The Risks of Getting Legal Advice from AI
Artificial intelligence is becoming more and more integrated into our everyday lives. From asking for restaurant recommendations to compiling a reading list based on your favorite books, AI often seems like a great place to get some advice. While much has been written about AI hallucinations in law practice (including by us), artificial intelligence poses an additional challenge for businesses looking to streamline their legal work: communications with commercial artificial intelligence may not be privileged.
In United States v. Heppner, Judge Rakoff of the Southern District of New York recently ruled that materials created by a non-lawyer’s interactions with a publicly available large language model were not privileged, even though the user was seeking legal advice. Because the interactions did not constitute “communications” between a client and her lawyer (or the lawyer’s agent), they could not constitute attorney-client communications. Judge Rakoff held that such communications must occur within a “trusting human relationship” with “a licensed professional.” AI is built on an algorithm; it cannot have a fiduciary duty to be your competent and capable advocate.
The Details Matter
The particular context of the case is important and is more limited than “everything you tell AI is discoverable in litigation!” Mr. Heppner was using a commercially available AI platform – the sort which uses your interactions to train itself and may share that information with others. As the terms and conditions of commercial AI platforms indicate, your interactions with the AI are not absolutely confidential. Confidentiality is a critical requirement for maintaining privilege in attorney-client communications. The upshot of this decision is that Heppner cannot claim privilege and avoid production of his interactions with AI in litigation. It’s unclear from the Heppner decision if it would apply equally to the use of enterprise AI platforms, which specifically do not share your information or use it to train their AI models. And what if an attorney encouraged a client to use AI for some purpose to facilitate the attorney-client relationship? The court in Heppner acknowledged these factors could have an impact on the analysis.
No Substitute for Counsel
Nonetheless, communicating with an AI is not the same thing as asking a lawyer for legal advice, whether that AI platform is a commercial one or an enterprise model. If a corporation’s general counsel’s office sets up an AI chatbot to answer typical legal and compliance questions that employees might have, are those conversations between the chatbot and the employee privileged? The Heppner decision doesn’t answer that question. What if the employee thinks they are interacting with a real lawyer in the GC’s office and not a chatbot? Would that internal client’s expectation that the communication constituted an attorney-client privileged discussion matter to the analysis? These questions are also unanswered.
Artificial Intelligence can help you plan your next vacation or explain geometry to your ninth grader, but it does not owe you a fiduciary duty — AI has no skin in the game. It also cannot exercise professional judgment. AI predicts the next word; it doesn’t predict a jury’s reaction. And it cannot maintain a “trusted relationship.”
The more AI becomes integrated into our ordinary and routine workflows, the more sensitive we must be to the fact that no matter how helpful AI becomes, it is not a lawyer and it cannot provide legal advice (as the terms and conditions typically state). Clients may demand that attorneys integrate AI into their work to make the practice of law more efficient and accurate. But that integration must be secure, must protect the client’s information, must ensure the confidentiality of attorney-client communications, and cannot be a substitute for the attorney’s independent and professional judgment.
Conclusion
Trying to replace lawyers with large language models can be costly mistake. Keller Anderle Scolnick’s team of top tier trial lawyers can pair the expertise only years of courtroom experience provide with cutting edge developments in technology to provide you with the best possible counsel and advocacy.
Bring us your toughest case. We’ll get the job done.