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Several recent court decisions have addressed the use of artificial intelligence (AI) chatbots (e.g., ChatGPT, Claude, Copilot) in connection with legal matters. At least one court has found that a person’s communications with AI chatbots are not confidential. This creates a risk of waiving attorney-client privilege and work product protection as to those communications. If you are already engaged in litigation or a lawsuit were to arise, you could be required to provide the opposing side with copies of your communications with these AI chatbots. This could include any information you provided, any questions you asked or any documents that you uploaded to the AI chatbots.
If you are using an AI chatbot, we recommend taking the following steps to protect confidentiality and privilege:
- Do not use AI chatbots to prepare summaries or analyses of your dispute.
- Do not upload or otherwise share attorney communications with AI chatbots.
- Do not upload or otherwise share drafts of pleadings, investigation notes, strategy documents, or any other confidential legal documents with AI chatbots.
- Do not upload or otherwise share with AI chatbots the legal advice that is provided to you.
- Consult your attorney before using any AI tool in connection with legal matters. There are steps that you can take to help avoid waiver of privilege when using AI chatbots in connection with legal matters. These steps include (1) purchasing a business or enterprise subscription that has improved confidentiality protections and (2) involving counsel in your use of an AI chatbot.
Even well-intentioned use of AI can create unintended disclosure risks.
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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