Client's chat with a robot is not privileged

 Several sources that I follow reported this week on a case in New York that held that a client's chat with a public AI platform was not protected by attorney-client privilege.  See United States v. Heppner, available here.

For some reason, this surprised some people and I am not sure why.  

Let's be clear about what happened in this case.  Using some information obtained from a lawyer, a client - on their own - used an AI platform to get more information.  The information at issue is the one obtained from the AI in reply to the client's prompts and the court held - not surprisingly (at least to me) - that it was not privileged.

Why am I not surprised?  Because privilege information is defined as information shared between a lawyer and a client for purposes of obtaining legal representation.  The only way that one could argue that the information at issue in this case should be considered privileged is if we consider the AI platform (whether ChatGPT or one of its many equivalents) to be a lawyer.  Is anyone in their right mind going to argue that?  I don't think so.

But what about "work product"?, you might ask.  Well, what about it?  Work product refers to materials created by the lawyer as part of the representation of a client in litigation.  The "product" created in this case was created by the client, not by the lawyer and not at the request, direction or supervision of the lawyer. 

I do not know why anyone would have thought that arguing that the information generated by a client doing their own research would be considered privileged under these circumstances.  But just in case there was any doubt, there you have it.  Now there is precedent explaining what that argument will not be convincing.

What should lawyers learn from this case?  That you should tell your client that if they want legal advice, they should go to a lawyer, not to an AI platform because that "advice" will not be protected from discovery -- aside from the fact that the AI's advice may be bad or inaccurate - but that's another story.

For more on the story you can check out Ethical Grounds and The Law for Lawyers Today, among many others.

For a good article on general advice regarding the fact that clients are using AI to ask legal questions check out this article in Above the Law.

Having said all that, a more interesting question to ask is whether information that a lawyer generates when using AI should be considered to be privileged.  One would think the answer is yes, since the result of the query could be considered part of the lawyer's research and, at least in litigation, therefore, work product.  But the court in Heppner reasoned that the fact that the AI platform in question did not keep the information it collected private meant that sharing information with it was not done with a reasonable expectation of privacy.  If that is the case, then no use of AI would be protected.

For a good critique of this part of the opinion, check out the post by Jonah Perlin cited in the article in  Ethical Grounds linked above.