Article on Lawyers’ Use of AI Notetakers and Client Conversations: Ethics Rules, Risks, and Best Practices

 Would using an AI assistant to take notes of a conversation with a client compromise attorney-client privilege or the duty of confidentiality?   Carolyn Elefant has a short article addressing the issue here and a similar "ethics opinion" here.

I Want to Withdraw from My Representation, But Can I Tell the Court Why?

 The Law For Lawyers Today provides a quick review (here).

More criticism about the decision on discovery of AI research by client

 In my most recent post I wrote about a recent decision holding that the result of a client's use of an AI platform was not protected from discovery.  See here.  I argued that the opinion makes perfect sense in terms of the applicable law and that, unlike other commentators, I did not think it was "groundbreaking."  But I also pointed out (and provided a link) to some thoughtful criticism of it.

I am writing today to give you another good short comment on the opinion which takes the position that  although the opinion is correct given the state of the law, it is bad decision, and an opportunity lost to be "groundbreaking."  As the author puts it "The ruling may be defensible under existing doctrine.  But it is a disaster for the 21st-century justice system" and that the ruling is "tone-deaf [...] to the high cost of legal services and to AI’s potential to reduce those costs."

The author concludes "Judge Rakoff’s ruling mechanically applied old rules to a new world.  Today, millions of Americans are turning to interactive AI to survive a legal system that has become too expensive and too complex for ordinary people to navigate. As a lawyer, I want my clients and my potential clients to keep using AI tools. The law should encourage them to do so, not punish them for it."

The article is short and worth reading.  It is called "AI Research Can Be Used Against Clients In Court. It Shouldn’t Be" and you can read it at Above the Law, here.

Client's chat with a robot is not privileged -- UPDATED

February 22, 2026

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.

UPDATE (February 25):  Joe Patrice, of Above the Law, has published a good critique of the case here.

UPDATE #2: (March 1): For more commentary on the case (arguing it is a bad decision) go here.

Guide on best practices for using AI

 A couple of days ago I reported that the Florida Bar recently issued an ethics opinion on using generative AI technology in the practice of law.  

Meanwhile, noted law blogger Carolyn Elefant has published a short guide on best practices on using AI in the practice of law.  You can see her post on it here and you can download the guide here.

Tennessee Court of Appeals rules that inadvertent email waives privilege

 As you probably know, the answer to the question of whether an inadvertent disclosure of privileged information constitutes a waiver of the privilege is answered differently in different states.  Here is the most recent decision I have see on the issue.

In this case, as reported in the Legal Profession blog, the Tennessee Court of Appeals affirmed a trial court finding that the inadvertent disclosure of an email waived the attorney-client privilege.  The case is called Masquerade Fundraising, Inc v Horne, and you can read the opinion here.

Judge rules Trump lawyer must testify in special counsel probe of classified documents

As you probably know by now, a federal judge recently ruled that one of Donald Trump's former lawyers must testify about communications between him and his client because of the "crime fraud exception" to attorney-client privilege.  Here are some links to the coverage.

On March 22

MSNBC

Politico

Above the Law

The Guardian

Court News Service

On March 23

MSNBC

New York Times

Podcast on the attorney-client privilege as it applies to entity clients

Ipse Dixit has posted a podcast with Elise Bernlohr Maizel, Acting Assistant Professor of Lawyering at NYU Law School, in which she discusses her article "The Case for Downsizing the Corporate Attorney-Client Privilege." Maizel begins by describing the attorney-client privilege and work product doctrine. She explains why the attorney-client privilege doctrine has always been a poor fit for corporate clients. And she proposes a new model for the attorney-client privilege in the corporate context that is both more conceptually coherent and practically desirable. 

You can listen to the podcast by clicking on the play button below or by going here.

Special counsel alleges Trump lawyer's testimony is not privileged because of the crime/fraud exception

The special counsel investigating Donald Trump’s handling of classified documents is seeking to compel a lawyer for the former president to testify before a grand jury.   Because the lawyer is likely to (if he hasn't already) argue that the information sought is protected by the attorney-client privilege, the  special prosecutor is reportedly arguing that the privilege has been waived because the information relates to the client's intent to commit a crime or fraud.

Overcoming the privilege is no easy task, and I am very interested in what will happen next! Stay tuned!

