Question: We recently received a discrimination complaint from a former employee who was terminated for sexual harassment. To save time and legal costs, we decided to plug the facts into ChatGPT to review our legal exposure and determine how to respond. Does this pose any issues in the event of a lawsuit?
Answer: Likely, yes. A federal judge in New York recently ruled that conversations with public artificial intelligence (AI) platforms aren’t protected by the attorney-client privilege and can be discoverable in litigation. A financial services executive was charged with securities fraud and wire fraud. He used a popular AI tool, Anthropic’s Claude, to research legal questions and generate documents which he provided to his attorneys. The FBI seized the AI-generated documents during a search, and his attorneys then asserted the attorney-client privilege and work-product protection (United States v. Bradley Heppner, SD NY, Feb. 2026).
The court ruled that the privileges were not applicable. The court stated that the attorney-client privilege requires three elements: (1) communication between an attorney and their client; (2) expectation of confidentiality; and (3) the purpose of getting legal advice. Here, there was no attorney involved in the executive’s searches; also, AI platforms aren’t licensed lawyers. There was no expectation of privacy due to Anthropic’s privacy policy that stated it may share data with third parties. Finally, the executive’s legal counsel never told him to use Claude, nor did the searches reflect his lawyer’s actual strategy.
This case has widespread implications for employers who use AI tools. With the ever-changing AI landscape, you should be careful with the information that is submitted into AI systems. Here are some practical takeaways:
- Contact counsel: Contact your Vigilant Law Group employment attorney or other legal counsel before using AI tools to research legal issues or organize relevant information.
- Treat communications as discoverable: AI tools can provide broad information, but the legal risks may increase when used to discuss, summarize, or research the specific facts of your legal matter. You should assume that all communications are not confidential or privileged and can be subject to discovery in litigation.
- Review the fine print: You also should review the AI platform’s terms of service to fully understand what you agree to when you use AI tools.
Even if you ultimately decide to submit questions to an AI platform, you should omit the name of your organization, the names of employees, and any other personally identifiable information. This applies not only to your queries, but also to documents you upload such as company policies. Keeping such identifying information confidential won’t protect you from disclosure of your searches in litigation, but it will minimize the likelihood that your situation could be discovered by other users of the AI platform.
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