In many instances, pro bono work begins with a law firm identifying a worthy client—a wrongly convicted death row inmate, say, or an asylum-seeking immigrant fleeing a war-torn nation.
While Gibson, Dunn and Crutcher certainly handles plenty of cases like that, several lawyers based in the firm’s New York office have developed a pro bono practice by focusing instead on what they consider a worthy cause: battling bureaucracies allegedly run amok.
Led by litigation department cochair Randy Mastro and litigation partner James Walden, the firm's "good government" program is devoted to fighting public entities that, in Gibson Dunn's view, have abused their authority or tried to sidestep the democratic process. Over the past decade, the effort has seen Gibson Dunn square off dozens of times against federal, state, and local officials, with agencies overseen by New York Mayor Michael Bloomberg serving as the firm's most frequent adversary.
Most recently, Walden signed on to represent a group led by New York public advocate and Democratic mayoral hopeful Bill de Blasio, who is trying to block the imminent shutdown of a financially troubled Brooklyn hospital. Earlier this summer, the Gibson Dunn lawyer filed suit on behalf of a coalition of Manhattan neighborhood groups incensed that a bike rack connected to the city's new bike share program had been installed in a local park.
Gibson Dunn's other attempts to fight City Hall include successfully suing the city's Human Resources Administration to restore food stamp benefits for recipients cut off from the service; ongoing litigation aimed at removing a controversial Brooklyn bike lane; and challenging a planned New York University expansion. The firm's unsuccessful efforts on this front include trying to prevent Bloomberg from seeking a third term as mayor and moving to knock down a new law expanding taxi service to the city's outer boroughs.
Gibson Dunn has even represented one New York City entity against another, handling a 2008 suit brought by Staten Island city council members intent on ensuring that the Bloomberg administration enforced a homeowner rebate program, and successfully representing City Comptroller John Liu against New York's Department of Homeless Services in a case over the agency's allegedly improper conversion of buildings into homeless shelters using public funds.
Going against the government isn't the usual pro bono fare, nor are the sometimes well-heeled clients the firm represents in such matters the typical pro bono clients.
"A lot of big firms don’t like to take these cases," says Walden, a 47-year-old white-collar litigator who also heads Gibson Dunn's New York pro bono program. "It's not your typical feel-good work that will get you honored at 10 benefits."
Some observers say the firm's work is the product of an anti-Bloomberg political vendetta being waged by Mastro, who rejoined Gibson Dunn in 1998 after serving as deputy mayor under two-term New York Mayor Rudy Giuliani. Mastro insists that isn't true.
"I have great respect for city government generally, and I was honored to serve in it, but sometimes the government screws up and needs to be held accountable," he says. "When I came back to the firm, one of the things I saw was government actions that shocked a lot of New Yorkers and required a remedy. But because of the public nature of the issues, the cases wouldn’t have been litigated unless someone was willing to do it on a pro bono basis." (Esther Lardent, founder of the Pro Bono Institute, says her group defines pro bono as either work for clients unable to access the help financially, or work performed on a larger public issue.)
That's not to say that either Mastro or Walden is totally apolitical. Walden has donated $4,950 to de Blasio's mayoral campaign and $1,000 to Democractic mayoral contender Bill Thompson, campaign finance records show, plus another $4,500 to Daniel Squadron, who is running to replace de Blasio in the public advocate post. Mastro, meanwhile, has given de Blasio $2,000, Thompson $4,950, public advocate candidate Letitia James $1,000, and Republican mayoral candidate Joseph Lhota, who succeeded Mastro as Giuliani's deputy mayor for operations, $4,950.
Mastro took on what he calls his first good government case in the mid-2000s. Another former Giuliani deputy mayor, Rudy Washington, had developed a serious respiratory condition that he believed was related to his work at Ground Zero in the wake of the September 11, 2001, terror attacks. When city lawyers said they planned to appeal an administrative law judge's ruling that Washington was owed health insurance benefits from the city, Mastro stepped in to speak in the press on his behalf. Days after the news broke that the city was fighting to block the benefits, and before Mastro ever went to court, the Bloomberg administration backed down.
In one of the firm's latest so-called good government suits, Walden and two Gibson Dunn associates represent a variety of neighborhood groups fighting the placement of 30 bikes connected to the recently launched Citi Bike program in Petrosino Square, a noisy, 11,500-square foot enclave at the intersection of SoHo, Little Italy, NoHo, and Chinatown in lower Manhattan.
Filed June 19 against New York City and the city's departments of transportation and parks and recreation, the suit claims that local residents repeatedly opposed the suggested placement of the kiosk—which stands on a patch of cement sometimes used to host art installations—and presented several alternative locations that were ignored.
