A Recent Federal Court Ruling Underscores Critical Risks of Using AI Platforms to Discuss Legal Matters
We are writing to alert you to some recent court decisions that have significant implications for anyone using generative artificial intelligence ("AI") platforms to discuss legal issues related to pending or anticipated litigation. This includes platforms such as ChatGPT, Claude, or similar tools. As explained below, some recent federal court decisions highlight that in certain circumstances, communications with AI platforms will not be protected by the attorney-client privilege or the work product doctrine. This advisory bulletin summarizes the issue and provides guidance on how to preserve these critical legal protections.
The Issue
On February 17, 2026, in case United States v. Bradley Heppner, a federal judge in the Southern District of New York addressed whether communications between a criminal defendant and an AI platform were protected from government inspection. The defendant, Bradley Heppner, was indicted on securities fraud, wire fraud, and related charges. After receiving a grand jury subpoena and becoming aware that he was the target of a criminal investigation, Mr. Heppner used the AI platform "Claude" to prepare reports outlining potential defense strategies and arguments regarding the facts and law he anticipated the government might use against him.
When FBI agents executed a search warrant at Mr. Heppner's home, they seized approximately thirty-one documents memorializing his communications with Claude. Mr. Heppner's attorneys argued that these AI communications should be protected by the attorney-client privilege and the work product doctrine because Mr. Heppner had shared the contents of the AI-generated documents with his lawyers and had created them for the purpose of speaking with counsel. Critically, however, Mr. Heppner's attorneys conceded that they had not directed him to use the AI platform.
The Government moved for a ruling that the AI communications were not protected, and the court agreed.
The court held that the AI communications lacked protection under both the attorney-client privilege and the work product doctrine.
Attorney-Client Privilege. The court found that the AI communications failed to satisfy multiple elements of the privilege. First, Claude is not an attorney, and no attorney-client relationship can exist between a user and an AI platform. As the court explained, recognized privileges require "a trusting human relationship" with "a licensed professional who owes fiduciary duties and is subject to discipline." Second, the communications were not confidential. The AI platform’s privacy policy discloses that it collects users' inputs and outputs, uses such data to train the AI model, and reserves the right to disclose data to third parties, including governmental regulatory authorities. As a result, the court found that Mr. Heppner could have had no "reasonable expectation of confidentiality" in his AI communications. Third, Mr. Heppner did not communicate with Claude for the purpose of obtaining legal advice; indeed, Claude itself disclaims providing legal advice.
The court also emphasized that non-privileged communications cannot be transformed into privileged ones merely by being shared with an attorney afterward. Documents that are not privileged in the client's hands do not "acquire protection merely because they were transferred" to counsel.
Work Product Doctrine. The court similarly rejected the work product claim. Work product protection applies to materials "prepared by or at the behest of counsel in anticipation of litigation or for trial" and is intended to protect lawyers' mental processes. Here, Mr. Heppner prepared the AI communications on his own volition, without direction from his attorneys. Accordingly, the documents did not qualify as work product.
Why It Matters
The attorney-client privilege and the work product doctrine are foundational protections that allow clients and their attorneys to communicate candidly and develop litigation strategies without fear of disclosure to opposing parties or the government.
Attorney-Client Privilege protects confidential communications between a client and their attorney made for the purpose of obtaining or providing legal advice. For this privilege to apply, the communication must be (1) between a client and an attorney, (2) intended to be confidential, and (3) made for the purpose of seeking or providing legal advice. If even one of these elements is missing, the privilege does not apply.
Work Product Doctrine protects materials prepared by an attorney, or by others acting at an attorney's direction, in anticipation of litigation. This doctrine safeguards an attorney's mental impressions, conclusions, opinions, and legal theories. It ensures that the strategic thinking underlying your legal representation remains protected.
These protections are essential to the effective representation of clients. Without them, adversaries could gain access to your confidential communications and your attorney's litigation strategy, undermining your legal position and your ability to receive candid legal advice.
Protect Yourself by Avoiding AI Platforms for Legal Discussions or Document Review
In light of this ruling, we strongly advise all clients to exercise extreme caution when using generative AI platforms. Specifically:
- Do not use AI platforms to discuss ongoing cases or anticipated legal matters. If you are involved in litigation, are the subject of a government investigation, or reasonably anticipate that you may become involved in legal proceedings, do not input information about your case into any AI platform. As the Heppner decision makes clear, these communications are not protected by the attorney-client privilege or the work product doctrine and may be obtained by opposing parties or the government.
- Do not submit draft legal documents prepared by your attorneys into AI platforms. If we have prepared draft contract documents, memoranda, briefs, strategy documents, or other materials for you, uploading these documents to an AI platform could waive the attorney-client privilege and work product protections that would otherwise apply. Once waived, these protections generally cannot be restored.
- Be aware of AI platform privacy policies. Most AI platforms collect and store user inputs and outputs, use that data for training purposes, and reserve the right to disclose information to third parties, including government authorities. These policies mean that anything you submit to an AI platform may not remain confidential.
- When in doubt, consult with us first. If you are unsure whether a particular use of AI technology could jeopardize your legal protections, please contact us before proceeding. We are happy to provide guidance tailored to your specific situation.
We understand that AI tools offer significant convenience and utility in many contexts. However, when it comes to legal matters, the risks of using these platforms without appropriate safeguards are substantial. If you have any questions about this advisory bulletin, or if you are concerned that you may have already used an AI platform in a manner that could affect your legal protections, please do not hesitate to reach out to your attorney at Woods Aitken. We are here to help you navigate these issues and ensure that your rights are fully protected. We also encourage you to subscribe to our E-Briefs for the latest news, tips, and updates.