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Lawyers can learn some lessons from a recent decision about protecting privilege when using AI.
Artificial intelligence tools are rapidly integrating into the legal profession, offering new efficiencies but also posing novel challenges regarding traditional legal principles like privilege. This article explores recent developments and offers guidance for lawyers navigating the use of AI.
The core question revolves around whether interactions with AI tools, especially when used for legal research or drafting, fall under the umbrella of attorney-client privilege. This typically requires communications to be between a client and an attorney, made for the purpose of seeking or rendering legal advice, and intended to be confidential. AI tools complicate this as they are neither clients nor attorneys in the traditional sense.
The article highlights a recent judicial decision that provides crucial insights into how courts might treat AI-generated information or communications involving AI. This decision serves as a guide for attorneys on the potential risks of waiving privilege if AI tools are not used carefully and with proper understanding of their data handling.
For privilege to apply, confidentiality is paramount. Lawyers must consider how data input into and generated by AI tools is stored, processed, and accessed. Using AI tools that lack robust data security or may use input data for their own training could inadvertently expose client information, thereby jeopardizing privilege.
Beyond privilege, the use of AI tools also raises significant ethical considerations, including competency, supervision, and confidentiality. The article suggests best practices such as vetting AI tools for security and confidentiality protocols, providing clear instructions to AI, reviewing AI-generated output for accuracy and privilege issues, and informing clients about the use of AI in their matters.