A New York federal court just issued the first ruling tackling whether conversations with a public AI chatbot can be protected by attorney–client privilege or the work product doctrine. The short answer: they can’t.
Bottom line: If you paste legal advice, investigation materials, or other sensitive information into one of these tools, you could be handing that information to your adversaries on a silver platter.
Privileged No More
In a recent New York federal court case, the target of a federal investigation used a public AI platform to create strategy-focused “reports” about the facts and law of his case. Federal agents later seized electronic devices containing those AI exchanges during a search.
The defendant claimed privilege and work product protection, arguing that because he eventually shared the AI outputs with his lawyers (and had fed in information he’d gotten from his lawyers), the materials should be shielded. The court ruled against the defendant, for three straightforward reasons:
AI isn’t your lawyer. There was no attorney–client relationship between the defendant and the AI platform. Privilege protects confidential communications with your attorney. Chatbots don’t qualify.
There was no real expectation of confidentiality. 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. Under those conditions, nobody can reasonably claim they expected the conversation to stay private.
The chats weren’t about getting legal advice from counsel. The defendant initiated these conversations on his own. The AI tool itself disclaimed giving legal advice. That’s a far cry from the kind of attorney-directed communication privilege is designed to protect.
The court also shut down the work product argument. Work product protection is meant to shield a lawyer’s thinking and strategy. These documents were created by the client, on his own, using a public tool, not prepared by or at the direction of counsel.
The court went on to make clear that even information that starts out privileged loses its protection once it is pasted into a public chatbot.
What Does This Mean for Your Personal Injury Matter?
While the New York ruling stemmed from a criminal matter, its impact extends to other legal fields—like car- and truck-collisions, medical malpractice, and other general negligence cases.
Plugging in the facts of your case to determine the monetary settlement value, inserting your medical records to find the “smoking gun” provider actions below the standard of care, or even asking AI the best strategy on how to “win” your case represent a few of a myriad of examples which can expose you and your attorney’s private conversations to the opposition.
When Does Attorney-Client Privilege Apply?
In order for attorney-client privilege to attach, there must be an actual attorney-client relationship. The communication must also be made for the purpose of obtaining legal advice, and the parties must maintain a reasonable expectation of confidentiality for attorney-client privilege to apply.
So, when you type a legal question into a public chatbot or Generative AI tool, even if you (1) plan to later retain an attorney or (2) plan to give those materials to your current attorney, there is no attorney-client privilege.
Under the court’s framework in the New York ruling, every AI chat about a legal issue that happens outside the attorney-client relationship is potential ammunition to be used by the opposition.
People are having conversations with chatbots every day. None of these conversations involve an attorney, none carry a reasonable expectation of confidentiality, and under the court’s reasoning, all of them could end up as exhibits in a lawsuit or at trial.
Attorney-Client Privilege is Not Permanent
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 that sharing constitutes a waiver of privilege, making the information fully discoverable by adversaries, insurance carriers, and opposing parties.
The court’s waiver analysis leads to a frightening conclusion: any person who copies privileged material into a public AI tool, whether to summarize, brainstorm, or reorganize, is stripping that material of its protection in real time.
Free or Paid – the Attorney-Client Privilege Problem is the Same
In this case, the court zeroed in on the AI provider’s specific privacy policy, which allowed it to collect user inputs and outputs and use that data to train its models and disclose it to third parties. The court’s reasoning isn’t limited to free or paid-access tools.
Following its logic, any AI platform, whether free, paid, or commercially licensed, could present the same problem if its terms of service reserve the right to review, train on, or disclose user data. That means paying for a premium subscription or even a corporate license doesn’t automatically fix the confidentiality issue.
Growing AI Litigation Risks
The court’s ruling does not give leeway to individuals who use public AI tools and believe that the interaction is privileged, or intend to use it for the purposes of their lawsuit. Point-blank, 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 the user hits ‘enter.’ Once your lawsuit is filed, expect to be asked by the opposition to provide “all communications with AI-based tools, including prompts, inputs, and outputs related to [your lawsuit, the car wreck, your medical care, etc.].” The value of your case could be detrimentally affected by seemingly inconsequential use of AI tools.
Three Ways You Can Preserve Attorney-Client Privilege For Your Personal Injury Matter
1. Ask Your Attorney Before Using AI for Your Case. In an age where the world is at your fingertips, asking an AI chatbot what the value of your case is, whether similar cases yield successful results, or even asking AI for arguments to support your personal injury case seems harmless—however, these prompts open the door for bad actors and insurance carriers to access your legal strategies. When in doubt, ask your attorney. Lots of topics may seem “safe” enough to ask an AI chatbot, but it is always better to discuss your legal questions and strategies with your attorney. If you don’t understand a legal document in your case, don’t plug that information into an AI tool—schedule a phone call with your attorney to discuss what it means—that’s what they’re for!
2. Don’t Use AI to Draft Written Correspondence to Your Legal Team. It’s becoming more and more common for people to use AI to draft their emails and text messages. If you use AI to draft a written communication to your paralegal or attorney, you have lost privilege even before you’ve hit ‘send.’ If written communications are not your preferred method of communication, let your attorney know you prefer to communicate via phone or videoconference to avoid any privilege issues.
3. Warn Family and Friends Against AI Usage Regarding Your Case. Undoubtedly, when you are injured, certain family members and friends are aware of the circumstances giving rise to your injuries. Because of this, they may think it harmless to use an AI chatbot to give you advice about your case or to soothe their own worries about your situation. Just as using AI tools may waive privilege for you as the client, it applies in the same way to your loved ones’ communications about your case. Informing those closest to you to avoid using AI tools in connection with your case will guard against any surprises in your lawsuit that may negatively impact the outcome.
Conclusion
This ruling didn’t break new legal ground; it applied longstanding attorney-client privilege principles to a new technology and reached the conclusion most lawyers would have predicted. But that’s exactly what makes it so important. 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.
Until more courts weigh in, the playbook is clear: avoid using AI tools to evaluate case documents or facts, put your lawyer’s expertise first, and where possible, use AI only at your attorney’s direction. Doing so may just be the deciding factor in obtaining a favorable resolution in your case and blocking the other side from obtaining your strategies for success.
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