Facing a legal issue? While it might be a gut reaction to plug your problem into your favorite AI platform for advice, STOP. A recent legal case created precedent when it comes to using AI for communicating with an attorney, i.e. attorney-client privilege. See how sharing key legal data with AI can impact attorney-client privilege.
What is attorney-client privilege?
Attorney-client privilege is a legal protection that keeps communications between a client and their attorney confidential, preventing disclosure to third parties, including during discovery or in response to a subpoena. Its purpose is to encourage open and honest discussions so attorneys can provide effective legal advice.
At its core, attorney‑client privilege is designed to foster open and honest communication between clients and their attorneys. This protection ensures that clients can share all relevant information, enabling attorneys to provide the best possible legal advice without concern that these discussions might later be revealed to an opposing party.
This privilege can be waived both by affirmatively waiving it or through the client’s actions. Once privilege is waived, it may be lost permanently. Courts may not permit parties to reclaim privilege, even if the disclosure was accidental or resulted from a misunderstanding of technology.
AI can waive attorney-client privilege
AI users beware: AI is one such technology which can unknowingly waive attorney-client privilege. Why? Most public generative AI platforms do not provide a confidential environment. Information entered may be stored, reviewed, or utilized by the service provider according to its terms of service—effectively sharing it with a third party.
Sharing privileged information with a third party typically waives attorney‑client privilege. Courts analyze disclosure to AI platforms the same way they analyze disclosure to any non‑lawyer. The technology does not change the doctrine.
Generative AI is not a lawyer
Interactions with a public AI system—including those involving legal strategy or exposure—do not constitute communications with counsel and therefore are not protected by privilege.
In United States v. Heppner, a federal court in the Southern District of New York addressed, for the first time, whether documents generated through a public AI platform were protected by attorney‑client privilege or the work‑product doctrine. Here is a summary of the case:
- The defendant used a public generative AI tool (Claude) after becoming the target of a criminal investigation to analyze his legal exposure, outline defense strategies, and prepare legal arguments based on facts and law.
- The defendant subsequently provided the AI‑generated documents to his attorneys, and when they were sought by the other party they asserted that the documents were privileged since they had been created to seek legal advice.
- The court rejected that argument and ordered the documents produced to the government.
Analysis of this case infers that judges will “consider how privilege can operate to promote effective collaboration between clients and attorneys in this age of AI.” Courts will apply established privilege rules to new technologies—and recent case law demonstrates they will not hesitate to find waiver when confidentiality is compromised.
Using AI for legal issues: a how-NOT-to guide
Similar to guidance given to attorneys on using AI for work product, clients need to be equally cautious.
If you are facing a legal issue that requires legal counsel, here are three things to remember:
- Uploading attorney memos, strategy documents, or legal advice to a public AI platform risks waiver of privilege—even if the goal is merely to summarize, rewrite, or “pressure‑test” arguments. Do not upload correspondence, legal memoranda, draft pleadings, internal investigations, or attorney communications into consumer AI tools without explicit direction from your attorney.
- A document does not become privileged simply because it is later sent to a lawyer.
- Even copying language received from counsel into an AI prompt can waive privilege if it reveals legal advice or counsel’s analysis to a third party.
In short, approach public generative AI platforms as public forums, not private workspaces. And more importantly, consult counsel before using AI tools in connection with legal matters, particularly investigations, disputes, regulatory issues, or transactional strategy.
In this age of AI, please press pause on entrusting your legal concerns to Claude or any other AI platform. Connect with trusted counsel and let a licensed professional help you build a path forward.
