By: David S. Levine and Ryan M. Hubbard
When a party communicates with a publicly available artificial intelligence (AI) platform in connection with a legal dispute, are the party’s communications protected by the attorney-client privilege or work product doctrine?
In one of the earliest decisions on this issue, Judge Jed S. Rakoff—an influential judge in the Southern District of New York—held that such communications were not protected. Although far from the final word on this issue, the decision offers practical lessons for clients seeking to preserve the confidentiality of their communications with their attorneys.
As described below, businesses should take the following steps:
- Involve Counsel at the earliest opportunity if consulting an AI system regarding a legal issue, because there is no attorney-client privilege without an attorney.
- Scrutinize AI Provider Terms to see if the AI system may share your information with third parties. Some AI systems, or subscription levels, may offer confidentiality that can help protect privilege for communications involving an attorney.
- Prepare Policies to ensure that employees know how to handle privileged and confidential information, and to reflect your business’s approach to managing the risks and opportunities of AI tools.
In the article that follows, we briefly describe the facts of the case, summarize Judge Rakoff’s decision, and outline practical takeaways.
Factual Background
In 2025, Benjamin Heppner received a grand jury subpoena suggesting that he had committed securities and other fraud. Shortly thereafter, Heppner began using Claude, a generative AI platform, to prepare a defense strategy.
In late 2025, Heppner was arrested. In connection with the arrest, the FBI executed a search warrant at Heppner’s home and seized, among other things, his electronic devices. Heppner’s counsel later represented to the Government that the seized materials included Heppner’s communications with Claude regarding his defense strategy.
Heppner’s counsel asserted that the communications with Claude were protected by the attorney-client privilege and/or work product doctrine. The Government disagreed and sought to review the communications.
The Decision
On February 17, 2026, Judge Rakoff issued a written decision indicating that neither the attorney-client privilege nor work product doctrine protected the communications.
Attorney-Client Privilege. As Judge Rakoff recounted, the attorney-client privilege protects communications (1) between a client and his or her attorney (2) that are intended to be, and in fact were, kept confidential (3) for the purpose of obtaining or providing legal advice.
Judge Rakoff concluded that none of those elements were satisfied. Element (1) was not satisfied, Judge Rakoff reasoned, because the communications at issue were between Heppner and Claude—not an attorney. Nor did Heppner satisfy the confidentiality requirement in element (2), because Claude’s privacy policy provides that the system collects data on both users’ “inputs” and Claude’s “outputs,” that it uses such data to “train” Claude, and that Claude’s owner reserves the right to disclose such data to “third parties.” Finally, Judge Rakoff also concluded that element (3) had not been satisfied, in part because Heppner did not communicate with Claude at the direction of counsel.
In an important footnote, Judge Rakoff also indicated that even if Heppner’s inputs to Claude incorporated privileged information between Heppner and his counsel, Heppner “waived the privilege by sharing that information with Claude . . ., just as if he had shared it with any other third party.”
Work Product. The work product doctrine—which is related but distinct from attorney-client privilege—provides qualified protection for materials prepared by or at the behest of counsel in anticipation of litigation or for trial.
Judge Rakoff concluded that the work product doctrine did not protect the materials. His opinion emphasized that the documents reflecting communications with Claude were not prepared at the behest of Heppner’s counsel. While the documents may have disclosed Heppner’s legal strategy, the documents did not disclose his counsel’s legal strategy. The work product doctrine therefore did not protect the documents.
Takeaways
It is important to emphasize the limitations of this case. Although the ruling relies on traditional attorney-client privilege and work product principles, the decision is a fact-specific ruling by a single federal judge and does not constitute binding precedent. As other judges grapple with these emerging issues, under different facts, there will be more guidance to come. (And, indeed, a judge in the Eastern District of Michigan has already issued a ruling contrary to certain aspects of the Heppner decision.)
As the courts continue to sort through these issues, however, businesses and other clients can take steps now to ensure that their communications are sufficiently protected. In particular, businesses should consider the following:
- Involve Attorneys: An obvious but important point is that there is no attorney-client privilege without an attorney. If a business chooses to consult an AI system regarding a legal issue, then the business should at a minimum involve counsel at the earliest opportunity. The attorney can then provide guidance regarding protecting the confidentiality of any communications.
- Scrutinize AI Provider Terms: Judge Rakoff’s decision also reflects that the specific terms and conditions and privacy policies of the AI system matter. If the AI system shares inputs and outputs with third parties, then any information shared with the system is arguably not privileged or otherwise protected, even if an attorney is involved. But if the AI system maintains the confidentiality of the inputs and outputs—as certain “enterprise” and other AI systems do—then the disclosure of information to the AI system is less likely to result in a waiver of protected rights.
- Prepare Policies: Different businesses will have different risks tolerances with respect to the use of AI tools. Whatever the risk tolerance, however, businesses should ensure that employees know which AI tools they are permitted to use for work purposes and under what circumstances. Indeed, for organizations, privilege may be only as strong as the least trained user: a single employee’s decision to paste legal advice or strategy into an unapproved tool can jeopardize the company’s protection over that material. Companies should ensure that their employees know what is permitted and what is not.
Fox Swibel is monitoring these issues closely and can be reached at any time. Please contact David S. Levine, Ryan M. Hubbard, or the Fox Swibel attorney with whom you regularly work to discuss these issues.
David S. Levine
David Levine is a partner in the Firm’s Employment Law and Litigation Groups. David’s practice focuses on representing clients in a wide range of labor and employment matters, as well as other business disputes. As part of his litigation practice, David regularly defends employers in class, collective, and individual actions involving claims under the FLSA, Title VII, ADA, and other federal and state statutes. David also often litigates individual and class actions involving data privacy issues, in particular cases under the Illinois Biometric Information Privacy Act (BIPA). He practices in state and federal courts and before administrative agencies such as the EEOC, DOL, and DOJ.
Ryan M. Hubbard
Ryan Hubbard is a partner in the Litigation and Intellectual Property groups. He concentrates on complex patent and intellectual property litigation in federal court around the country and counselling clients on intellectual property portfolio management, new product development and clearance, and due diligence. He has advised clients regarding cyber-security, privacy, and data breach issues. He represents clients of all sizes, from startups to multinational corporations, and leverages his curiosity and a deep understanding of client needs to deliver practical advice and long-term solutions.
This article contains material of general interest and should not be construed as legal advice or a legal opinion on any specific facts or circumstances. Under applicable rules of professional conduct, this content may be regarded as attorney advertising.