Using AI Can Waive Your Attorney-Client Privilege
Your use of generative AI in connection with your legal matter can create serious risks of waiver of attorney-client privilege and/or attorney work product protection. Two recent federal cases, United States v. Heppner and Warner v. Gilbarco, Inc., explain how your use of a public AI system to analyze sensitive legal information may not be protected the same way as if you were working with your lawyer.
AI Is Not Your Lawyer
If someone uploads client documents or information about a legal dispute into a consumer AI tool and asks for legal analysis, a court may view that as sharing information with a third party rather than keeping it confidential. That can create arguments that privilege was waived, especially if the AI is being used as a substitute for legal advice rather than as a private drafting aid under lawyer supervision.
By contrast, where AI is used inside a lawyer-directed workflow, courts may be more willing to treat the material as protected work product. The safest assumption is that not every use of AI is equal, and the protection depends on who used it, what was shared, and whether the process stayed within a legal team’s confidential work.
The Federal Rules of Civil Procedure Matter
Recent amendments to the Federal Rules of Civil Procedure require parties to address privilege-log procedures earlier in litigation than in the past. To avoid any risk of waiving privilege by using AI to assist in litigation (or in planning for litigation) – both attorneys and their clients must document how they use this technology and should never feed their legal information into a consumer product like ChatGPT. Clear policies related to how AI will be used in legal matters, and how that use will be documented, are every bit as important as any other aspect of knowing how to effectively use this technology.
Practical Takeaway
The simple rule is this: do not treat public AI tools like a private law office. Clients should assume that any documents or information they upload to such a tool, and any analysis generated by the tool, could later be examined in discovery – and beware! Furthermore, clients should make sure any attorney they work with stays abreast of developments in the law, such as Heppner and Warner, and understands best practices for safeguarding clients’ confidences when using AI.
