Imagine this scenario: Your company is in the midst of a hard fought lawsuit critical to your brand management strategy. Your CEO, as a good corporate executive, has asked your deputy, the head of litigation, for legal advice on the strengths and weaknesses of the case. Your deputy and the CEO have had frank discussions concerning the company’s novel legal theories, the holes in the company documents, the facts you cannot prove and the other executives who will talk too much at their depositions. Then in the middle of the lawsuit the court tells you the company has lost the attorney-client privilege for all communications between your deputy general counsel and the CEO (and all other company employees) because she is not an active member of the bar. Is this a law school exam question or a general counsel’s worst nightmare?
Unfortunately, it is the latter: On June 29, 2010, the Southern District of New York found that communications to and from Gucci’s vice president and director of Legal and Real Estate did not deserve attorney-client privilege protection because for eight years he had worked at Gucci without an active license in any state. Gucci America Inc. v. Guess? Inc., No. 09 Civ. 4373 (SAS) (JLC), 2010 U.S. Dist. LEXIS 65871 (SDNY June 29, 2010).
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