Recently, the United States District Court for the Southern District of New York ruled that documents created using an AI platform are not protected by attorney-client privilege or the work product doctrine. See U.S. v. Heppner, 820 F. Supp. 3d 292 (S.D.N.Y. 2026).
The attorney-client privilege prevents the disclosure of communications between a client and their attorney for the purpose of obtaining or providing legal advice, so long as they are intended to be and are in fact kept confidential. The work product doctrine protects from disclosure materials prepared by or at the direction of counsel in anticipation of litigation, provided they reflect the attorney’s mental processes or strategy.
In the referenced case, a defendant argued that certain documents were protected by the attorney-client privilege and the work product doctrine because the information he supplied to an AI platform was obtained from his legal counsel, he created AI documents in order to speak with said attorney to obtain legal advice, and he later shared the AI-generated documents with that counsel.
The Court ruled that:
- AI platforms are not attorneys, so whatever is shared on them is not protected by attorney-client
privilege. - All recognized privileges require a trusting human relationship.
- Insofar as AI platforms collect data on users’ inputs and their own outputs and/or reserve the right to disclose that data to third parties, AI-generated documents are not confidential.
- If a party inputs information protected by attorney-client privilege into a publicly available AI platform, it waives that privilege.
- AI documents that are not created by or at the direction of legal counsel are not protected by the work product doctrine, even if they affected the attorney’s strategy going forward.
Clients should exercise caution when using AI platforms, especially if their terms of service permit the retention or disclosure of user inputs and/or platform outputs. The content generated through such platforms is not protected by the attorney-client privilege, is unlikely to be protected by the work product doctrine and may be incompatible with clients’ own confidentiality obligations. Therefore, the use of such tools may undermine clients’ legal defense.