Artificial intelligence tools such as ChatGPT, Claude, and Grok are rapidly becoming part of everyday business and professional workflows. While these tools offer significant benefits, a recent federal court decision serves as a reminder that using AI platforms in connection with legal matters may create unexpected risks to attorney-client privilege.
A Recent Court Decision
In United States v. Heppner, No. 25 CR. 503 (JSR), 2026 WL 436479 (S.D.N.Y. Feb. 17, 2026), the U.S. District Court for the Southern District of New York addressed whether communications involving generative AI platforms remain protected by the attorney-client privilege.
Attorney-client privilege is a legal protection that keeps communications between you and an attorney confidential when those communications are made for the purpose of seeking or receiving legal advice. This protection is intended to allow you to speak openly and honestly with your attorneys without fear that those communications will later be disclosed. To preserve that protection, it is important that confidential legal communications not be shared with others or risk waving the privilege.
The court in Heppner concluded that in a situation where a party used an AI tool to obtain legal advice and, in doing so, input confidential information into the AI-tool, can be a waiver of privilege despite later providing the same AI generated material to their attorney. The reasoning was straightforward: privilege generally protects confidential communication between a client and their attorney. When those communications are shared with a third party that is not necessary to the legal representation, the protection may be lost.
Why This Matters
Many users assume that information entered into an AI platform is private. Depending on the platform’s terms of service, data-handling practices, and security protections, that assumption may be incorrect. When confidential legal information is shared with an AI platform that is not necessary to the attorney-client relationship, privilege protections can be jeopardized.
The loss of attorney-client privilege can have significant consequences in litigation. Once privilege is waived, information that would otherwise remain confidential may become discoverable by opposing parties. Opposing parties may gain insight into legal theories, strengths and weaknesses of a case, anticipated defenses, or settlement considerations. Once privilege issues arise, parties often spend substantial time and resources litigating discovery disputes, privilege logs, motions to compel, and motions for protective orders.
How to Protect Attorney-Client Privilege
To preserve privilege while still benefiting from AI tools, consider the following best practices:
- Avoid Inputting Confidential Information: Do not enter privileged communications, legal strategies, or sensitive facts into public or third-party AI systems.
- Use Approved, Secure Tools Only: Not all AI platforms offer the same level of data protection. Use platforms vetted by counsel with strong confidentiality protections and clear contractual safeguards.
- Implement Clear Policies: Organizations should adopt written AI-use policies addressing mandatory training, data retention policies, and legal and compliance risks.
- Train Employees and Legal Teams: Ensure everyone understands that AI tools are not automatically “private” or protected.
- Involve Counsel Early: Before using any AI tool in connection with your case, check with your attorney.
- Segregate Legal Workflows: Keep privileged communications within secure, controlled environments—not external AI platforms.
The rapid adoption of AI technology is creating new and evolving legal risks, particularly around confidentiality and privilege. If you have questions about how AI tools may affect your legal matters, litigation strategy, or internal policies, we encourage you to contact our office. We are actively advising clients on the safe and effective use of AI in legal contexts and can help you navigate these emerging issues before they become costly problems.
