CLIENT ALERT: Your AI Conversations May Not be Privileged

A federal court in the Southern District of New York just ruled that some conversations with AI chatbots are not protected by attorney-client privilege, even if you later share the output with your lawyer. For this reason, we are now recommending that our clients avoid using AI chatbots to perform their own legal work or analysis without consultation with their attorney. We are piloting shared AI workspaces that solve for issue, please reach out to us if you would like to participate in the pilot, or have any other questions.

What Happened

On February 10, 2026, Judge Jed S. Rakoff of the Southern District of New York ruled in United States v. Heppner that 31 documents the criminal defendant created using Anthropic's Claude AI platform were not privileged and should be disclosed to the government, despite the defendant later sharing those documents with his defense attorneys. The court found that because the defendant voluntarily used the AI chatbot without instruction from his counsel, his prompts with a third-party platform were neither attorney-client privileged, nor subject to work product protections. In the Court’s analysis, the court considered that Claude’s consumer terms disclaimed an attorney-client relationship and reserved the right to share conversations with their government. The fact that the defendant later sent the documents to his counsel after the fact did not retroactively preserve protection. A link to the Court’s Order is here.

In another civil case, Warner v. Gilbarco (E.D. Mich., Feb. 10, 2026), a court allowed protection of AI conversations. The magistrate judge held the AI materials were “not relevant, or, even if marginally relevant, not proportional” under Rule 26(b)(1). Under the civil context, work product waiver requires disclosure to an adversary, not just any third party. View the Court's Order here.

Reading these two cases together, we are seeing an emerging trend around discovery of AI chat in the litigation context. Attorney-client privilege can be destroyed by voluntary disclosure to any third party. And the work product doctrine can be destroyed by disclosure to an adversary or in a way likely to reach one. This means it’s entirely possible to inadvertently lose privilege on your AI conversations.

Given the uncertainty around this area of law, in order to protect attorney-client privilege and work product, we recommending that our clients not use AI chat for their legal conversations absent instruction from their legal counsel. We believe that there are appropriate and defensible ways to use AI while maintaining privilege, and would recommend that our clients work with us to implement such safeguards.

Why This Matters for You

The use of consumer AI platforms (or even enterprise AI platforms) to discuss legal strategy, evaluate liability, or analyze business decisions may generate discoverable records, records you never intended anyone outside your organization to see, which may need to be disclosed to an adversary in potential litigation. For this reason, we recommend implementing policies and safeguards around your use of AI, especially in the business context.

What You Should Do Now

We recommend that all businesses implement AI policies and procedures, including those that would advise employees on proper use of AI, and recommendations around usage consistent with privilege and discovery concerns.

If you want to use AI to assist with legal matters while maintaining privilege, talk to your FRB attorney about doing so within an environment under counsel’s direction. Our firm is piloting secure, collaborative AI workspaces designed to operate within the attorney-client relationship. We would be glad to discuss these options with you.

If you have questions about using AI platforms without risking privilege, please contact your attorney at Falcon Rappaport & Berkman or reach out to info@frblaw.com.

This alert is for informational purposes only and does not constitute legal advice. It does not create an attorney–client relationship, and you should consult qualified counsel regarding your specific circumstances.