This fashionable story of legal misbehavior has more layers than an Ashley Olsen outfit. The first begins with a lawyer not being a real lawyer, or so opposing counsel would like to claim. Jonathan Moss was employed by the fashion house Gucci as an attorney. Somehow, during a trademark infringement dispute with the company Guess it came to light that Moss, hired and promoted as such by Gucci, was not actually an active member of the California Bar. Another layer; Guess is now trying to exempt all of Moss's communications about the case from attorney-client privilege protections on the grounds he wasn't actually an attorney.
According to the ABA Law Journal, Gucci has tried to clarify its part in the fussy fashion law mess by explaining when Moss was hired back in 2002, it was for a non-legal position, so no one in HR ever bothered to check his bar status. In 2003, Moss was promoted to legal counsel, again with no check on his bar status. From then on, he was widely regarded as "the company's lawyer." No doubt, Moss was behaving badly when he allowed his employer to think he was eligible to practice law. But, note to Gucci HR: in a time when employers commonly check even an applicant's credit report, how did such a large and successful company fail to do its due diligence? It takes a less than 30 seconds to log onto the California Bar website and review the name, status, date of admission and disciplinary actions of any attorney admitted in California.
The final layer reveals the hand to hand combat that is trademark litigation between fashion concerns. The Journal reports in the midst of Gucci's suit against Guess over their alleged infringement on the widely known Gucci logo of interlocking "G's," Guess tossed in a motion to strip attorney-client privilege from Moss's communications regarding the case. As Gucci's April 2 motion notes, Guess's argument here is gossamer thin. Moss was clearly an attorney (graduated from an accredited law school, passed the bar), just not an active one. To remove the privilege on such a technicality would defeat the purpose of that privilege and give Guess a truly unfair advantage in combat. The one issue Gucci does struggle with is their claim that the company's belief that Moss was an attorney was "reasonable." The fact that they never bothered to check undermines this claim ever so slightly.
Once the layers are removed from this tale, it appears that there is more than enough blame to go around. A final coda, during a brief (30 second) review of Moss's status on the Ca. Bar site, it was discovered that he is now listed as an active member of the Bar. A good thing, since he is probably looking for work.
- Gucci Discovers In-House Lawyer Held Inactive Status, Says Privilege Still Applies (ABA Law Journal)
- Gucci Motion For Protective Order Against Disclosure of Privileged Communications (pdf, ABA Law Journal)
- Attorney-Client Privilege (FindLaw's LawBrain)
- Attorney-Client Privilege: 3 Questions for In-House Counsel to Ask (FindLaw's In House Blog)