As you would expect, this story has gotten some attention, so here are some links:

Special counsel seeks to force Trump lawyer to testify, reports say (Politico)

Prosecutors Seek Trump Lawyer’s Testimony, Suggesting Evidence of Crime (NY Times)

Special counsel seeks answers from Trump lawyer on classified docs (MSNBC)

Why Jack Smith going after crime-fraud on Trump attorney privilege matters (MSNBC)

Prosecutors Sent Trump A Special Valentine's Motion To Pierce Attorney-Client Privilege Under The Crime-Fraud Exception (Above the Law)

Supreme Court to address issues related to attorney-client privilege - UPDATED

January 9, 2023

If you are reading this blog, you probably know already that the US Supreme Court agreed to hear a case on whether a communication involving both legal and non-legal advice is protected by the attorney–client privilege if obtaining or providing legal advice was one of the significant purposes behind the communication.  The case is called In re Grand Jury, and the oral argument is today!

Here are a few links with commentary.  I will continue to update the list as more commentary is published after the oral argument.

SCOTUS Blog

Presnell on Privileges

UPDATE (1-13-2023):  Here are a few more links to stories that discuss the case:

Justices debate test for attorney-client privilege when lawyer’s advice has multiple purposes

ABA Law Journal:  "Law firm's more protective test for attorney-client privilege 'is a big ask,' Kagan says"

The National Law Review: "The Scope of Attorney-Client Privilege Over Dual-Purpose Communications"

The National Law Review:  "U.S. Supreme Court Is Asked to Adopt the ‘Significant Purpose’ Test to Permit the Withholding of Dual-Purpose Communications as Subject to the Attorney-Client Privilege"

US Supreme Court to decide case on attorney-client privilege -- UPDATED

December 10, 2022

The United States Supreme Court has agreed to hear a case that raises the issue of whether a communication involving both legal and non-legal advice is protected by attorney–client privilege where obtaining or providing legal advice was one of the significant purposes behind the communication.

The case is called In Re Grand Jury.  You can find a summary and links to relevant documents here.

The ABA has filed an amicus brief (available here) in which it urges the Court to consider client-lawyer communications privileged, even if the purpose of some of those communications is not to request or give legal advice.  The ABA Journal has a short article discussing the case and the brief here.

The blog Presnell on Privileges has a comment here.

UPDATE: Dec 18, 2022

Presnell on Privileges has more commentary on the case here.

There are reasons to consider not copying a client on an email to opposing counsel

 Michael Kennedy explains here.

NPR: When It Comes To Email, Some Prisoners Say Attorney-Client Privilege Has Been Erased

 NPR has published a short article on threats to the attorney-client privilege by surveillance of by prison authorities.  The article is available here.  Below you can listen to a short summary by clicking on the play button.

Michael Flynn waives privilege

Lawfare is reporting that Donald Trump’s former national security adviser Michael Flynn has waived attorney-client privilege, allowing prosecutors to interview his former attorneys at Covington & Burling LLP. Flynn withdrew his guilty plea on Jan. 14, 2020, claiming that he received ineffective assistance from his lawyers at Covington. The U.S. Attorney’s Office stated that Flynn’s claims would require information from those attorneys.  You can read the filings here.

Georgia Supreme Court holds that a malpractice suit implies waiver of the attorney-client privilege with respect to third-party attorneys involved in the representation

In a recent case summarized in the Legal Profession blog, the Georgia Supreme Court held that a malpractice suit implies waiver of the attorney-client privilege with respect to third-party attorneys involved in the representation.  Go here for more details and links.

Did Rudy Giuliani threaten to violate his duty of confidentiality on live TV?

It sounds like it!  Go here to read about it.

Law Practice Today Issue on Ethics

Law Practice Today, the magazine of the ABA Law Practice Division, just published its most recent issue and it is all dedicated to ethics issues.  You can access it here.

The main articles include:

When the Rules Stagnate Innovation, Change the Rules:  Is the profession of law its own worst enemy when it comes to innovation?

Maintaining Ethical Boundaries on the Gray Web of Marketing:  The ethics of marketing online are not always black and white.

Cybersecurity for Attorneys: Addressing the Legal and Ethical Duties: Neglecting your legal and ethical duties to protect client data carries profound risks.

Keep Your Mouth Shut!: Why lawyers must avoid revealing confidential client information in an age of open mouths.

Work-Life Synchronicity in the Legal Profession: How to get more joy out of all aspects of life–including work.

Measurement Matters in Diversity and Inclusion: The ABA Model Diversity Survey is an important tool for progress.

Rudy Giuliani and the practice of law, part 2

About 3 weeks ago I posted a comment on issues raised by some of Rudy Giuliani's recent comments and actions.  In it I suggested that there are problems with the argument that his testimony is protected by the attorney-client privilege.  Yet, I did not address the issues regarding confidentiality.  So, to complete that picture, here is an article published in LawFare discussing the issue.