"You cannot take a park and give it over to commuters," says Walden, who argues that because the bike share program is more akin to a public transit system than a recreational enterprise, placing equipment related to it in Petrosino Square is illegal under the public trust doctrine.
Responding to The Am Law Daily's inquiry about the suit, the New York City Law Department issued the following statement: "It is unfortunate that these groups are resorting to litigation, but we are confident this location is completely proper and will withstand a court challenge. DOT has also been working with elected officials on this issue."
As it happens, Walden represents some of the same plaintiffs from the bike rack case—including the SoHo Alliance and Friends of Petrosino Square—in another pro bono matter on his docket. Gibson Dunn's clients in that case are fighting the city's approval of a nearly 2-million-square-foot expansion planned by New York University in Manhattan's Greenwich Village. In their complaint, filed in September 2012 against the city's transportation department, parks department, planning commission, and several other agencies, the plaintiffs argue that the expansion "threatens to overwhelm one of New York City's crown jewels" and illegally eliminates several parks.
In April, a New York state court judge hearing the case ruled against a discovery request sought by Walden, and the case is pending.
Like Mastro, Walden spent time in the public sector. A Pennsylvania native, he moved to New York two decades ago after graduating from Temple University Beasley School of Law to work as an associate at O'Melveny & Myers. A year later, he left for a clerkship on the U.S. Court of Appeals for the Third Circuit, expecting to take a job afterward with the U.S. attorney's office until a hiring freeze sent him back to O'Melveny. He finally landed the prosecutor job at the end of 1993 and spent the next eight-and-a-half years in the U.S. attorney's office in Brooklyn. After returning to O'Melveny and spending several years there as a partner, Walden jumped to Gibson Dunn in 2006.
Walden estimates that he's done 15 "good government" cases since joining the firm. On average, he says, his entire pro bono caseload consumes between 350 hours and 500 hours per year. That number dwarfs the firmwide average of roughly 86 hours per year logged by Gibson attorneys, according to The American Lawyer's most recent Pro Bono Report.
The firm's work has caught the attention of the city government's in-house lawyers. "Everyone has a right to sue the city," says city law department spokeswoman Kate O'Brien Ahlers. "Everyone has a right to want publicity for their cases." In the same breath, Ahlers questions just how successful the program has been, pointing to losses including a unanimous June ruling by New York's highest court in favor of a state law allowing the sale of 2,000 additional medallions for wheelchair-accessible taxis, and the establishment of street hail livery service in outer boroughs (Mastro represented the Taxicab Service Association fighting the changes).
In some instances, both the firm and its foes can claim a case as a win. In 2010 Walden represented the Brooklyn Heights Association when the group decided to fight what it saw as the covert removal by the city of two structures from the Brooklyn Bridge Park boundaries, a move that allowed the spaces, including the roofless remains of a onetime tobacco warehouse, to be turned over to private developers. In July 2011 a federal judge sided with the neighborhood association and ruled the remapping to be illegal. Today, the structures are in the process of being turned over to private owners in a transparent process that the community group considers a victory, even though the public lost the use of the buildings.
Jane McGroarty, an architect who served as president of the Brooklyn Heights Association at the time, estimates that the legal work Gibson Dunn provided would have cost in the millions of dollars and been more than the plaintiffs could afford had they been forced to pay the bill themselves. "He really leads people," McGroarty says of Walden, who lives in Brooklyn Heights and had just started a term on the neighborhood association's board when he decided to step down and take on the lawsuit. "He really gives credence to the feelings that people may have or hesitations. It’s not like, 'I’m smarter than you all, this is what you should do.' "
The Brooklyn bike lane case has made Walden notorious among the city's cycling enthusiasts, who are outraged by the protracted litigation aimed at removing a two-way passage carved out of a busy street that runs alongside the west side of Brooklyn's Prospect Park. Walden's clients argue that the lane endangers pedestrians and inconveniences drivers; that it was disingenuously billed as a pilot program rather than a permanent fixture; and that the city failed to undergo the proper environmental review before putting it in. The suit's backers include Iris Weinshall, a former New York transportation commissioner who worked with Mastro in the Giuliani administration and whose husband is U.S. Senator Charles Schumer, and Brooklyn Borough president Mary Markowitz.
Walden's work on the bike-related cases has spawned a torrent of criticism, much of it online, including a fake Twitter account using the name "TheJimWalden" that regularly tweets dispatches such as 'Whoever invented the bicycle deserves the scorn of humanity."
Walden is well aware of the reputation the cases have bestowed on him (and says he looked at the Twitter account once and "had a good laugh") but refuses to let that steer him and the firm from doing what they think is right: "I love bicycles," he says, noting that, after winning one in a recent charity event, he owns three. "What I hate is terrible government decisions that cut out the community."