The scope of privilege protection under this framework remains unclear. Courts have not yet tested whether the "agent" exception will withstand scrutiny or how it applies across different practice areas and client instructions. State bar guidance on AI use continues to evolve, and enforcement patterns are not yet established.
Denniston's argument at Factor cuts to the core tension: legal leaders are debating tool approval and disclosure rather than building team standards for responsible AI integration. With 80% of professionals expecting transformational impact within five years but 96% rejecting AI courtroom representation, the real risk is not AI itself but unmanaged deployment. Firms should move beyond binary positions—neither embracing AI uncritically nor treating it as a compliance checkbox—and instead establish clear protocols for when and how lawyers direct AI use, who reviews outputs, and how confidentiality is maintained. The Heppner ruling signals that courts will scrutinize the distinction between direct client use and lawyer-supervised deployment. Practices without documented AI governance frameworks face both ethical exposure and privilege disputes.