What Clients Need to Know About AI and Potential Waiver of Legal Privileges
April 30, 2026
The use of AI chatbots by clients in connection with legal matters carries significant risks. Communications with AI platforms such as ChatGPT or Claude may not be protected by attorney-client privilege. Recent federal court rulings have made clear that such communications may be subject to disclosure in both criminal and civil proceedings.
In February 2026, U.S. District Judge Jed Rakoff ruled that a defendant in a federal securities and wire fraud case was required to produce 31 AI-generated documents to prosecutors. The court found that no attorney-client relationship exists between a user and an AI platform. A Legaltech Hub analysis of this and two additional federal rulings from early 2026 found that while courts agree traditional privilege rules apply to AI-generated materials, outcomes vary depending on who is using the tool, under whose direction, and which platform is being used. The chart below summarizes how three cases compare these key factors.
Chart from LegalTech Hub Article
Clients should be aware that the terms of service for major AI platforms, including Anthropic and OpenAI, permit user data to be shared with third parties.
Recommendations for Clients
Until clear standards areestablished,when using AI in connection with any legal matterI strongly recommend thatclientstake the following stepsrecommended in a recentanalysis by the law firm of White&Case:
- Use enterprise-grade platforms only.Avoid free or consumer-tier AI tools.Any AI use should be undertaken in consultation with counsel.Only use platforms thatoperateunder strict confidentiality controls, including prohibitions on the use of client data for training purposes and restrictions on data retention.
- Seek counsel direction.Establish clear internal policies governing AI use in legal work. These policies should address platformselection, confidential data handling, and the role of legal counsel in overseeing AI-assisted work.
- Do not use AI to independently prepare for a legal matter.The Heppner case makes clear that using AI on your own, without your attorney’s direction, puts you at serious risk. Sharing those results with your lawyer afterward does not make them privileged.
- When in doubt, speak only with your attorney.When it comes to your legal matters, only speak freely with your attorney, not an AI.
