In Anti-Bike Lane Case, Gibson Dunn Strays From Pro Bono Standards

In an effort to undo a bike lane reportedly opposed by Senator Chuck Schumer, Jim Walden, a partner at Gibson, Dunn, and Crutcher, is providing free legal services to wealthy Prospect Park West residents who live in some of the most exclusive real estate in Brooklyn. Photo: ##http://www.gibsondunn.com/Lawyers/jwalden##Gibson Dunn.##

Jim Walden is a partner at Gibson, Dunn & Crutcher, the kind of white shoe firm where lawyers represent major corporations at rates of nearly a thousand dollars per hour. His name has been popping up on Streetsblog recently because he represents a politically-connected group attempting to undo the redesign of Prospect Park West. According to press accounts, Walden is doing this work at no charge to the client. Walden would not comment to Streetsblog for this story.

Under the ethical standards of the legal profession, lawyers are expected to donate a certain amount of their time pro bono publico, for the good of the public, and some of Walden’s pro bono representations are quite impressive. In 2007, he received Gibson Dunn’s top award for exemplary pro bono work for representing 11,000 New Yorkers whose food stamps had been wrongfully terminated. Last June, Walden won a pro bono case in front of the United States Supreme Court preventing a legal resident from being deported for a minor drug offense.

Walden’s newest pro bono case, however, doesn’t rise to the standard he’s set in the past. In representing a group of Brooklyn residents fighting against the traffic-calming Prospect Park West street redesign, Walden is devoting his pro bono time to the affluent and politically connected, not those in need.

The New York City Bar Association’s statement of pro bono principles, which Gibson Dunn has signed on to, defines pro bono work as legal services provided without fee to:

  • “persons of limited means,
  • charitable, religious, civic, cultural, community, governmental and educational organizations committed to serving the needs of persons of limited means and/or in matters which are designed primarily to address the needs of persons of limited means,
  • individuals, groups or organizations seeking to secure or protect civil rights, civil liberties or public rights,
  • individuals, groups or organizations who have been harmed by a natural disaster or public emergency or who are providing assistance to persons harmed by a natural disaster or public emergency, and
  • charitable, religious, civic, cultural, community, governmental and educational organizations in matters in furtherance of their organizational purposes, where the payment of legal fees would significantly deplete the organization’s economic resources.”

Esther Lardent, the president of the Pro Bono Institute, wouldn’t comment on the particulars of a specific case, but did share some general principles about pro bono work. “If this is something that could be handled on a contingency basis in the marketplace,” explained Lardent, “that would be unlikely to be something that could happen on a pro bono basis.” If the clients can afford to pay, in other words, it’s not likely to merit pro bono services.

The Pro Bono Institute is a non-profit organization that helps support pro bono work; Gibson Dunn has signed on to the institute’s Law Firm Pro Bono Challenge. “In recognition of the special needs of the poor for legal services, we believe that our firm’s pro bono activities should be particularly focused on providing access to the justice system for persons otherwise unable to afford it,” reads one section of that challenge.

The pro bono coordinator of another major law firm, who asked to remain anonymous in order to protect the firm, told Streetsblog that while different firms have different approaches to pro bono work, “We try to focus all of our pro bono on helping the poor, or helping institutions that help the poor, or advancing rights.”

It’s hard to call the leaders of the anti-bike lane group either poor or powerless. The group’s leading spokespeople are Norman Steisel, a former deputy mayor, and Louise Hainline, a dean at Brooklyn College. They have published letters in print and online media alongside Iris Weinshall, a former DOT commissioner and the wife of Senator Chuck Schumer.

The group’s membership form [PDF], which solicits donations to help pay for “incidental costs of our litigation expenses,” instructs donors to send their non-tax deductible contributions to 9 Prospect Park West, PHA — the penthouse apartment in one of the most exclusive addresses in Brooklyn.

A co-op apartment in 9 Prospect Park West recently sold for $3.2 million dollars, with $3600 per month in maintenance fees. The penthouse apartment, one can safely assume, must command a higher price than that. To repeat: According to its membership form, the group receiving free legal services from Jim Walden and Gibson, Dunn, and Crutcher is headquartered in an apartment likely worth several million dollars.

