ChatGPT Is Not Your Lawyer’s Associate

A defendant in a New York federal securities fraud case used a generative AI tool to draft his defense strategy and then sent it to his lawyers. When prosecutors sought the AI created document in discovery, the defendant claimed it was protected by attorney-client privilege and the work product doctrine.

The court disagreed and ordered the AI created document produced.

The judge reasoned that typing sensitive legal information into a commercial AI platform is like sharing it with a stranger- there’s no reasonable expectation of privacy or an attorney client confidentiality. Particularly on free platforms, data and information submitted to AI tools aren’t sealed in a vault. Without first confirming that your attorney has requested assistance when creating any materials to help defend a case, there’s likely never an attorney-client privilege.

The second level of protection, “work product,” also failed. The work product doctrine protects a lawyer’s strategy and mental impressions.

A client independently asking an AI program for help does not create work product. In this case, because neither the defendant nor the AI was acting as the client’s lawyer, and his attorneys hadn’t directed the defendant to create the summary, the document wasn’t protected.

The Takeaway: If you’re using AI in connection with your legal defense, proceed carefully. Involve your lawyer before doing any work, including using AI and ensure privilege protections are properly handled. Otherwise, your AI-generated strategy won’t be protected, and you may have to give it to a plaintiff’s attorney.

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