Preserving Privilege When Using AI

Last week, John wrote about a groundbreaking case out of New York. In it, a judge ruled that AI-generated documents shared between a defendant and his lawyer were not subject to attorney-client privilege. Does this mean that any AI use in legal work voids privilege? Not necessarily. A recent McDermott memo discusses the nuances of the opinion and shares the following advice for lawyers working with AI:

“The work-product analysis highlights the importance of counsel direction. If AI tools are used in connection with litigation or investigations, documenting that such use is at the direction of counsel and within a controlled workflow may be critical. For example, if counsel invites a client into counsel’s enterprise version of an AI tool (in the same way users can be invited into a Microsoft SharePoint instance or invited to collaborate on a OneDrive file) behind counsel’s firewall, where there is an expectation of confidentiality and training can be turned off in the AI tool, a court may view the traditional privilege arguments very differently.”

Ultimately, preserving privilege may boil down to the finer details. Ensuring that AI tools operate in a closed environment, don’t retain data for training, and don’t share data with third parties is a good starting point for creating an expectation of confidentiality. However, until more courts issue rulings on the matter, AI use is risky. Lawyers would be wise to take caution when using AI in conjunction with any sensitive or privileged information.