Gucci Communications with Unlicensed Attorney Are Discoverable, Not Privileged

Attorney Jonathan Moss worked for Gucci America, Inc. from 2002 to 2010, receiving three promotions within the company’s legal department, ultimately landing the title of vice president and director of legal and real estate. While working for Gucci, Moss filed trademark applications for the company in which he was identified as “attorney-at-law and member of the Bar of California.” Moss represented the company in various other matters too, including appearing before courts and administrative agencies on the company’s behalf.

When Guess?, Inc. sought discovery of the communications between Moss and Gucci during the course of a trademark infringement suit, Gucci claimed the documents were protected by the attorney-client privilege. Moss had passed the California bar exam in 1993. However, Moss had gone on inactive status in 1996, and was an inactive member of the bar throughout his employment with Gucci. The result: the attorney-client privilege does not apply and the documents are discoverable.

Gucci tried to protect the documents by claiming that it considered Moss its attorney and perceived him as such, even though it never actually confirmed his bar status. But early this week, a New York City magistrate judge denied Gucci’s motion for protective order, holding that Gucci could not “cloak itself under a veil of ignorance to avoid its discovery obligations.” The magistrate judge stated that Gucci could not justify its “mistaken belief” that Moss was a licensed attorney since it “was plainly in a position to confirm the extent of [Moss’] qualifications as a legal professional and failed to do so.”

Moss claims that he did not think his inactive status limited his ability to practice law in jurisdictions outside of California, and testified that no one at Gucci ever raised the issue of his inactive status. Gucci could have confirmed Moss’ status by simply checking the California bar website, but it never did, instead assuming that he was actively licensed. Gucci terminated Moss on March 1 of this year – one month after he reactivated his California bar status – after investigating his status.

Gucci also claimed the documents were protected by the work product privilege, which the magistrate judge said he lacked sufficient information to determine.

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