• Attorney-Client Privilege - Make Sure Your Lawyer Is A Lawyer
  • July 28, 2010 | Author: Kevin P. Allen
  • Law Firm: Thorp Reed & Armstrong, LLP - Pittsburgh Office
  • A federal court recently stripped a company of the protection of the attorney-client privilege because the company failed to take affirmative steps to confirm that its in-house counsel was an active member of the bar. See Gucci America, Inc. v. Guess?, Inc., 09 Civ. 4373 (S.D.N.Y. June 29, 2010).

    Moss was for years a member of Gucci’s legal department. Unbeknownst to Gucci, Moss, throughout his tenure, was not an active member of any state bar. Moss was an inactive member of the California bar. When it hired Moss, and through his time with the company, Gucci took no affirmative steps to confirm Moss’s active bar membership. Gucci appears to have assumed that Moss, recommended for employment by Gucci’s outside counsel, was an active bar member.

    During its litigation with Guess, Gucci claimed the protection of the attorney-client privilege for certain of its communications with Moss. Guess challenged the availability of the privilege when Guess discovered Moss’s inactive status. Gucci argued that the privilege still applied because (a) Moss’s inactive bar status was an adequate trigger for the privilege, or, alternatively, (b) Gucci’s belief that Moss was an active lawyer was reasonable.

    The Court rejected both arguments. The Court held that the privilege applies to communications with a lawyer who is a member of the bar. An “inactive” bar member is not sufficient, according to the Court, to trigger the privilege.

    Nevertheless, the Court held that a client still can receive the protection of the privilege if the client’s belief that its confidential communications were with an active member of the bar was reasonable, even if that belief was mistaken.

    Surprisingly, though, the Court held that Gucci’s belief that Moss was an active bar member was not reasonable, even though Gucci had no reason to doubt Moss’s veracity or credentials. The Court faulted Gucci for not making “any effort to ascertain [Moss’s] qualifications as an attorney.” Reliance on Moss’s representations or on the fact that he “held himself out” as an attorney was inadequate to make Gucci’s belief sufficiently reasonable to activate the privilege. According to the Court, “Gucci cannot now cloak itself under a veil of ignorance to avoid its discovery obligations.”

    The lessons from Gucci are:

    • Every corporate legal department (and law firm) should confirm and document the active bar status of each new attorney hired, and should also monitor and document on an annual basis its attorneys’ continued good standing and active status; and

    • In litigation, if challenging the validity of an opponent’s invocation of the privilege, investigate and test the status of the opponent’s attorney’s bar membership.