Claude is not a lawyer. ChatGPT is not a trusted advisor. Clients sometimes first turn to AI to quickly assess the legal landscape of problems they are facing. But clients should be forewarned that anything they tell AI might come back to haunt them in future litigation.
Attorney-Client Privilege
The attorney-client privilege protects from disclosure confidential communication between an attorney and a client made for the purpose of obtaining or providing legal advice. The rationale behind the privilege is that it serves the public interest for clients to communicate fully and frankly with their lawyer so that they can obtain sound legal advice without fear that the communication could later be used against them. This purpose is not served when clients share secrets with AI.
United States v. Heppner
The recent case of United States v. Heppner illustrates the principle that communications between a client and AI are not protected by the attorney-client privilege. In that New York federal case, the client had received a grand jury subpoena in a criminal matter that later resulted in an indictment for fraud. After receiving the subpoena, and anticipating an indictment, the client used Claude, without consulting counsel, to prepare an outline of his defense strategy, including the facts and law he might use to argue against the indictment. The FBI later executed a search warrant and seized the AI documents.
The client’s lawyer asserted attorney-client privilege to try to keep the documents out of the court case. But the court ruled that the client’s communications with Claude were not privileged. First, the AI documents were not communications with an attorney. That fact alone defeated the claim of privilege. Second, the communications were not confidential because users of Claude consent to the collection of user-inputted data, which may then be disclosed to third parties. Third, the communications with Claude were not related to obtaining legal advice since the client used Claude of his own volition and not at the suggestion or direction of counsel.
Finally, the court considered whether the work product doctrine, a concept related to the attorney-client privilege, applied. The work product doctrine protects from disclosure materials that are prepared by or at the behest of an attorney that reveal the thought processes of the attorney. Because the client’s attorney had not directed the client to use Claude, the client’s communications with Claude were not protected by the work product doctrine.
The Takeaway
The takeaway for clients is to never use AI on their own for their legal issues. AI is not a lawyer, so the attorney-client privilege does not apply. Any information inputted or generated could be obtained by the opposition in later litigation. While a “closed enterprise system” might be more confidential, it nonetheless is not an attorney, so communications with it would likely still be discoverable. Instead, engage counsel early for all legal matters so that appropriate AI tools can be properly utilized in a way that will ensure protection of the attorney-client and work product privileges.
If you have questions about how this may affect you, contact your KDDK attorney.
