In a recent opinion and order in Gucci America, Inc., v. Guess?, Inc.,1 Judge Shira A. Scheindlin of the Southern District of New York set aside the order of Magistrate Judge James L. Cott in which Judge Cott had ruled that the attorney-client privilege did not apply to the communications of Gucci’s former general counsel, Jonathan Moss, an inactive member of the California State Bar. Judge Cott had concluded that Gucci did not have a reasonable belief that Mr. Moss was an attorney because Gucci had failed to conduct due diligence to verify Mr. Moss’ ability to practice law. Judge Cott’s prior order was the subject of a previous WSGR Alert, “Protecting the Attorney-Client Privilege: Recent Ruling Underscores Need to Confirm In-House Counsel’s Authorization to Practice Law,” dated July 8, 2010.

In setting aside Judge Cott’s order, Judge Scheindlin rejected the magistrate judge’s two main findings: that Mr. Moss did not qualify as an attorney for the purpose of the attorney-client privilege, and that Gucci’s belief regarding Mr. Moss’ status as an attorney was not reasonable.