Think Before You Chat: Using AI For Legal Questions May Waive Privilege And Create Discovery Risks

With artificial intelligence tools becoming part of everyday decision-making, for some, chatbots are a first stop for help with answering questions, including questions that feel “legal” in nature. Such questions might include whether a contract clause is enforceable, how to respond to a demand letter, or what to say in an internal investigation. The AI response, while prompt and convenient, carries legal risk. Sensitive facts entered into a consumer-facing AI chatbot may be discoverable, and the act of using the tool can undercut attorney-client privilege.

A recent development in the Southern District of New York illustrates such risk. In a pretrial conference in United States v. Heppner, U.S. District Judge Jed S. Rakoff ruled from the bench that a defendant could not claim privilege over dozens of documents he generated using an AI service and then later forwarded to his lawyers. The underlying case is a federal criminal prosecution in which a grand jury indicted the defendant