Article by lawyers for whistleblowers on whether Rudy Giuliani can claim the protection of the attorney client privilege

A few days ago I posted a short comment on Rudy Giuliani and the practice of law.  In it, I questioned whether he understands the notion of the attorney-client privilege. 

Now, here is a new article by several lawyers who represent whistleblowers on how they (the authors) have used the crime-fraud exception to the privilege in the past to deny the use of the privilege and on why they think that Giuliani will not be able to claim the privilege successfully.

Rudy Giuliani and the practice of law

Unless you have been living under a rock for the past few weeks, you know that Rudy Giuliani who is often labeled to be "a personal counsel to Donald Trump" has been in the news a lot lately and that his appearances on TV have generated a lot of commentary, and jokes.  From the Professional Responsibility perspective, here are a few interesting questions Giuliani's practice has generated:  

Is Giuliani practicing law to begin with?

There has been much discussion on whether Giuliani is acting as a lawyer or as a public relations spokesperson.  It is difficult to say because we don't know what is the content of the communications with Trump or Trump's team and what tasks he has been asked to perform specifically.  But I think it can be said that he is doing both. I don't think that making personal appearances and operating as a spokesperson for a client means one is not practicing law at the same time.  I am willing to give him the benefit of the doubt on this one.  Yet, I am not so sure when it comes to taking a trip to Ukraine to meddle in an investigation, which he admitted to with those words!


Is Giuliani violating the rule regarding competence?  Is he incompetent as a lawyer?

Uf!  That's a tough one.  It is pretty clear he has committed some serious mistakes, during appearances on TV by contradicting himself, admitting to misconduct etc.  So, on the one hand, he had made mistakes, but whether those mistakes rise to the level of misconduct because of incompetence, I guess would depend on the quantity, frequency and severity of the mistakes.  I have not been keeping count, so I can't really offer an informed opinion.  I would be interested to hear if anyone has been keeping a record and what they have to say.


Is Giuliani threatening frivolous actions?

Earlier today Pro. Jonathan Turley posted, in part, that Giuliani suggested he was considering suing members of Congress over their impeachment efforts.  In response, Turley states:

Such a lawsuit would be frivolous and it is unsettling that Giuliani would put any credence into such fringe advice.

Calling the impeachment effort as “worse than McCarthy,” Giuliani revealed that he had sought legal advice on the issue: “I had a couple of talks with civil rights lawyers and a constitutional lawyer today and here’s what they’re recommending: that we should bring a lawsuit on behalf of the president and several of the people in the administration, maybe even myself as a lawyer, against the members of Congress individually for violating constitutional rights, violating civil rights.” 

In a long parade of uniquely bad ideas, this would be the final climax. First, the allegation of self-dealing in the Ukrainian call would be a valid basis for an article of impeachment. It would still have to be proven and there are defenses for any such trial that I have previously discussed. This would be viewed by a court as a facially legitimate inquiry. Second, courts do not second guess the House on such efforts. While there continues to be a debate over what might be reviewable in an impeachment proceeding, it is exceptionally unlikely that a court would seriously question this effort. 

The claim is that the impeachment interferes with a president’s inherent authority over foreign relations under Article II. That is facially frivolous.

Can Giuliani rely on attorney-client privilege to avoid Congressional testimony?

Giuliani has suggested that he is protected by attorney-client privilege in the impeachment inquiry by Democrats in the U.S. House of Representatives.  There are a number of problems with this suggestion.

First of all, Giuliani can't be "protected" by the privilege.  The privilege protects information, not an individual, and the privilege belongs to the client who is the one who has the right to claim it.  Second, the privilege only covers communications between the attorney and the client which were shared for the purpose of obtaining legal advice, and if Giuliani is not practicing law (see above) or if the communications were related to tasks other than legal services, the privilege does not apply.  Third, the information provided to an attorney by people outside the attorney-client relationship (such as foreign leaders) may not be protected.

Often Giuliani sounds like he thinks that anything told to him is protected merely because he has a law degree.  If that's what he thinks, he does not understand the law (which may point to incompetence (see above)).

Fourth, it is not clear what information Congress has requested of Giuliani and, therefore, whether it is protected by the privilege.  It is possible, for example, that the information can be considered not privileged because of the crime-fraud exception.

For more on whether Giuliani claims of privilege are valid, go to the ABA Journal, and Above the Law.