Your Use of AI In Connection With Your Legal Matters Could Destroy Your Attorney-Client and Other Privileges
Houston Principal and General Counsel Craig Power authored an alert on AI use, addressing its growing prevalence and the significant discovery risks it may pose in litigation. The alert highlights a recent decision holding that AI-generated chats are not protected by the attorney-client privilege or work product doctrine, potentially exposing sensitive strategies and communications. Clients are encouraged to exercise caution and consult counsel before using AI platforms in connection with legal matters.
The employment of AI in our business and personal lives is increasing in scope and at a rate few of us would have predicted just a short time ago. However, as with many new frontiers, that rapid growth can bring with it unexpected and unintended consequences.
When clients use an AI platform (whether a free version or a paid subscription), it is becoming more and more common for a litigation opponent to request that the entire chat—both the information the client input and the AI platform’s output—be produced in discovery. Some courts confronting discovery fights over that information are ruling that these chats are not protected from discovery and must be handed over to your litigation opponent. Because the consequences are so significant, this client alert discusses a recent decision, which concludes that a client’s AI chats are not protected from discovery under the attorney-client privilege or the attorney work product doctrine.
In United States vs. Heppner, the Federal District Court for the Southern District of New York dealt with these issues in a criminal case. The nature of the case does not matter for our purposes because the legal theories and privileges in question are the same in federal civil and criminal cases. Heppner was charged with securities fraud, wire fraud, and other criminal violations. He utilized the AI platform “Claude” in preparing reports outlining defense strategies and what he might argue about the facts and the law. Some of that input was based on information Heppner had learned from counsel, and Heppner shared the AI results with his counsel.
The government had seized Heppner’s electronic devices and a trove of documents, including the AI inputs and results. Heppner sought to retrieve those items, insisting, in part, that their confidentiality was protected by the attorney-client privilege because the materials included information he had received from his counsel. Without belaboring the Court’s discussion and reasoning, suffice it to say the Court concluded that the communications to and from Claude by Heppner were not between an attorney and client, so the communications were not privileged. As a side note, the court stated that the attorney-client privilege is premised on an expectation of confidentiality, and the Claude user agreement clearly disclaimed such confidentiality. Even without that disclaimer, however, once the information was input into Claude, it was no longer a confidential communication solely between an attorney and client, worthy of attorney-client privilege protection.
Heppner next argued that the materials were protected from discovery by the attorney work product privilege. That privilege provides qualified protection for materials prepared by, or at the behest of, counsel in anticipation of litigation or for trial. The Court observed that the materials in question were Heppner’s and were not prepared by, or at the behest of, counsel. While the materials reflected Heppner’s thoughts on his defense strategy, absent his lawyer’s role in formulating that strategy or directing the AI research, there was no work product protection for the AI inputs and the reported results. The Court rejected Heppner’s claims of attorney-client and work product privileges, and allowed the government to retain Heppner’s case-strategy documents.
AI can be a great tool, but we are beginning to experience unexpected, certainly unintended, implications of its use. If you wish to use it in connection with your legal issues or matters, you would be well served by consulting with your counsel about what the consequences might be. However, we discourage you from inputting our communications, strategies, and/or legal theories into any AI platform, as we have special AI for lawyers here that preserves privilege when we are the ones using it.
About the Author
Craig Power serves as the firm’s General Counsel and focuses his practice on complex commercial and construction litigation, as well as bankruptcy and debtor-creditor matters, representing clients nationwide. He also leads the firm’s Commercial Litigation practice group and is a frequent author and speaker on bankruptcy and collection issues. Craig can be reached at 713-535-5528 or cpower@cokinoslaw.com.
About Cokinos | Young
Cokinos | Young has led Texas construction and real estate law for over three decades. And today, our 100+ dedicated professionals operate coast to coast and proudly handle all aspects of construction law for owner/developers, project managers, general contractors, design professionals, subcontractors, sureties, and lenders. We provide both dispute resolution and transactional services to clients through all phases of commercial, industrial, pipeline, offshore, civil, and residential construction. Our reputation was built on relentless commitment to client service and the industries we serve, and that remains our primary driver. Dedicated. Resilient. Expertise. That’s Cokinos | Young. Learn more at cokinoslaw.com.