Legal Ethics

Gucci Discovers In-House Lawyer Held Inactive Status, Says Privilege Still Applies

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Gucci’s discovery that one of its in-house lawyers was on inactive status has complicated its trademark infringement suit filed against Guess.

Gucci fired Jonathan Moss in March after learning that he had been on inactive status since beginning work in the company’s legal department in 2003, according to a memorandum (PDF) filed in the case and a story in Women’s Wear Daily.

Guess claims that it should be able to access Moss’ communications because he wasn’t a lawyer and the attorney-client privilege doesn’t apply.

Gucci, however, says Moss was still a member of the California bar, albeit an inactive one, and an active member of federal courts in the Central and Southern District of California. In any event, Gucci argues in the motion, it should be able to invoke the privilege because it had a “more than reasonable belief” that Moss was a lawyer.

According to the motion filed by Arnold & Porter, Moss had voluntarily changed his license to the less expensive inactive status in 1996, three years after he passed the California bar examination. He is a graduate of Fordham University School of Law.

Gucci hired Moss for a nonlegal job in 2002 after he was referred to the company by its outside counsel, Patton Boggs, which indicated that Moss was a lawyer who had practiced law in California, the motion says. The company didn’t check Moss’ bar status because he wasn’t hired to do legal work.

Moss was a trusted employee, according to the motion, leading to a promotion to the company’s legal department that once again didn’t include a check for bar status, the motion says. “Following his promotion to legal counsel in 2003, Moss continued to hold himself out to Gucci personnel and senior management as a lawyer authorized to practice law, and, as a result, became widely thought of as ‘the company’s lawyer,’ ” the motion says.

Above the Law noted the story. “Guess may be the company making knockoffs, but Gucci’s the company with fake lawyers,” the blog says.

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