While the ability of the client to get legal help on their own is an important consideration in pro bono work, it isn’t the only one. Lardent gave the example of the pro bono work many law firms provided to members of Congress in the Citizens United campaign finance case. While those clients weren’t low-income or without power, explained Lardent, the case wasn’t really about the particular client. If a case “would benefit the legal system as a whole, benefit access to justice,” said Lardent, “we’re very likely to say that’s an appropriate pro bono representation.”

Even if you believed that helping politically-connected insiders overturn a multi-year public process was an issue of access to justice, in such cases you also have to apply a higher level of scrutiny. “Is this a loss leader or a business development strategy?” asked Lardent. “How did the firm take this case on? What was its motivation?” If a case came in through an established pro bono committee and received a vote of support from that committee, she said, that’s very different than if a case reached the firm through its commercial work. “You want to make sure this wasn’t in some way a client accommodation.” You also need to be sure it isn’t a personal favor for either clients or the firm’s attorneys, she explained.

One inappropriate use of pro bono that firms are presented with all the time, explained the coordinator at the other law firm, would be supporting an elite private school that a lawyer’s child attends. Although such a school could qualify under a loose reading of the pro bono guidelines, “it doesn’t really fit into our reading of the Pro Bono Institute definition.” Those cases don’t make it through the firm’s pro bono committee.

While it isn’t clear what process Gibson Dunn went through in taking on this case pro bono (we have tried to contact their New York office, their pro bono coordinator, their press office, and Jim Walden), the details that have emerged suggest that it may not meet the standards that Lardent set out.

It has been reported, for example, that the bike lane opponents were put in touch with Walden by Randy Mastro, a deputy mayor under Rudy Giuliani and a current partner at Gibson Dunn. Walden’s connections to Senator Chuck Schumer raise additional ethical questions for the case. Walden made the maximum contribution to Schumer’s 2010 re-election campaign and was almost Schumer’s pick to be U.S. attorney in 2009. Schumer has reportedly lobbied City Council members against the bike lane and is married to Weinshall.

William Simon, the Everett B. Birch Professor in Professional Responsibility at Columbia Law School, explained that most pro bono guidelines include an escape clause broad enough to cover Gibson Dunn’s decision to take this case on a pro bono basis. “You’re going to find a catch-all in most of the promulgated definitions” of pro bono, he said. But, he noted, “If I were in a firm, I’d certainly push for a definition of pro bono that focused on relatively disadvantaged people who really need the assistance.” If the point of pro bono work for most law firms is primarily to boost their reputations, he said, taking on this particular case “may undermine some of the reputational advantages they’re going to get.”

To Simon’s point, Gibson Dunn’s own pro bono page states proudly, “Whether protecting constitutional rights, working to preserve historic buildings, battling slumlords, protecting the environment, or facilitating adoptions and guardianships, our attorneys have provided access to justice for those who could not otherwise afford it.”

Fighting a bike lane that is making the street safer and preventing injuries probably won’t be one of Gibson Dunn’s featured pro bono suits any time soon.

Ben Fried contributed reporting to this post.

Clarification: The post has been updated to clarify that Esther Lardent of the Pro Bono Institute was not commenting or rendering judgment about this specific case. After publishing, we received an email from the Pro Bono Institute stating that “the article leaves the inaccurate impression that Lardent’s words apply specifically to the case that is the focus of the story, when in fact her explanation of pro bono was a general one and wholly divorced from the case in question.” This was not Streetsblog’s intent, and we have amended the post to explicitly reflect that Lardent was referring to “general principles about pro bono work.”

  • Larry Littlefield

    How about this for a justification.

    “Individuals, groups or organizations seeking to secure or protect civil rights, civil liberties or public rights” such as the right to double park, unhindered by the concerns of “persons of limited means” trying to travel on foot or by bicycle without getting injured or killed.

  • ParkSlopePed

    More like pro bozo.

  • Christopher Stephens

    Lawyers acting un-ethically? Stop the presses!

  • fdr

    Don’t forget the right to not have to look both ways.

  • Glenn

    Shameless!

  • Aaron Naparstek

    I believe the correct term for the kind of legal service Jim Walden is offering in this case is “Pro Chucko.”

  • mike

    Great research Noah. This the kind of reporting I read Streetsblog for.

  • Louise

    How dumb is Louise Hainline? She is having cash sent to her luxury penthouse? Could she not afford a PO box? Or did she not want to rub elbows with commoners at a UPS Store?

