A recent court order addressing a challenge to the assertion of the attorney-client privilege illustrates the need for employers to verify that attorneys employed to act in a legal capacity are authorized to practice law and in good standing. In Gucci America, Inc., v. Guess?, Inc.,1 Magistrate Judge James L. Cott of the Southern District of New York held that the communications of Gucci’s former general counsel, Jonathan Moss, were not protected by the attorney-client privilege.2

In 1993, upon his graduation from law school, Mr. Moss gained admission to the California State Bar. Gucci hired Mr. Moss in 2002 based on an introduction from its outside counsel, and Mr. Moss earned several promotions, eventually becoming general counsel. As part of his job responsibilities, Mr. Moss provided Gucci with legal advice, appeared before courts and administrative agencies on Gucci’s behalf, filed trademark applications, drafted agreements, and conducted legal research.

Six current and former executives of Gucci and Gucci’s outside counsel collectively testified that they perceived Mr. Moss to be an attorney authorized to practice law based on his position and the preceding job responsibilities. No one, however, ever confirmed Mr. Moss’s background as an attorney or his bar status. At Mr. Moss’s deposition, Gucci learned for the first time that he was an “inactive” member of the California State Bar. A subsequent investigation by Gucci revealed that Mr. Moss had not been an active member of the California State Bar—or any state bar—for more than 13 years.