U.S. District Judge Shira Scheindlin of Manhattan (no relation to reality television star Judge Judy Sheindlin) has ruled that there is still an attorney-client privilege even if an attorney has an inactive status in the Gucci case, the ABA Journal reports. The Gucci case involved a Guess trademark lawsuit about fake handbags, but ultimately revealed a "fake" lawyer in the process.
During the discovery process of the litigation, Guess challenged Gucci's claims that there was an attorney-client privilege between Gucci's in house counsel Jonathan Moss. Guess claimed that since Moss was not an active member of the California bar, attorney-client privilege did not extend to communications with him, according to Above the Law.
Initially, a federal magistrate judge ruled that Gucci's communications with Jonathan Moss were not privileged because of his inactive status and that the communications would be subject to disclosure. Gucci fired Moss in March 2010 after an internal investigation revealed that he did indeed have an inactive bar status in California.
Judge Shira Scheindlin set aside that order by the judge and granted Gucci's motion for a protective order. She reasoned that one element for the test to invoke attorney-client privilege is if the person being communicated to is made to be "a member of the bar of a court." She wrote that Jonathan Moss "clearly held that status." She also noted that the attorney-client privilege may be invoked even if the person in question is not an attorney. That can happen if the client reasonably believed that he/she was communicating with an attorney.
While Judge Shira Scheindlin did help to illuminate the details about attorney-client privilege with an inactive member of the bar, it is safe to say that most companies will expect their in house counsel to maintain an active law license. Consider this decision before going to inactive status and make sure you pay your dues and are up to speed on those CLE requirements.