The privilege concern has judicial backing. In United States v. Heppner (S.D.N.Y.), a federal court ruled that AI-generated documents created by a defendant using Claude were not privileged because the AI tool was not a lawyer and was not used at counsel's direction. The FTC has pursued injunctions against "robot lawyers," and states including Pennsylvania and New York have enacted laws restricting AI impersonation of licensed professionals. The regulatory landscape continues to tighten around AI's role in legal work.
Attorneys should treat this as a client management issue. The core takeaway: counsel must explicitly instruct clients not to input sensitive materials into consumer AI platforms and should establish clear protocols for any AI use in legal matters. Failure to do so risks waiving privilege, triggering disclosure obligations, and creating liability exposure. As AI adoption accelerates, firms that don't address this proactively face both ethical and strategic exposure.