Always Make Sure Your Lawyer Is, In Fact, A Lawyer.

Gucci, in its suit in the Southern District of New York, Gucci America Inc. v. Guess? Inc., 09 cv. 4373, accused Guess of “replicating entire Gucci product designs” in an apparent attempt to “Gucci-ize” its product line.
Gucci’s outside counsel filed a motion for protective order after Guess raised the issue of Gucci’s general counsel’s Jonathan Moss’ status as an attorney, and said it would seek discovery of Moss’ communications.
Gucci, which fired Moss on March 1, claims that Moss was a member of the California bar, albeit an inactive one, and a member of the U.S. district courts for the central and southern districts of California. Gucci argued that even if Moss was not authorized to practice, it was entitled to invoke the attorney-client privilege because its executives had every reason to believe Moss was authorized.

Guess, however, disagreed and argued that Gucci presented “a vivid picture of inattention and indifference” to Moss’ qualifications.. Gucci claimed that “even a few minutes of legal research would have revealed that the local rules for the Central District and Southern District Courts require that an attorney maintain continuing and active membership in the State Bar of California to remain a member of both federal bars.” Since Gucci did not make even the most elementary investigation of Moss’ status, Guess argued that it could not show it had a “reasonable belief” Moss was a bona fide attorney, a prerequisite for claiming privilege under federal law.
In an Affidavit, Moss claimed that he “believed it was permissible to work as an in-house counsel for a company in another state” even though he was not admitted to practice in that state.

Guess has now requested permission from Magistrate Judge James Cott, who is handling discovery issues in the case assigned to Judge Shira Scheindlin, to file a “brief submission” addressing Moss’ affidavit by April 20, 2010. We shall have to stay tuned to see how it all shakes out in federal court.

http://www.law.com/jsp/article.jsp?id=1202448268686&src=EMC-Email&et=editorial&bu=Law.com&pt=Law.com%20Newswire%20Update&cn=LAWCOM_NewswireUpdate_20100419&kw=Guess%20Questions%20Gucci’s%20Diligence%20in%20Checking%20Counsel’s%20Qualifications

Special thanks to Sheila Osei for her contributions to this post.

Please contact Bob Cosgrove at rcosgrove@wcmlaw.com for more information about this post.