After a New York court last week ruled orally that AI created documents sent to counsel are not privileged, here’s the written opinion in the case.
In the written opinion by New York District Judge Jed S. Rakoff (hat tip to Tom O’Connor again for giving me the heads up about the written opinion), Judge Rakoff framed the issue as novel but grounded in traditional legal principles. It explained that the case required deciding “whether, when a user communicates with a publicly available AI platform in connection with a pending criminal investigation, are the AI user’s communications protected by attorney-client privilege or the work product doctrine?” Judge Rakoff answered plainly: “the answer is no.”
Attorney-Client Privilege Analysis
Judge Rakoff first examined whether the communications satisfied the elements of attorney-client privilege. It emphasized that privilege applies only to confidential communications between a client and an attorney for the purpose of obtaining legal advice. Applying those principles, Judge Rakoff found that the AI documents “lack at least two, if not all three, elements of the attorney-client privilege”, as follows:
- No Attorney-Client Relationship: The most fundamental problem, according to Judge Rakoff, was that the AI system was not an attorney. Judge Rakoff stated unequivocally: “Heppner does not, and indeed could not, maintain that Claude is an attorney.” Because there was no attorney-client relationship, communications with the AI platform could not be privileged. Judge Rakoff also rejected arguments that AI should be treated like software tools, explaining that recognized privileges depend on “a trusting human relationship…with a licensed professional who owes fiduciary duties.”
- Lack of Confidentiality: Judge Rakoff next held that the communications were not confidential. The AI provider’s privacy policy disclosed that user inputs could be collected, used for training, and shared with third parties, including government authorities. As a result, Judge Rakoff concluded the defendant could not reasonably expect privacy: He “could have had no ‘reasonable expectation of confidentiality in his communications’ with Claude.” Judge Rakoff stressed that sharing information with an AI platform is effectively sharing it with a third party, which destroys privilege just as disclosure to any other outsider would.
- Not for the Purpose of Obtaining Legal Advice: Judge Rakoff also found the communications were not made to obtain legal advice. Although the defendant later shared them with counsel, he initiated the AI exchanges on his own and not at counsel’s direction. Judge Rakoff explained that what matters is whether the user intended to obtain advice from the AI itself—and the AI explicitly disclaimed providing legal advice.
- Later Sharing with Counsel Does Not Create Privilege: Judge Rakoff emphasized that non-privileged communications do not become privileged simply by being given to a lawyer: “it is black-letter law that non-privileged communications are not somehow alchemically changed into privileged ones upon being shared with counsel.”
Work Product Doctrine Analysis
Judge Rakoff also rejected the work product claim. It explained that the doctrine protects materials prepared by or at the direction of counsel and designed to reflect counsel’s mental impressions.
Here, the AI documents failed those requirements. They were created by the defendant alone and not at counsel’s behest. Judge Rakoff noted:
The documents “were prepared by the defendant on his own volition.”
Additionally, they did not reflect counsel’s strategy at the time they were created. Because the purpose of the doctrine is to protect lawyers’ thought processes, Judge Rakoff found no basis to apply it.
Broader Significance
In its concluding remarks, Judge Rakoff acknowledged the novelty of AI but emphasized that traditional legal doctrines still apply: “AI’s novelty does not mean that its use is not subject to longstanding legal principles.”
Because the defendant’s use of AI did not satisfy those principles, Judge Rakoff ruled that the documents were not protected and could be inspected by the Government.
As I observed last week, the government made enough arguments that had nothing to do with the fact that these were AI created documents sent to counsel that the ruling might have been the same if they weren’t. The written opinion doesn’t change that. Regardless, it will be interesting to see if other courts find that AI created documents sent to counsel violates privilege, especially if other circumstances (such as counsel possibly directing their client to create them) are different.
So, what do you think? Should using AI to create documents waive privilege? Please share any comments you might have or if you’d like to know more about a particular topic.
Happy Birthday to my wonderful wife Paige! I love you, honey! ❤️
Image created using Microsoft Designer, using the term “a soup server with dark hair and a dark mustache refusing to sell soup to a well dressed robot lawyer with a sign behind the server reading ‘No Privilege for You’”.
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