A New Frontier: Publicly Available AI And The Loss Of Privilege

In an issue of first impression, a federal US trial court in New York recently held that a criminal defendant’s communications with a public generative artificial intelligence platform were neither protected by attorney-client privilege nor the attorney work product doctrine (the latter is akin to litigation privilege in Canada)¹. While the applicability of the court’s holding in United States v. Heppner is constrained to its facts and is not binding authority, the opinion serves as a cautionary tale for companies, in-house counsel, and lawyers alike, and reinforces the risks inherent in using AI platforms in connection with legal matters. 

What you need to know

• The type of AI tool (likely) matters. The court in Heppner framed the issue before it narrowly, referring to defendant’s use of a “publicly available AI platform”. The holding may have come out the other way had the tool at issue been a secure, enterprise-grade system with enhanced privacy protections, as opposed to a