Critics writing on Above the Law dispute that a firm can sell this material at all, arguing that privilege belongs to the client, not the firm. They cite Upjohn-era principles and the Supreme Court's decision in Swidler & Berlin v. United States, which held that privilege survives the client's death, to argue it has no expiration date. They also invoke Judge Jed Rakoff's 2026 ruling that AI-generated material was not protected by attorney-client privilege or work-product doctrine, and argue that payment for disclosure would not change the analysis. The governing rules remain unsettled. Clio's guide describes a federal decision treating a lawyer's use of a consumer AI tool as having voided privilege, with the platform's terms of service a factor. A critique on XIRA argues that ABA Formal Opinion 512 addresses lawyers using AI tools, not selling raw client material to train another company's model, and that Model Rule 1.6 covers all information relating to a representation even after names are removed. No court has squarely decided whether de-identified operational records can be sold without waiving client protections.
This matters now because the question arrives as firms are expanding their own AI use and looking for new revenue. Attorneys should treat any offer to license internal communications as a privilege and confidentiality question first, and a business question second. Before any export, check whether the material is privileged, whether client engagement terms permit third-party use, and whether de-identification would hold up under scrutiny. Watch for an ethics opinion or a court ruling that addresses de-identified data sales directly, and for state bar guidance, since disciplinary exposure will likely turn on how those bodies read Rule 1.6.