Attorney-Client Privilege in the Age of AI

By Lauren E. Wenger, Esq.
Gawthrop Greenwood, PC

The adoption of artificial intelligence (AI) is widespread and rapidly evolving, with search engine results including an AI summary that sometimes provides useful information… or wildly hallucinated inaccuracies. Before using public AI tools for legal matters, be aware that anything you share may not stay private, and that can put attorney-client privilege at risk.

AI and Legal Issues

The world is using AI tools on every level — even in email communications with attorneys or in legal filings before an attorney is retained. However, the proliferation of generative AI is transforming American civil litigation at a speed and breadth that the legal system is not designed to absorb. A recent case demonstrates how the courts’ positions are evolving to address AI usage.

What the Courts Say About AI

In United States v. Heppner, a federal court held that there was no attorney-client privilege or work-product doctrine protection for documents prepared using public generative AI.[1] The ruling exemplifies the essential fact that AI is not a lawyer, and the court would not grant lawyer-like privileges to the work of AI.

The reasoning in the Heppner decision emphasized that communications with a non-lawyer AI tool lacked the necessary attorney-client relationship and confidentiality, including in light of the platform’s data and disclosure practices.[2] In other words, if you use open, consumer AI tools about a live matter without legal guidance, you may forfeit privilege and expose sensitive strategy.

While not stated explicitly, there is a clear implication that running documents your attorney has written through open, consumer AI could waive the attorney-client privilege and possibly impact the outcome of your case.

Risks of AI and Attorney-Client Privilege

As AI tools continue to proliferate, we can expect more people to attempt to solve their own legal troubles through self-representation aided by AI. However, the excitement of new AI tools and the potential efficiencies they may create must be tempered by risk assessment.

AI tools may offer speed and convenience, but they are not a substitute for legal advice, and careless use can create avoidable privilege problems. Until the courts provide clearer and more consistent guidance, clients should proceed cautiously and treat public AI tools as potentially discoverable spaces rather than as legal advisors.

If you are dealing with a dispute, investigation, employment issue, contract problem, or other legal concern, consult an attorney before using AI to analyze the matter.

Lauren E. Wenger is a litigator who focuses her practice in civil litigation, real estate and insurance law. Lauren handles all stages of insurance coverage from claims investigations to expert report preparation, complaints, discovery responses and subsequent litigation. She is also skilled in inspections of property and coordinating discovery for complex construction claims as well as claims related to buying and selling property. For more information, contact Lauren at lwenger@gawthrop.com or 610-696-8225.

[1] United States v Heppner, 25 CR. 503 (JSR), 2026 WL 436479 (SDNY Feb. 17, 2026).

[2] Id.