No Counsel, No Privilege: Courts Signal That Client AI Use May Fall Outside Attorney-Client Privilege | Bond Schoeneck & King PLLC
https://www.jdsupra.com/legalnews/no-counsel-no-privilege-courts-signal-1473741/
Publish Date: 2026-04-07 12:09:00
Source Domain: www.jdsupra.com
Here are the key takeaways from the article on the recent legal decision in the Southern District of New York:
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Attorney-Client Privilege Not Applied to AI Tools: In United States v. Heppner, Judge Rakoff determined that interactions and outputs from a publicly available generative AI,Claude, are not protected by attorney-client privilege because an AI tool is not an attorney or their agent.
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No Retroactive Privilege or Work Product Protection: Even if AI-generated documents were shared with counsel, privilege or work product protection does not retroactively apply if the documents were created without attorney instruction and direction.
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Confidentiality Risk with Unsupervised AI Use: The decision in Heppner warns legal practitioners about the risks of sharing sensitive documents with publicly available AI tools due to privacy policy disclosures that reveal limited data protections.
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Fact-Specific Conclusion, Platform-Dependent: The Heppner ruling is fact-specific and based on the AI platform used, the nature of communications and what information was provided to third parties. AI tools curated for legal work under counsel direction may warrant different conclusions.
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Need for Clear Policies and Training: Legal counsel and organizations should establish policies for AI use in legal matters, implement training on AI risks, and consult counsel before using any AI tools in legal contexts. Contractual protections with AI providers should also be considered.
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Ongoing Uncertainty About AI Tool Use: The varying Heppner and Morgan rulings indicate that courts will scrutinize AI-assisted legal work on a fact-specific basis. Questions around privilege and work product for AI use remain uncertain.
Hope this summary covers the main points! Let me know if you have any other questions.
