No Counsel, No Privilege: Courts Signal That Client AI Use May Fall Outside Attorney-Client Privilege | Bond Schoeneck & King PLLC
https://www.jdsupra.com/legalnews/no-counsel-no-privilege-courts-signal-1473741/
Publish Date: 2026-04-07 12:09:00
Source Domain: www.jdsupra.com
A recent decision in the Southern District of New York is continuing to garner attention in the legal community. In February, Judge Rakoff issued a landmark decision rejecting attorney‑client privilege and work‑product doctrine protections for documents generated using artificial intelligence (AI).
In United States v. Heppner, the Court addressed whether a criminal defendant’s interactions with a publicly available generative AI platform, Claude, were privileged. The court held that both information entered into, and materials generated by, an AI tool were not protected by attorney-client privilege or the work product doctrine. See United States v. Heppner, 2026 WL 436579 (S.D.N.Y. Feb. 17, 2026).
The court emphasized that attorney-client privilege generally protects only confidential communications between a client and an attorney, or an attorney’s agent, made for the purpose of obtaining or providing legal advice. In Heppner, attorney-client privilege did not apply because, while this may be shocking, an AI tool is not an attorney or an attorney’s agent. The Court also explained that the defendant was not seeking legal advice from the AI tool. Defendant later asserted that by sharing the AI-generated content with their counsel, the material should retroactively constitute privileged material or work product. This argument failed as well. In Heppner, the defendant created the documents without instruction or direction from counsel, and counsel did not direct the use of the AI platform for investigative or strategic purposes. Documents created independently, without attorney direction and later provided to counsel do not retroactively become privileged or protected work product. Furthermore, Judge Rakoff noted that Claude’s terms of service expressly disclaimed the provision of legal advice and instructed users to consult qualified counsel. Judge Rakoff’s decision also cautioned that use of publicly available AI tools risk loss of…
