Parker pointed out that a public defenders office – such as the one that operates in Monroe County – would not be able to handle all the cases that her office covers now.

In addition to its Public Defenders Office, budgeted for this year at $10.3 million, Monroe County also has an Assigned Counsel program to handle cases that Public Defenders cannot handle due to legal conflicts. That program will cost Monroe County $10.4 million this year.

Parker also explained that assigned attorneys such as Tabashneck – who confirmed that he earned more than $271,000 in the first six months of this year – receive only a paycheck. They do not receive any other employee benefits that a public defender’s office would have to pay.

Parker said each attorney pays for their own health insurance, office space and equipment, malpractice insurance, computers, retirement savings, professional licensing fees, non-attorney staff and other expenses. She added that assigned counsel do not receive personal leave, sick pay, vacation pay, parental leave pay or other benefits that many employees get.

“It is inaccurate for payment of vouchers to be expressed in a figure such as ‘made $149,000 for 2023,’ as if it were an employee’s salary, when the net amount the attorney made is much lower,” Parker told The News.

Parker said attorneys’ billings are checked closely to make sure they are accurate, and added that the work these attorneys do is reviewed on a regular basis for quality.

Assigned attorneys describe work

Tabashneck, Martin and Maloney, who confirmed they made more than $271,000, $214,000 and $202,000, respectively, in the first six months of this year, were the county’s highest paid assigned counsel during that period.

Each of the attorneys defended his work, saying they work long hours and often handle difficult cases with unpopular clients.

“I make myself available to my clients at all times because I believe every case must be treated with the utmost seriousness ... I take my ethical obligation to fight for that result in every case extremely seriously,” said Tabashneck, 36, who communicated by email with The News, but declined to talk with a reporter.

Parker said she found no problem with the billings or work quality of Tabashneck, Martin and Maloney.

In Tabashneck’s case, the money he received during the first six months of 2024 included pay for cases he handled this year and in part of 2023. Assigned counsel cannot submit a voucher for payment until after a case is finished, Parker said.

Tabashneck was paid an average of $759 for each of 330 cases he billed for during that time, Parker said. She added that he also received extra pay for being “attorney on call,” “attorney of the day” and for work done researching criminal sentences.

Maloney said he works an average of 60 hours a week, usually waking at 4 a.m. to do research in his home office. “I work hard for the Assigned Counsel Program,” Maloney said. “It’s not a gravy train.”

“Between court appearances, research, interviews with clients, meeting with DA’s and other work I do, I usually work on about 15 cases a day,” Maloney said. “I handle murder and other homicide cases. I handle some very difficult vehicular manslaughter, where clients have killed kids with their cars. I’ve had cases where the court security officers had to stand next to me because the families were so angry. Some of these clients are very unpopular.”

Maloney, 58, said he has worked hard over the decades to become an expert on homicide and DWI cases and other specialties.

“I will put the quality of our work up there with any attorney in the county,” he said.

Martin, 39, said he does most of his work representing parents under investigation in child abuse and neglect cases in Family Court.

“These are very challenging cases with a lot of emotion on all sides. It’s not easy work,” Martin said.

“At any given time, I may be working on 70 or 80 Family Court cases,” he said. “Any payroll, Social Security or self-employment taxes, I pay that. I pay for all my own retirement savings, health and malpractice insurance. I get no pension, no sick time or vacation days. I have to save for my own retirement, and many other expenses.”

“Given all that, I do not think that the pay rate we receive is all that high,” Martin said.