- within Environment topic(s)
- with readers working within the Telecomms and Utilities industries
A client's everyday AI usage may come back to haunt them in future litigation. More and more, individuals and clients are asking AI for legal advice on a regular basis, both before and during litigation matters. Clients create inputs with factual scenarios, documents, and other information, and query their AI system on potential outcomes or with questions. Had the individual been communicating those inquiries with an attorney, the communications would be protected from discovery by the attorney-client privilege. According to at least one recent judicial decision, however, chats with AI have no such protection and could be disclosed in subsequent litigation.
On February 10, 2026, Judge Jed S. Rakoff of the U.S. District Court for the Southern District of New York delivered an oral bench ruling concluding that materials generated through a publicly available generative AI platform were not protected by attorney-client privilege or the work-product doctrine. The decision marks one of the first instances in which a federal court has directly addressed how traditional privilege principles apply to client use of artificial intelligence.
In United States v. Heppner, a criminal defendant used a generative AI tool to analyze aspects of his case and generate written material relating to potential defenses. He later provided those materials to his attorneys. When the government sought production of the documents in discovery, the defendant argued they were protected because they reflected legal strategy and had ultimately been shared with counsel.
The court rejected that position. Its reasoning turned on a straightforward and well-established premise: communications made to a third-party (in this case an AI platform) are not communications to counsel. Privilege protects confidential exchanges between client and attorney for the purpose of obtaining legal advice. It does not extend to communications made outside that relationship simply because a lawyer later receives them. Nor can privilege be created retroactively by forwarding AI-generated content to counsel after the fact.
Why This Matters
The significance of this ruling lies not in the specific defendant or the criminal posture of the case, but in how easily the same analysis could apply in civil litigation, regulatory investigations, internal disputes, or pre-litigation strategy. Generative AI tools are now embedded in everyday workflows. Clients use them to summarize notes, refine writing, organize facts, transcribe calls, and test arguments. Those habits may seem harmless. But when they intersect with legal matters, they can create unintended privilege risk.
Clients must bear in mind that privilege depends on confidentiality. Once confidential information is shared with a third party outside the attorney-client relationship, courts may find that protection has been waived — or never attached in the first place.
Everyday AI Habits That May Create Risk
Many people are already (and unknowingly) engaging in conduct that, under this reasoning, could jeopardize confidentiality. The following scenarios illustrate where caution is warranted.
- Pasting Notes From Calls With Counsel Into AI: After a strategy call with counsel, a client pastes personal notes into an AI tool to summarize key points or evaluate the strength of a defense.
- Using AI to Evaluate Legal Exposure Before or Between Attorney Conversations: A client inputs detailed facts about a dispute into an AI tool to assess liability or potential defenses, then forwards the AI-generated response to counsel.
- Uploading Legal Advice to Simplify or “Translate” It: After receiving a legal memorandum, a client pastes it into an AI platform to obtain a simplified explanation.
- Using AI to Refine Sensitive Emails Before Sending Them to Counsel: A client drafts a candid email about potential liability, runs it through an AI tool for tone or clarity edits, and then sends the revised version to counsel.
- Uploading Confidential Documents to Prepare for a Legal Meeting: Executives upload contracts, internal reports, investigation summaries, or financial analyses into AI tools to generate talking points before meeting with counsel.
Practical Guidance for Clients
In light of this developing area of law, clients should assume that prompts and outputs entered into publicly available AI platforms may later be scrutinized in litigation. Before using AI in connection with a legal matter, consider:
- Does this involve attorney advice or legal strategy?
- Does this include confidential company information?
- Is this related to an existing or anticipated dispute?
- Is the AI platform public (even if you have your own “account”)?
- Does the platform provide enforceable confidentiality protections?
- Would I be comfortable producing this prompt in discovery?
Some general rules:
- Do not paste attorney communications into consumer AI platforms;
- Do not upload confidential legal documents without consulting counsel; and
- Involve counsel before using AI to analyze dispute-related issues.
This decision does not change the fundamental law of privilege in the digital age. The false sense of privacy we feel from discretely tapping away at our devices even in places of seclusion — homes, offices, cars — are not truly secret, but rather are mere disclosures and conversations with the technology companies that furnish the everyday conveniences ubiquitous in modern life The requirement of confidentiality — true confidentiality not just a feeling of confidentiality — remains central, even as the tools used in daily business operations evolve.
As generative AI becomes more integrated into professional workflows, clients must be deliberate about how and when they use these platforms in connection with legal matters. Routine digital habits — when applied to legal strategy or confidential communications — can carry consequences that are not immediately apparent.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.
[View Source]
