A groundbreaking decision by the US District Court for the Southern District of New York ( United States v. Bradley Heppner) has confirmed that communications with publicly available generator AI platforms are not protected by attorney-client privilege or the air product doctrine.
The key takeaways:
- No “AI-Client” Privilege: Because AI is not a licensed attorney, no formal attorney-client relationship exists.
- Privacy Policies Matter: Using free platforms that train on user data or reserve the right to share inputs with third parties destroys any “reasonable expectation of confidentiality.”
- Proactivity vs Direction: Documents created by a client using AI on their own initiative- without specific direction from counsel- do not qualify as protected work product.
- No Retroactive Shield: Sending your AI-generated summaries to your lawyer later doesn’t “cure” the lack of privilege; it wasn’t privileged when created, it stays discoverable.
The Bottom Line: Traditions legal rules apply to modern tech. Before using AI for legal strategy or defense prep, ensure you are using enterprise-grade tools with strict data silos and operating under the explicit direction of counsel.
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