Questions you ask AI about a legal case aren’t protected by attorney-client confidentiality, a federal court has ruled.<\/p>\n
Getty<\/p>\n
Anthropic\u2019s Claude, OpenAI\u2019s ChatGPT and Alphabet\u2019s Gemini may be great for helping with research or creating spreadsheets, but one thing they decidedly are not is your attorney. If anything, turning to artificial intelligence for legal advice can wind up backfiring, as it did for a white collar criminal defendant in New York who tried to shield from federal prosecutors his communications with Claude\u2013the ones where he asked it for a legal defense strategy.<\/p>\n
It seems obvious that you shouldn\u2019t rely on artificial intelligence for legal advice, particularly if something important, like your freedom or a lot of money, is at stake. What\u2019s new is that even discussing legal matters with your favorite chatbot could be risky.<\/p>\n
In February, U.S. District Court Judge Jed S. Rakoff of the Southern District of New York ruled that AI\u2019s large language models are not attorneys, and any communications with them can be used against criminal defendants just like any other non-privileged documents. The judge noted in his decision that his ruling \u201cappears to answer a question of first impression nationwide\u201d\u2014meaning no other courts in the U.S. have ruled on this issue. His conclusion on privilege would presumably apply to civil litigation too. <\/p>\n
The privilege question arose in a criminal securities fraud case against Texas businessman Bradley Heppner, the former chairman and CEO of publicly-traded GWG Holdings, who was charged with defrauding investors out of more than $150 million. Heppner, 60, was convicted<\/a> by a jury this month and is awaiting sentencing. He faces a maximum of 20 years in jail.<\/p>\n According to court records, after Heppner learned last year that he was being targeted by federal investigators, he began asking Claude to outline a \u201cdefense strategy\u201d he might be able to use in court against criminal charges.<\/p>\n When FBI agents later raided his home and seized a number of electronic devices, they came across 31 saved copies of documents and conversations that Heppner had had with Claude about his criminal case. After Heppner\u2019s lawyers asserted that those documents were privileged, since he\u2019d had those conversations in preparation for talking to his lawyers, the government segregated them. It then asked Rakoff to rule on whether they were in fact protected from the government\u2019s inspection under either the attorney-client privilege or the work product doctrine.<\/p>\n On Feb. 17, Rakoff ruled they were not. In his 12-page order, Rakoff backed up his finding with a number of legal arguments.<\/p>\n First and foremost, Rakoff pointed out, \u201cBecause Claude is not an attorney \u2026 that alone disposes of Heppner\u2019s claims of privilege.\u201d<\/p>\n Not only that, Rakoff wrote, but he noted that any criminal defendant confidentiality \u2013 such as with attorneys \u2013 requires a \u201ctrusting human relationship.\u201d<\/p>\n \u201cNo such relationship exists, or could exist, between an AI user and a platform such as Claude,\u201d Rakoff wrote.<\/p>\n The judge went on to point out that Claude\u2019s parent company, Anthropic, specifically notes in the Claude terms of use \u2013 which Heppner agreed to \u2013 that it retains the right to all \u201cdata,\u201d including user conversations with Claude, which can then be turned over to authorities \u201cin connection with claims, disputes or litigation.\u201d<\/p>\n Rakoff went on to observe that the only possible way Heppner\u2019s communications with Claude might have been kept confidential is if his attorney specifically directed him to ask Claude for legal advice, and in that case it might be argued that Claude was acting as a lawyer\u2019s agent. But in this instance, Heppner did so on his own initiative, and his attorney only learned about his AI conversations after the fact.<\/p>\n Moreover, when prosecutors asked Claude during the case if it could provide legal advice to users like Heppner, it responded, \u201cI\u2019m not a lawyer and can\u2019t provide formal legal advice.\u201d It then recommended contacting a licensed attorney.