Protecting Privilege And Confidentiality When Using AI Tools

Generative Artificial Intelligence (AI) tools are increasingly being used by businesses, often without the knowledge or direction of their counsel. A recent federal court decision, United States v. Heppner (S.D.N.Y. Feb. 17, 2026), illustrates why that approach carries real legal risk. In Heppner, the defendant conducted legal research using an AI platform and sent the results to his lawyers, but did so without being directed to do so by counsel. The court held that the materials were not protected by the attorney-client privilege or the work product doctrine. The court's reasoning rested on three grounds:

• the AI outputs were not communications between the client and his lawyers;
• the AI platform's privacy policy reserved the right to share user data with third parties, eliminating any reasonable expectation of confidentiality; and