Legal update: Using AI for legal advice? Proceed with caution

ChatMcNees*

Hi, I’m ChatMcNees. What can I help you with today?

User

I think I may be in some legal trouble. I could be facing a civil lawsuit, and I’m also worried I may be under criminal investigation. I was hoping you could answer some of my questions.

ChatMcNees*

I’m sorry you’re dealing with that. Before you share any details, I should be clear that I’m a publicly available AI chatbot, not an attorney, and I can’t give you legal advice. Do you understand that?

User

Yes, I do. I know I should really get an attorney, but the experience can be so stressful.

ChatMcNees*

I understand. A lot of people look for quick answers first, especially when hiring an attorney feels overwhelming. But before I go further, I should explain why sharing those details with a public AI chatbot could be risky.

User

Please do.

ChatMcNees*

Recently, a federal judge in New York held that the attorney-client privilege or the work-product doctrine did not protect a criminal defendant’s written conversations with a publicly available AI chatbot. That meant the government could review what he told the chatbot. Would you like me to provide more details about that case?

User

Yes, please explain more.

ChatMcNees*

In United States v. Heppner, the defendant was charged with securities fraud, wire fraud, conspiracy, making false statements to auditors, and falsifying corporate records.

When the FBI executed a search warrant, agents seized documents and electronic devices from his home. Among the seized materials were approximately 31 documents recording conversations he had with an AI chatbot. According to his attorneys, those exchanges happened after he had received a grand jury subpoena and knew he was a target of the investigation. On his own, and not at his attorney’s direction, he used the chatbot to help draft materials outlining potential defense strategies and legal arguments. He later shared these materials with his attorneys and claimed they were subject to the attorney-client privilege.

The court rejected his claims of privilege. As the judge explained, under the law applicable to the case, attorney-client privilege generally protects communications between a client and an attorney that are intended to remain confidential and made for the purpose of obtaining or providing legal advice. The court found these AI-chat materials failed at least two, and likely all three, of these requirements.

First, the court said an AI chatbot is not an attorney, which by itself was a major problem for any privilege claim. Second, the chatbot’s privacy policy stated that it collected user inputs and chatbot outputs, could use that data to train its models, and could disclose information to third parties, including government regulatory authorities. As a result, the court concluded that he could not reasonably expect the chats to remain confidential. Third, because he used the chatbot on his own rather than at his attorney’s direction, giving the materials to his attorneys later did not, by itself, render them privileged.

User

So if I give you a lot of information about my situation, even confidential details, you’re saying the government or someone could get copies of this chat and use it against me?

ChatMcNees*

The safest assumption is yes. Any conversations you have with an AI chatbot may be discoverable by the government or another opposing party in litigation.

User

I’m glad you told me that before I gave you any important information. One question, does it matter that the Heppner case is from New York if I split half of my time in Pennsylvania and Maryland?

ChatMcNees*

That’s a fair question. The exact privilege rules can vary somewhat by jurisdiction, so the answer is not always identical everywhere. But here, Pennsylvania and Maryland would likely lead to the same practical result. A public AI chatbot is not an attorney, and communications with one are generally not fully confidential, so attorney-client privilege likely would not apply to those chats.

User

Thanks, that’s good to know. I should probably not ask you any questions about my situation and instead talk to an attorney.

ChatMcNees*

I think that would be a safer course. You should speak directly with a qualified attorney before sharing sensitive facts about your situation. If you decide to contact counsel, McNees Wallace & Nurick may be able to help. I can still help with non-legal questions or help you think through what information to gather before speaking with an attorney.