  • Eric

    Technically the law firm is working within the confines of a pro bono cased involving limited means. NBBL wants to limit the needs of the rest of the community.

  • tom

    These personal attacks are not scaring anyone away. Use your heads; let DOT defend it.

  • Larry Littlefield

    In the case of the law firm, I think they should pay a reputational price for this. And I don’t think it’s personal.

    If they do sue, they’ve asked for a national political issue. Who knows, it could swing mindlessly anti-Democrat media/groups into the pro- personal freedom bicycle camp.

    By the way, as I was riding by today I noticed that around the corner from 9 PPW is a hydrant, a few steps from the door. And halfway up its block is another hydrant. It might be 15 steps from each to the door. Just how much double parking goes on there, and for how long at a time?

  • JK

    The people who use the Prospect Park bike lane and benefit from its traffic calming effect must be the advocates for the lane. It is their neighborhood and their lane. Foes of the lane would be happy to fight against a giant government agency instead of having to look their more numerous neighbors in the face.

    Whatever happens, one thing is clear. The opponents of the lane cannot win here. If they somehow get the lane removed through dint of Chuck Schumer’s political muscle, they will pay a huge price for having utterly alienated their neighbors, and for totally devaluing a transparent and lengthy community approval process. It is remarkable that a politician whose career is based on appealing to the broadest swaths of the public is taking a stand with a handful of very privileged people against a bike lane which has broad and deep community support.

  • @Tom,

    I don’t think this is in any way a personal attack; I think this is a real issue, as is Chuck Schumer’s hypocritical behind-closed-doors campaign to get rid of a bike path from outside his front door.

    But I also agree that their suit has no chance of success, and I would be happy to see them file and get crushed in court.

  • krstrois

    It’s definitely hard to understand how this group of wealthy, politically connected people needs pro bono representation.

  • NattyB
  • BicyclesOnly

    PI agree that means should not be the litmus test for pro bono representation. Pro bono representation should be reserved for cases that would not otherwise be pursued on a contingency or hourly fee basis. That’s the whole point.

    There could well be a case in which a harm is widely and thinly dispersed across a large segment of the public, wealthy and poor alike, with no one individual or discrete group suffering enough harm to fund a lawsuit to seek a general remedy. This isn’t that case. Any purported “harm” from the PPW bike path is experienced acutely by a readily identifiable and well-organized group of people who almost to a one live on PPW. Gibson Dunn should not go unchallenged in burnishing its image with a supposed pro bono representation that is for the private benefit of those individuals, who would likely pursue litigation with or without pro bono representation, rather than for the benefit of the public.

  • Larry Littlefield

    “But I also agree that their suit has no chance of success, and I would be happy to see them file and get crushed in court.”

    As a resident of Brooklyn, I hope to never end up in court regardless of the rightness of my case. Expect the unexpected, and remember who put the judges there.

    http://www.cbsnews.com/stories/2003/08/04/national/main566433.shtml

  • Marty Barfowitz

    The most interesting tidbit in that Above the Law article is this…

    In the space of 12 months, the town has paid New York transportation consultant Sam Schwartz PLLC $374,000 to promote its anti-light rail efforts. This comes to more than $300 for each household residing in the town.

    Say it ain’t so, Gridlock!

  • Gibson Dunn’s professional conduct is central to the storyline about the Prospect Park West redesign, which is central to the larger story about the growth of better infrastructure for walking and biking in NYC. One of NBBL and Iris Weinshall’s core claims is that the PPW process to date — the community-based planning, the public meetings and community board votes, the project evaluation and availability of data — is somehow deficient.

    This post is about the process that NBBL and Iris Weinshall prefer to employ instead.

  • As much as I’d be happy to see them get crushed, too, I don’t want a group of millionaires filing a lawsuit and forcing the DOT to use taxpayer money to mount a legal defense.

    At the two last CB6 meetings on the subject, some NBBLers accused the DOT of being cavalier with city funds at a time of budget crisis. But they have no problem forcing them to spend our money to defend a project that’s wildly popular and a proven success.

    NBBL is trying to make the cost of installing a bike lane so prohibitively high that even if you live outside of Brooklyn you can thank Iris Weinshall & co. for slowing down safety improvements to your street. An amazing accomplishment from someone whose reign at the DOT ended years ago.