<\/p>\n The ruling provides a \u201cstark warning\u201d to business owners who may have already made use of AI large language models for various legal strategies, New York attorney David Feldman opined on his firm\u2019s website<\/a>. \u201cThe decision draws a clear distinction between human legal counsel and digital assistants,\u201d he wrote, noting that the primary takeaway is that Heppner\u2019s use of Claude could now be weaponized against him by federal prosecutors. \u201cLawyers should consider warning their clients that the use of open AI (systems) may not be considered confidential communication,\u201d Feldman wrote.<\/p>\n Feldman said in a follow up email to Forbes that he believes this is a growing problem among C-suite executives who think AI will or can replace expensive attorneys. \u201cI tend to spend too much of my time cleaning up messes created by this type of action,\u201d he wrote. \u201cWith the advent of AI, clients are even more emboldened to try to handle things without our advice.\u201d<\/p>\n Alan Pentz, a small business consultant who\u2019s been focused on AI development in recent years, said the news was unsurprising, given that legally, chats with AI large language models are \u201call discoverable\u201d in court. In other words, executives should take care not to share sensitive information with large language models such as Claude, ChatGPT, Gemini or others.<\/p>\n \u201cAI is just like Google searches, documents, and email,\u201d Pentz wrote in an email to Forbes. \u201cProceed accordingly.\u201d<\/p>\n The ruling is also emblematic of a new reality for businesses of all sizes, said Samir Black, the founder of Georgia-based tech firms Data Pros Consulting and Forseti Verify.<\/p>\n \u201cIt\u2019s the new angle of attack\u2026 this is very much in line with the new age of investigation,\u201d Black said of memorialized AI conversations such as Heppner\u2019s. \u201cIt\u2019s no longer about the files on your machine. It\u2019s the conversations with AI and chatbots.\u201d<\/p>\n Want to be more successful? Subscribe<\/a> to the weekly Forbes Careers newsletter to get insider tips and insights.<\/p>\n More on Forbes:<\/p>\n ForbesSBA To Double To $10 Million Maximum Loans For Some Small BusinessesBy John Schroyer<\/a>ForbesAI And The End Of Recessions As We Know ThemBy Brandon Kochkodin<\/a>ForbesAnthropic Is Now Worth Almost $1 Trillion\u2014More Than OpenAIBy Antonio Peque\u00f1o IV<\/a><\/p>\n","protected":false},"excerpt":{"rendered":"Questions you ask AI about a legal case aren’t protected by attorney-client confidentiality, a federal court has ruled.…\n","protected":false},"author":2,"featured_media":54424,"comment_status":"","ping_status":"","sticky":false,"template":"","format":"standard","meta":{"footnotes":""},"categories":[7],"tags":[24,53,25,6412,31872,3433,580,182,2408,31871,31870,157],"class_list":["post-54423","post","type-post","status-publish","format-standard","has-post-thumbnail","category-openai","tag-ai","tag-anthropic","tag-artificial-intelligence","tag-attorney-client-privilege","tag-bradley-heppner","tag-chatbot","tag-chatgpt","tag-claude","tag-gemini","tag-judge-jed-rakoff","tag-legal-advice","tag-openai"],"_links":{"self":[{"href":"https:\/\/www.europesays.com\/ai\/wp-json\/wp\/v2\/posts\/54423","targetHints":{"allow":["GET"]}}],"collection":[{"href":"https:\/\/www.europesays.com\/ai\/wp-json\/wp\/v2\/posts"}],"about":[{"href":"https:\/\/www.europesays.com\/ai\/wp-json\/wp\/v2\/types\/post"}],"author":[{"embeddable":true,"href":"https:\/\/www.europesays.com\/ai\/wp-json\/wp\/v2\/users\/2"}],"replies":[{"embeddable":true,"href":"https:\/\/www.europesays.com\/ai\/wp-json\/wp\/v2\/comments?post=54423"}],"version-history":[{"count":0,"href":"https:\/\/www.europesays.com\/ai\/wp-json\/wp\/v2\/posts\/54423\/revisions"}],"wp:featuredmedia":[{"embeddable":true,"href":"https:\/\/www.europesays.com\/ai\/wp-json\/wp\/v2\/media\/54424"}],"wp:attachment":[{"href":"https:\/\/www.europesays.com\/ai\/wp-json\/wp\/v2\/media?parent=54423"}],"wp:term":[{"taxonomy":"category","embeddable":true,"href":"https:\/\/www.europesays.com\/ai\/wp-json\/wp\/v2\/categories?post=54423"},{"taxonomy":"post_tag","embeddable":true,"href":"https:\/\/www.europesays.com\/ai\/wp-json\/wp\/v2\/tags?post=54423"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}