By Michael McMahon
Almost anyone facing legal issues such as an investigation, a lawsuit, a termination, or a contract dispute will instinctively turn to the internet for information. With recent changes in technology, that often means not just Google but instead turning to generative artificial intelligence (AI) tools like ChatGPT, Claude, Gemini, or Copilot. These platforms can summarize laws, generate timelines, draft narratives, and even assess “legal exposure” in seconds. They should never be relied on as the final answer, but they provide a useful starting place for people with no experience in the law. However, a potential pitfall of such efforts is potentially being forced to turn over your AI searches if you do end up in a lawsuit.
For many people, this type of online research feels private. You are alone at your keyboard, with no opposing party (or attorney) watching. Because you find it helpful, you plan to show the results to your lawyer. In doing so, you may be thinking that the information will be protected by attorney-client privilege. But recent court decisions send a stark warning that documents and analyses generated with AI before engaging counsel may not be protected by privilege. That means it may be subject to discovery from the other side and may ultimately be used against you in court. [jdsupra.com], [insuranceb…essmag.com]
Attorney-client privilege is a legal rule protecting confidential communications between the attorney and client. The privilege is one of the most sacrosanct protections in the legal system and has few exceptions. The privilege shields confidential communications between a client and a lawyer made for the purpose of obtaining legal advice. While privilege matters, it does not always apply to communication on legal matters. The privilege applies only when legal advice is sought from a professional legal advisor in confidence, ensuring the client can speak freely to receive effective representation.
The work-product doctrine provides additional protection for materials prepared by, or at the direction of, counsel in anticipation of litigation and shields it from discovery by opposing parties. Protected work product includes documents, reports, interviews, and notes created specifically for legal proceedings, by the attorney or at the direction of the attorney. These doctrines exist to encourage honesty between clients and lawyers. But they are narrowly defined and easily lost.
Generative AI sits squarely at the intersection of these doctrines. Using public generative AI probably does not entitle the communication to protection under attorney-client privilege in California. Recent legal developments indicate that sharing confidential information with AI platforms is viewed as disclosing it to a third party, which destroys the confidentiality necessary for privilege.
In United States v. Heppner, a federal judge in the Southern District of New York confronted a question of first impression: whether a defendant’s use of a public AI tool to analyze legal exposure and defense strategy was protected from disclosure. [mindingyou…gation.com] The defendant, facing securities and wire-fraud charges, used Anthropic’s AI platform “Claude” to generate approximately 31 documents after learning he was the target of a criminal investigation. He later shared those documents with his attorneys and asserted privilege when the government sought access. The court rejected the privilege claim, completely.
The judge in the case held that the AI-generated materials were protected by neither attorney-client privilege nor the work-product doctrine, even though they were created in anticipation of litigation, contained legal analysis and defense themes, and were later transmitted to counsel. [venable.com], [bakerlaw.com] The ruling rested on several critical points that matter for everyday consumers.
AI Is Not Your Lawyer
Privilege requires communication with a licensed attorney or an authorized agent of the attorney, such as an interpreter. An AI platform, even one that sounds authoritative, is not a lawyer, does not owe the user any fiduciary duties, and cannot form a privileged relationship. [news.bloom…erglaw.com], [americanbar.org] As the court emphasized, all recognized privileges are rooted in a “trusting human relationship” that cannot exist between a user and a chatbot.
Confidentiality Was Defeated by the Platform Itself
The AI tool’s published terms allowed collection, retention, training, and disclosure of user inputs to third parties, including government authorities. That alone defeated any reasonable expectation of confidentiality, a core element of privilege. [jdsupra.com], [insuranceb…essmag.com] In other words, by typing into the AI, the defendant disclosed his thoughts to a third party.
Anticipation of Litigation Was Not Enough
Many people assume that anything created “in anticipation of litigation” is protected. That is not true. The work-product doctrine generally protects materials prepared by or at the direction of counsel. In Heppner, the defendant acted independently. The court likened his AI use to a layperson’s internet research that falls outside the doctrine’s protection. [jdsupra.com], [dlapiper.com] Sending the documents to a lawyer later did not cure the defect.
Having a plan to talk to a lawyer while generating such information is one of the most common and dangerous assumptions. Courts have long held that self-generated notes, timelines, and analyses may be privileged only if they are created for the purpose of communicating with counsel and remain confidential. AI complicates this analysis because confidentiality may be compromised at the moment of creation. [hsfkramer.com] The court expressly rejected the argument that AI outputs were no different from a client’s handwritten notes, the difference was the interposed third party, namely the AI platform itself.
This is not a blanket argument against all use of AI. Rather, this is an effort to caution potential clients about when and how to use it. Before consulting a lawyer avoid using public AI tools to analyze legal liability, defenses, or exposure. Do not upload documents, facts, or timelines related to a dispute and do not assume “private” means confidential.
Generative AI feels like a safe place to think through legal problems. But courts are increasingly sending the message that doing so carries risks. And attorneys are becoming increasingly aware that discovery aimed at obtaining a party’s AI-based searches may be useful. If you are facing a serious legal issue, the safest first step is still the old-fashioned one: talk to a lawyer first before you ask an algorithm.
Michael McMahon is a Partner in Carmel & Naccasha’s Litigation Practice with a focus on business, real estate, employment, and public agency litigation, in addition to insurance defense and corporate and business transactions. Mike can be reached at (805) 226-4148 or mmcmahon@carnaclaw.com.
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