Your AI Conversations May Not Be Privileged: What United States v. Heppner Means For Every Organization Using AI

If anyone at your organization has ever discussed a legal matter with a consumer AI chatbot, a federal judge just confirmed what nearly half of in-house counsel already feared: those conversations are likely not privileged.

In a September 2024 survey, the Association of Corporate Counsel asked in-house counsel which category of AI tools poses the greatest risk of compromising attorney-client privilege. Forty-nine percent chose generative AI — by far the largest response.

On February 10, Judge Jed Rakoff of the Southern District of New York proved them right. In United States v. Heppner, No. 25 Cr. 503 (S.D.N.Y.), he ruled from the bench that approximately 31 documents a criminal defendant created using a consumer AI chatbot are protected by neither attorney-client privilege nor the work product doctrine. It is the first federal court decision to directly address whether privilege attaches to materials generated through a consumer AI platform.¹