Table of Contents
- The New Risk: How AI Can Waive Your Privilege
- The Heppner Ruling: A Warning for Clients
- What This Means for Plaintiffs
- How to Protect Your Attorney-Client Privilege
- Contact an Employment Lawyer
Attorney-client privilege is one of the most important protections you have as a plaintiff. It allows you to speak openly with your lawyer, share sensitive information, and seek legal advice without fear that those communications will later be exposed. As artificial intelligence becomes more common in everyday life, that protection is facing new and serious challenges.
When confidential information is entered into third-party AI platforms, questions arise about whether that information remains protected. A recent federal court ruling has provided a stark warning: using public AI tools to discuss your case can destroy your attorney-client privilege.
The New Risk: How AI Can Waive Your Privilege
Privilege depends on confidentiality. When you share privileged information with a third party, you risk waiving that privilege. Courts are now beginning to address whether using a public AI tool counts as sharing information with a third party.
An increasing concern in litigation is clients themselves using AI tools when communicating with their attorneys. You might be tempted to copy drafts of emails, timelines, or case summaries into an AI program to improve clarity or organization before sending them to your lawyer. Although this may seem harmless, it can create a major legal risk. Sharing case facts, legal questions, or strategy with an AI platform may be treated as a disclosure to a third party, potentially waiving privilege before the information ever reaches your attorney.
The Heppner Ruling: A Warning for Clients
In February 2026, a federal judge in New York issued a landmark decision in the case of U.S. v. Heppner. The court ruled that legal strategy materials a criminal defendant generated using a public AI tool were not protected by attorney-client privilege.
The court’s reasoning was clear:
- Not a Communication with Counsel: The AI tool was not an attorney, and the client was using it on his own, not at the direction of his lawyer.
- Not Confidential: The client used a public version of an AI platform whose privacy policy did not guarantee confidentiality. The company stated it could use the data for training and even disclose it to third parties.
The court held that even if the information the client inputted into the AI platform was privileged, any such privilege was waived by sharing the information with the platform.
This ruling sends a clear message: using a public AI tool to analyze or discuss your case is legally equivalent to discussing it in a public forum. You cannot assume your communications with an AI are private.
What This Means for Plaintiffs
For plaintiffs in employment law cases, the stakes are incredibly high. Your communications with your attorney about discrimination, retaliation, or wrongful termination are the foundation of your case. If you waive privilege by using an AI tool, the other side may be able to access:
•Your private thoughts about the case
•Drafts of communications with your lawyer
•Your legal strategy
•Information you never intended to share
Losing privilege can severely damage your case and undermine the trust between you and your attorney.
How to Protect Your Attorney-Client Privilege
As a client, you have a responsibility to take reasonable steps to keep your communications with your lawyer confidential. In the age of AI, this means:
- Do Not Use Public AI Tools for Your Case: Never paste case-related information, questions for your lawyer, or summaries of events into public AI platforms like ChatGPT, Gemini, or others.
- Communicate Directly with Your Lawyer: Use the secure channels your attorney has established for communication, such as a secure client portal, encrypted email, or phone calls.
- Assume AI is Not Private: Treat all public AI tools as if they are a third person in the room. If you wouldn’t say it out loud in a coffee shop, don’t type it into an AI.
Contact an Employment Lawyer
Navigating a legal case is complex, and new technologies are creating new risks. If you are involved in an employment dispute, it is more important than ever to work closely with an experienced attorney who understands these challenges. If you have questions about your rights or need to discuss a potential case, contact our office for a confidential consultation.
Contact us today to tell us about your case.
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