AI and Attorney-Client Privilege
Travis Thickstun, JD
Beware of artificial intelligence (AI) tools and their impact on attorney-client privilege. Attorney-client privilege means that information you share with your lawyer in a confidential manner for the purpose of getting legal advice is considered privileged. A court generally cannot compel you or your lawyer to reveal this information. However, you can waive (lose) the attorney-client privilege by voluntarily disclosing information to a third party.
Some court decisions have found that if you share information with a public AI tool whose terms of use do not protect privacy, you waive attorney-client privilege on the information you share with the AI.
One key case is a 2026 decision in federal court in the Southern District of New York. This case, United States v. Heppner, held that attorney-client privilege did not protect documents that a client created using a public AI, even though the information the client had fed into the AI was originally privileged because it came from his lawyer. The court reasoned that the client voluntarily waived attorney-client privilege when he disclosed information to a third-party AI whose terms of service stated that users should have no expectation of privacy.
This is an evolving area of law, and more upcoming court decisions may clarify how AI impacts attorney-client privilege. But, the safest approach for now is likely to avoid feeding any sensitive information into public AI tools, as you could be waiving attorney-client privilege by doing so.
Thickstun Luo LLC may be able to help you with your legal needs. Contact us today for a consultation.
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LEGALESE is an online blog by Thickstun Luo LLC. The blog explains legal terms and concepts in plain English.
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