AI tools, confidentiality and legal privilege: what clients need to know

Legal professional privilege protects confidential communications between a client and their lawyers for the purpose of giving or receiving legal advice or conducting litigation. If confidentiality is lost, privilege is lost with it.

Clients are responsible for preserving privilege in their own communications. This includes how they handle legal advice and documents, whether in a dispute or in the course of general commercial work.

Even in non-contentious matters (such as M&A, real estate transactions or commercial contracts), documents and advice may later become relevant in a dispute. If those materials have been shared with a public AI tool, privilege may already have been lost before the dispute arises.

Judicial guidance in this area is developing rapidly, but the direction of travel is clear.

In a recent decision, the Judge said: “Uploading confidential documents into an open-source AI tool, such as ChatGPT, is to place this information on the internet in the public domain, and thus to breach client confidentiality and waive legal privilege”.

In a US case, the Court reached a similar conclusion and, whilst not binding in the UK, it highlights the issues arising and the wider approach being taken. In this case, a client used a public AI chatbot (Claude) to analyse advice he had received from his lawyers, explore his legal exposure and defence strategy, and generate documents relating to his case. He later shared those AI generated documents with his lawyers. The Court held that:

• inputting privileged advice into public AI tools can waive privilege
• sharing non-privileged AI-generated documents with your lawyer does not make those documents privileged
• using an AI tool does not amount to legal advice – these public tools expressly disclaim that purpose and recommend consulting a lawyer

The same risks apply to AI-powered meeting tools, including notetakers, transcription services and meeting assistants. Many of these tools process and store meeting data in ways that may not preserve confidentiality.

If privilege is to be maintained, care must be taken before allowing any such tool to access meetings where legal advice is discussed or sensitive documents are reviewed.

• Do not upload legal advice, communications, draft documents, transaction materials or dispute-related information into public AI tools. Even where the information is anonymised, the risks remain.
• Do not use AI notetakers, transcription services or meeting assistants in legal discussions without checking how those tools handle data.
• Always speak to your legal advisers before using AI tools in connection with legal matters.