Think Before You Prompt: AI Use May Waive Your Attorney-Client Privilege | Greenbaum, Rowe, Smith & Davis LLP
https://www.jdsupra.com/legalnews/think-before-you-prompt-ai-use-may-4377651/
Publish Date: 2026-05-01 11:49:00
Source Domain: www.jdsupra.com
Here are the key points from the article presented in an unordered list:
– A New York federal court ruled that materials created using consumer AI tools are not protected by attorney-client privilege or the work product doctrine, potentially subject to disclosure in legal proceedings.
– The ruling was based on a case where a defendant used an AI tool to analyze his legal situation post-subpoena, which the court found not protected as it wasn’t part of obtaining legal advice or under counsel’s direction.
– To mitigate discovery risks, it’s advisable to consult legal counsel before using AI in contexts where litigation might be anticipated.
– Confidentiality is compromised when using consumer AI tools because these platforms can share data and outputs with third parties, including regulatory authorities.
– The court’s finding in United States v. Heppner emphasized that the AI tool was not the attorney or counsel, the materials were not made for legal advice purposes, and work product doctrine didn’t apply as the AI tool usage wasn’t at counsel’s direction.
– This ruling might set a precedent for how other courts handle AI-related privilege issues, potentially affecting both criminal and civil cases.
– The article stresses that information shared with or generated by consumer AI tools might not be protected from disclosure and could pose risks regarding confidentiality and privileges.
– Recommended practices include avoiding sensitive data input into consumer AI tools, using only approved enterprise AI tools with strong confidentiality protections, and consulting legal counsel before using AI for matters where legal advice might be or could become relevant.
– The evolving legal landscape may distinguish between consumer and enterprise AI tools, but until clearer legal guidance is available, the current stance as reflected in this case should be followed.
