AI Legal Research is NOT Privileged
In a first of its kind decision, a federal trial court in New York city has held that legal research performed on an AI platform by a non-attorney is NOT privileged. Attorney client privilege applies only to communications and advice by licensed attorneys. Work product privilege only applies to work performed by attorneys and their agents. That means that opposing counsel can obtain all such research, either from the client directly or by a subpoena to the AI platform. So hiding or destroying the client’s copies will not protect it.
Some AI companies allow you to delete all documents you upload for AI to read and to delete your questions and answers, but only if you are paying for use of its AI platform. The free platforms are getting compensating value by using your questions and your reactions to their responses, to further train the platform. That is why they charge for the option to delete your research.
The judge in the New York case asked the question whether the result might be different if the attorney had asked Mr. Heppner to do the research. Review of confidential documents, summaries of such documents and legal research, performed by paraglegals and other non-attorney employees and agents of an attorney or law firm, are protected by either attorney client privilege or attorney work product confidentiality. If an attorney asked his client to perform legal research, would the client then be acting as the attorney’s agent, just like the attorney’s non-attorney staff? Would that be enough to keep the client’s findings secret and protected? This question is not answered.
We have started to receive from clients legal contracts, leases, and legal research and briefs, prepared by AI platforms. In the event of litigation, civil or criminal, all such documents can be obtained by the opposing side.
Legal research, by attorneys, regarding legal theories and law are covered by attorney work product confidentiality as the lawyers thought process and highly protected. Attorney fact-work-product, by attorneys, including collecting documents and information and conducting witness interviews constitute attorney work product, but are less closely protected. If the other side needs them and cannot obtain them on their own, then they can be subject to disclosure. If a motion to compel their disclosure is made, it could be granted.
If you do AI research, and you do not want to show it to the other side, then delete it. Make sure that your AI account includes the right to delete it and to prevent the platform from saving it to train its algorithms. Just handing it over to your lawyer is not going to protect it. If you find a case or statute which you think will help your lawyer, send her just that, without commentary.
This is a new area of the law. The decision is only a trial court ruling. Appellate decisions control. California tends to be more protective than federal courts. This rule and advice are subject to change.