Duty to Confirm In-house Counsel’s Bar Status Before Discussing Privileged Information with Counsel

September 24, 2010

In a recent order United States Magistrate Judge James L. Cott (Southern District of New York), denied Gucci’s application for a protective order against the disclosure of the privileged communications of Gucci’s Vice-President, Director of Legal and Real Estate Jonathan Moss, on attorney-client grounds.  See entry 125 at 1:09CV04373.  The Court recognized that for the duration of his employment with Gucci, Jonathan Moss was an inactive member of the California State Bar.

The court claims that an essential element of the attorney-client privilege is that an attorney participates in the communication.  The court reasoned that an attorney is one who is “admitted to the bar of a state or federal court.”  In re Rivastigmine Patent Litigat., 237 F.R.D. 428.  Cott cites Wright and Miller’s Federal Practice and Procedure sec. 5480 : “[I]nactive or retired membership that does not permit the member to practice law will not suffice.”  The Order stated that “Moss did not possess the type of bar membership that authorized him to engage in the practice  of law.  California explicitly limits the practice of law to active members.”  Cal. Bus. & Prof. Code Sec. 6125.  Since Moss had no bar membership authorizing him to practice law in any jurisdiction, Gucci’s communications would not satisfy any standard of the attorney-client privilege.

The court’s order continues to look at the federal common law that a client can avail itself of the privilege if the client can demonstrate that it reasonably believes the person (Moss) was authorized to practice law.  In this case, however, Gucci cannot make this claim.  Once Gucci promoted Moss to a legal position, it was obligated to conduct some due diligence to confirm Moss’s professional status as an attorney.  Minimal due diligence includes that Gucci confirm Moss was licensed in some jurisdiction, that the license authorized him to practice law, and that he was not suspended from practicing or faced disciplinary sanctions.

This Memorandum and Order appears to place a burden on corporations, and potentially outside counsel, to check in-house counsel’s bar status before discussing privileged corporate information with that counsel and most certainly before placing any documents involving that counsel on a privilege log in front of opposing counsel.  Corporations can easily confirme in-house attorney licensure by using the appropriate Individual State  ATTYLICENSE-XX  database on Westlaw.