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A recent federal court ruling out of New York has important implications for anyone involved in a family law matter, whether you are navigating a divorce, child custody dispute, alimony proceeding, or property division. This advisory explains how using public artificial intelligence (AI) tools could seriously damage your case.
The Federal Ruling You Need to Know About
A New York federal court recently issued the first ruling to directly address whether conversations with public AI chatbots can be protected by attorney-client privilege or work product doctrine. The answer was clear: they cannot.
In that case, a target of a federal investigation used a public AI platform to create strategy-focused “reports” about the facts and law of his case. He later argued that because he eventually shared those AI outputs with his lawyers and had fed in information he originally received from his attorneys, the materials should be protected.
The court disagreed for three important reasons.
First, the AI is not your lawyer. There was no attorney-client relationship between the user and the AI platform, and privilege only protects confidential communications with your actual attorney.
Second, there was no reasonable expectation of confidentiality because the AI provider’s terms of service allowed the company to collect user inputs and outputs, use them to train its models, and even disclose them to third parties, including regulators.
Third, the conversations were not made for the purpose of obtaining legal advice from counsel. The user initiated them on his own, and the AI tool itself disclaimed giving legal advice.
The court also rejected the argument that these materials were protected as attorney work product, finding that they were created by the client on his own using a public tool, not prepared by or at the direction of counsel.
Why This Matters for Your Family Law Case
You do not need to face a criminal investigation for this ruling to affect you. The court’s reasoning naturally extends to civil litigation discovery, including family law proceedings.
In North Carolina, divorce, custody, and equitable distribution cases involve the exchange of sensitive information during discovery, and both parties have an obligation to produce relevant, non-privileged materials.
Under the court’s framework, every AI chat about a legal issue that happens outside the attorney-client relationship is a potential exhibit waiting to be produced.
If you paste confidential communications, financial records, legal strategy discussions, or case details into a public AI tool, that information could end up as evidence in your spouse’s hands or before a judge.
Privilege protection is not a permanent label that follows information wherever it goes. The moment privileged content is shared with a public AI tool, that act of sharing constitutes a waiver of privilege, making the information fully discoverable by your opposing party.
It does not matter whether the content is an investigation report, a memo from your attorney, or your lawyer’s negotiation strategy. If it goes into a chatbot whose terms allow the provider to access, train on, or disclose user data, the privilege may already be gone by the time you hit “enter.”
Common Mistakes to Avoid in Family Law Matters
Many clients believe their interactions with AI tools are harmless, but under this ruling, those exchanges could be fair game in litigation. You should never use public AI chatbots to:
- Summarize communications from your attorney
- Brainstorm custody arguments
- Reorganize financial documents related to your case
- Analyze your spouse’s discovery responses
- Prepare draft agreements or provisions of an agreement
- Prepare for depositions or court appearances
“But I pay $25 a month for Claude, so now I’m protected, right?”
Even paying for a premium AI subscription does not automatically fix the confidentiality issue.
The court’s reasoning applies to any AI platform, whether free, paid, or commercially licensed, if its terms of service reserve the right to review, train on, or disclose user data.
Expect AI-Related Discovery Requests
Going forward, expect opposing counsel to ask pointed questions about AI usage in depositions, interrogatories, and discovery requests.
Being asked during a deposition, “Did you use any AI tools to prepare for this deposition or to analyze documents related to this matter?” is no longer hypothetical. It is the natural next step after this ruling.
Receiving a subpoena demanding “all communications with AI-based tools, including prompts, inputs, and outputs” related to your divorce or custody dispute is now a realistic possibility.
Guidelines to Protect Your Case
To preserve the confidentiality of your case and protect attorney-client privilege, we suggest that family law clients follow these guidelines.
- Do not input, paste, upload, or otherwise transmit any legal advice, attorney communications, case documents, financial information, or strategy discussions into any public AI tool. A clear, concrete rule is far more effective than simply trying to “use caution.”
- Adopt a “pause before you paste” approach: before using any chatbot, ask yourself whether what you are about to type or upload is privileged, confidential, or sensitive. If the answer is yes, or even maybe, stop and contact our office first.
- Remember that the court hinted that the outcome might have been different if a lawyer had directed the use of AI. This means that attorney direction is not just a best practice. It may be the key to preserving privilege.
If you believe an AI tool could help you with some aspect of your case, please consult with your attorney before using it so counsel can ensure any such use happens under their direction and within a workflow designed to protect privileged communications.
Conclusion
This ruling did not break new legal ground. It applied longstanding privilege principles to a new technology and reached the conclusion most lawyers would have predicted.
The court confirmed that public AI tools are third parties, that sharing information with them can waive privilege just as easily as forwarding a confidential email to a stranger, and that no amount of after-the-fact attorney involvement can undo the damage.
Your family law case involves deeply personal and sensitive matters. The last thing you want is for private communications about your children, your finances, or your legal strategy to become your spouse’s best evidence.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.
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