Artificial Intelligence: Attorney-Client Privilege's Silver Bullet

As artificial intelligence (“AI”) becomes increasingly integrated into daily life, more people are turning to AI for emotional support and personal decisions. (For more on this topic, see this Arizona State University news article.) 

It’s no surprise that many now also use it for legal guidance, oftentimes as a “starting point” before consulting a lawyer. 

That’s exactly what the defendant did in United States v. Heppner. The defendant’s communications with AI unintentionally caused him to waive the protections of the attorney-client privilege over sensitive case information. 

Attorney-Client Privilege
Most people are familiar with “attorney-client privilege,” but what exactly is it? It is one of the oldest and most sacred protections for confidential communications. The privilege belongs to the client, not the attorney. Its purpose is to encourage open and honest dialogue between lawyers and clients, which ultimately serves the public interest by promoting compliance with the law and the fair administration of justice. 

The privilege generally protects communications between an attorney and client made for the purpose of seeking or providing legal advice. These protections last indefinitely, even after the attorney-client relationship ends of the client dies.

Waivers and Exceptions
Although attorney-client privilege is strong and long-lasting, it can be waived, intentionally or unintentionally, by the client. There are also limited circumstances where an attorney may be compelled to disclose the protected communications. 

One common way privilege is waived by the client is by sharing confidential case information with a third party. This includes bringing a friend or family member to meeting with your attorney or casually discussing case details with a confidant over coffee or drinks. Those communications are not privileged and thus, the information discussed will no longer be protected by confidentiality. 

And that is exactly what the judge decided happened in Heppner.  

United States v. Heppner
In United States v. Heppner, the defendant, a senior executive indicted for securities fraud, used AI to analyze his legal situation and develop a defense strategy. The government sought to use the AI search results, while the defense argued the information remained protected by attorney-client privilege. 

The judge ruled that the defendant waived privilege by disclosing sensitive information to AI, which constituted a third-party disclosure. The court further held that even if the defendant later intended to share the AI results with his attorneys, the privilege could not be restored once the information had already been revealed to a third party. 

The Heppner Effect 
This case serves as a timely reminder of how attorney-client privilege works and how easily it can be waived. While Heppner is a New York decision, it is the first ruling addressing AI and attorney-client privilege, and it is likely to influence courts nationwide. 

The case highlights an important lesson: AI is a powerful tool, but it can also unintentionally work against you. What seems like a helpful resource may become a costly mistake. 

Key takeaway: If you are involved in any type of litigation, never disclose sensitive case information to friends, family, or even AI.