AI tools can help users organize information and prepare questions, but a conversation with ChatGPT, Claude, or another platform is not automatically protected by attorney-client privilege. A federal decision discussed in this video offers an early warning about putting case details and attorney communications into AI.
The Three Requirements for Attorney-Client Privilege
Attorney-client privilege generally requires a communication between attorney and client, intended and actually kept confidential, for the purpose of obtaining legal advice.
In United States v. Heppner, a criminal defendant entered information received from counsel into Claude while trying to verify or analyze it. The government later subpoenaed the AI communications and sought to use them in the case.
Why the AI Conversation Was Not Privileged
The communication was between the defendant and an AI provider—not between the defendant and counsel. The defendant also stated that he was not seeking legal advice from the AI tool. Those facts undermined two core privilege requirements.
Confidentiality created another problem. Consumer AI terms may disclose that submitted information can be stored, reviewed, or used to improve systems. A user who accepts those terms may have difficulty showing a reasonable intent to keep the communication confidential.
A Third-Party AI Tool Can Pierce Confidentiality
Privilege can be waived when protected information is voluntarily shared with an unnecessary third party. Copying legal advice, case facts, draft strategy, or attorney communications into a general AI service may therefore make that material discoverable.
The concern is broader than criminal cases. Businesses routinely hold trade secrets, contract strategy, employee information, regulatory analyses, and sensitive dispute records. Entering those materials into the wrong platform can create confidentiality, discovery, and data-governance risk.
Attorney Use of AI May Be Different
The decision does not say that every attorney use of AI destroys privilege. A lawyer may use an approved business tool with appropriate privacy protections as part of providing legal services, much as a firm uses other vendors and technology.
The key questions include who selected the tool, why it was used, what contractual protections apply, whether data trains shared models, who can access it, and whether the use was reasonably necessary to provide legal advice.
Free and Consumer AI Accounts Carry More Risk
A paid account alone does not guarantee privilege, but business and enterprise offerings may provide stronger commitments against using customer content for general training. Users should read the actual terms rather than assume a familiar brand is confidential.
Do not place privileged or sensitive material into a free consumer AI service merely because the interface feels private. A chat window is not the same as a confidential legal consultation.
Practical Rules for Clients and Businesses
Speak with counsel before using AI to analyze an active legal matter. Do not paste attorney emails, litigation strategy, evidence, confidential contracts, or detailed case facts into a public or consumer tool.
Ask your attorney whether the firm uses AI and what protections govern that use. Businesses should adopt written AI policies identifying approved platforms, prohibited data, retention requirements, and review procedures.
Use hypothetical or anonymized prompts only when doing so truly removes identifying and confidential information. When the stakes are significant, let counsel determine whether and how AI should be involved.
The Bottom Line on AI and Attorney-Client Privilege
AI can be useful, but it is a third party—not your lawyer. Sharing legal information with it may expose communications that would have remained protected if kept between attorney and client. Start with counsel, not a chatbot, when privacy and privilege matter.
This article supports a general understanding of attorney-client privilege and is not legal advice. Consult qualified counsel about confidentiality and AI use in a specific matter.