  • Marco

    Any chance of any Streetsblog coverage about the individual Debevoise & Plimpton lawyers that unsucessfully sued the City on behalf of the dangerous Critical Mass riders pro bono? Or are *pedestrian* safety issues not important?

    http://www.law.com/jsp/article.jsp?id=1202463599338&slreturn=1&hbxlogin=1

    Seriously? If you’re in the business of attacking individual lawyers for pro bono work that negatively impacts safe streets (which I think is bad business, FWIW) how can you ignore those who sue the City in the name of Critical Mass?

    Strange days for the safe streets movement.

  • Clearly PPW falls under the category of “working to preserve historic buildings” and the residents of 9PPW “could not otherwise afford it,” cause it is a whole street, with a park and some plazas at each end. That has got to be pretty expensive to preserve, even for elite, politically-connected millionaires. Duh.

    But if that excuse doesn’t get traction then I do predict that Walden will drop this stinking pile soon, and one by one the opponents of the PPW Bike Lane will back down from this political poison. Walden, Schumer, Marty, and the rest. Except for those die hards with no future or credibility to start with.

    And Marco, while your point is taken, I doubt we will see Streetblog cover that old “news” anytime soon. Nor do I think it is a similar abuse of pro-bono work. Regardless of how you feel about Critical Mass (This Friday 7pm Union Sq N! Join the other penniless, jobless, anarchists and the professional agitators!), that lawsuit was primarily to address the constitutionality of the NYPD regulation requiring permits for gatherings of 50 or more persons in public space. I liked my First Amendment. Or at least I remember liking it…

  • Funny thing is, implementing bicycle infrastructure increases property values along the stretches that have it. Most residents should be interested in that…

  • Joe R.

    This is all about the “right” to double park, nothing more. It’s even on record that they had a “special arrangement” with the previous precinct commander to not ticket double-parked cars. If you need to constantly double-park to go about your business, then perhaps you need to find a different mode of transportation. As for the so-called lack of public transit there used to justify heavy auto use by some residents, I just checked a subway map. No fewer than 10 subway stations within walking distance of Prospect Park. In short, NBBL is full of it.

  • BicyclesOnly

    Marco,

    When you first started commenting here, about the cyclist dismount policy on the Riverside Park pathways, you seemed like you were reasonably open-minded about urban policy and planning issues, and genuinely concerned about pedestrian safety.

    Now you’re defending the lawyers for the Prospect Park West bike path opponents in the name of safe streets?

    I have heard Steisel, Carswell, Hainline and others speak, in the media as well as in person at the City Council hearing. I have read their lawyer’s letter to the DoT. While each of them assert strenuously that the PPW bike lane has made pedestrians less safe, and there are many claims of “eyewitness accounts” of traffic crashes caused by the redesign, not a single shred of evidence has been put forward to verify these claims. Where are the bodies?

    DoT has put out comprehensive, convincing evidence that safety has increased while travel times have remained virtually unaffected, and confirmed that there is not a single reported crash that can be attributed to the redesign. That happened almost a month ago, and all we’ve heard from NBBL and their lawyers since then are more vague threats about lawsuits to come, and now a backpedalling from the lawsuot talk coupled with compromise proposals for reducing the bi-directional path to a one-way path.

    Anyone who at this point would claim that NBBL has a genuine issue of street safety to present, in a lawsuit or otherwise, has got to be either naïve, or disingenuous themselves.

    And yes, I blame NBBL’s lawyers in part for lending legitimacy to the groups’ specious claims. In a recent article, a Gibson Dunn lawyer states, “we’ve heard enough talk about lawsuits,” as a way to position himself as a reasonable person while urging this his clients’ new compromise proposal receive consideration. But his clients are the only ones who have been talking about lawsuits, and they’ve been doing so compulsively to every reporter or blogger who will listen, ever since they found themselves pro bono representation. I find it incomprehensible that a top-notch firm like Gibson Dunn would allow its client (pro bono or not) to rattle sabers so blatantly and repeatedly in the press as a litigation tactic, when (it so far appears) there is no intention or present ability to actually file suit.

    Under Gibson Dunn’s tutelage, and leveraging Gibson Dunn’s credibility to shore up their own, NBBL churns out baseless litigation threats and unsupported safety claims, in an attempt to try in the press a case its own lawyers are reluctant to file in court, and from which Gibson Dunn is now distancing itself. This is not the kind of representation lawyers should be giving their clients–whether fee-paying or not–and certainly not the kind of representation that a firm like Gibson Dunn should be giving to “pro bono clients” of this ilk.

