What Attorney-Client Privilege Is
Attorney-client privilege protects confidential communications between a client and a lawyer when made for the purpose of obtaining or providing legal advice. It applies to conversations, emails, texts, shared documents, and legal drafts. The privilege exists to ensure clients can speak openly with counsel without fear of disclosure. An emerging trend
that we see in our practice is potential clients using AI to research and plan a legal strategy before consulting with us. This is often not a wise choice by the client as it can inadvertently make available to adversaries information that would remain confidential if traditional practices to preserve attorney-client privilege were followed.
Why the Privilege Is Important to You
Privilege encourages honest communication, protects your legal strategy, and promotes early and effective engagement with counsel. Without it, clients may hesitate to seek legal
help or disclose to counsel important facts.
How Privilege Can Be Inadvertently Waived
Privilege can be lost in a variety of ways: through disclosures to third persons, use of employer-controlled devices, public discussions, or by entering privileged information into public AI tools. Modern AI platforms may constitute disclosure to an outside party even if the provider states it does not utilize user input for training of AI.
The Heppner v. Claude Decision
In Heppner v. Claude, No. 25-cr-00503 (S.D.N.Y. Feb. 10, 2026)(Rakoff USDJ), the court held that entering attorney-client emails and draft legal arguments into a public AI system —
Claude in this case — constituted voluntary disclosure to an unprivileged third party. The court reasoned that transmitting sensitive content to an AI provider’s servers destroyed
confidentiality regardless of whether the provider claimed not to store or reuse the data. Sharing the search results with counsel once obtained did not protect the information. The
damage was done when the information was put into the public domain.
Consequences of Waiver
Waiver can lead to discovery obligations of disclosure, broader subject-matter waiver, loss of strategic protection, and negative effects across multiple proceedings. Privilege, once
waived, generally cannot be restored. Had the inquiries in Heppner been made by or at the direction of counsel the privilege likely would have been protected.
Practical Steps to Preserve Privilege When Using AI
• Never enter privileged facts, drafts, or legal questions into public AI tools unless specifically instructed to do so by an attorney you have formally retained.
• Even if the AI platform says that it does not share information don’t believe it. It pays to be cautious.
• Limit non-business legal communications to personal—not employer—devices. This applies whether you’re dealing with AI or other forms of communication.
• You can work with counsel to formulate effective AI inquiries but it is safest to let the lawyers run the searches.
The Heppner decision applies the traditional tools of privilege analysis to the emerging AI
technology. While the law can change it is unlikely to do so in this case. Proceed with
caution.