  • Glenn

    NBBL, Weinshall and GIbson Dunn et al are exactly what’s wrong with America right now.

    All this effort for what? Bruised egos that they are not lord of their domain? That the overwhelming sense of the community is against them? That the public actually got what they wanted through a public process instead of being over ruled by the elites who didn’t bother to show up at said community board meetings?

    I wonder if they are worried about oil prices increasing more than the tens of millions of people live in oppression in order to keep those prices low.

  • Glenn, while I think bruised egos may play a part, Joe has it right that it’s about double parking. These people need to feel like they’ve “made it” and that they’re in a better position than their neighbors. The convenience of their cars helps them to feel superior to transit riders. Double-parking is essential to this, because all of the curb space is taken up by personal vehicles.

    I’ve argued that there should be dedicated loading zones on every block, including residential blocks, but that would mean that Hainline and friends would have to spend more time searching for free spaces, and some might wind up paying for garage space or giving up their cars. That would be such an outrage that it’s not even mentioned as a possibility.

    I believe the NBBLers when they say that double-parking feels less safe with the narrower lanes and denser traffic patterns. Maybe it is actually less safe, maybe it isn’t. What they’re arguing is that the perceived safety of double-parkers (a small minority of PPW users) is more important than the documented safety of all other road users.

  • Cap’n Transit, I agree with you about people needing to feel like they’ve made it and have felt for a long time that social class has been a big part of this fight in some pretty complicated ways.

    I would add only that I think there is an element of what I would call survivor entitlement that informs NBBL/Seniors for Safety, too. These people feel they “took care of” Park Slope back during the tough years of 60s-80s and I bet they did a lot of things I would want to thank them for were I resident of Park Slope.

    I think they feel like they stuck it out during white flight to the suburbs when people with their shared values were leaving the city and now they feel they should be congratulated and celebrated for their decision to remain in the neighborhood. They feel entitled to double park run “their” neighborhood despite the fact that the neighborhood (and city) has totally changed. Their driving behaviors were born at a time when it was scary for a lot of people to walk around in Brooklyn. Of course, none of this is rational or justified and that part is important, but I think this is part of the psychology behind it. I also think this was humiliating for Steisel, Weinshall et al., that this happened without them knowing. Well, pay attention. This is not your fiefdom. I really believe that they didn’t really notice how much the neighborhood changed until the bike lane was installed. Quel lightning rod!

    Anyway, don’t want to go on forever, but I think it’s a big mistake to forget that at least some of these people are genuinely frightened of the new street plan and of change, however Grandpa Simpson that might seem to those of us who don’t feel this way. I think this is part of why there is no rational argument that one can make to them, and it’s why they believe the DOT stats have to be wrong. They *feel* the streets are less safe so the DOT must be lying. Wish it were easier to argue with someone’s emotions!

  • Delaney

    To me this is a non-story. A fancy-pants lawyer wants to do work for his senator friend. There’s nothing illegal going on. I’m sure it happens ALL the time. It’s not like biking is any more of a civil right than driving is.

  • FWIW, in the same situation I would probably write a similar story for L.A. Streetsblog. However, our rich NIMBY’s (Neighbors for Smart Rail, the Beverly Hills School Board/City council) have had to pay for their own attacks on sustainable transportation.

  • mattheww

    Some of these comments are rediculous. Lawyers can provide free services to whoever they want to and there is nothing “unethical” about that. At least he isn’t making money fighting bike lanes.

  • matt bikes

    Good of you to call out Gibson Dunn. I certainly won’t be giving them any business anytime soon. While it’s not surprising that they would take on the case free of charge for a politically connected group like NBBL, it seems that this is not what most people think of when they think “pro bono.”

  • Rich

    When compared to Jim Walden’s day job of defending chemical companies and getting them $70M discounts from DOJ fines, defending energy companies from insider trading prosecution, and defending financial services executives, fighting bike lanes does seem comparatively pro bono!!

    http://www.martindale.com/Jim-Walden/1844638-lawyer.htm

    There must be plenty of members of the NY biking community who are clients of Gibson Dunn. It would be great for them to express their displeasure with Gibson Dunn taking on this case.

  • Rick
  • Yeah, you hear a lot about them lately.

  • There must be plenty of people using their services.

    http;//www.elawsuit.com

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