Safe Use of AI When Consulting an Attorney
Artificial intelligence is changing how we approach everything from gathering information to drafting documents. Rather than take a deep dive into a topic, you can simply ask it a question and you instantly get an answer that may have taken hours and hours to come to on your own. But, while AI is a valuable tool, it is not all-knowing and it has vulnerabilities. It’s especially important to understand how AI poses risks when relied on to address legal inquiries.
The Limited Reliability of AI Responses
When you ask AI a question or provide it with a prompt, it’s not looking up something in a database or checking sources for truth and accuracy. Rather, it generates text that sounds plausible based on its training through statistical pattern matching. It is quite possible that AI will mention or cite a non-reliable website or have what are referred to as hallucinations, which is when AI makes up incorrect or fake information and presents it as real facts.
If you ask AI to answer a legal question or create a legal document - such as a non-disclosure agreement (NDA) or contract - you will get what it perceives as something correct, but it could be lacking important nuances or clauses. Plus, there are also flaws in its reasoning. A study found that the feedback of AI models is far from impartial and tends to agree with your side even if you were incorrect.
These inherent drawbacks can cause serious consequences in a legal environment. AI does not have the knowledge or judgment of an attorney. Relying on AI to backup your position or build you a document can cause deals to fall apart or leave you open to legal proceedings. A lawyer, on the other hand, will give you an honest opinion on your position based on experience and expertise, and will craft documents that will protect your best interests. AI is not built for providing legal advice or services - in fact the terms of service of AI platforms specifically state that AI is not a lawyer, it does not provide legal services.
And if you think you are saving time and money by having AI write up a draft of a document and then hire an attorney to review it, that is definitely not the case. The attorney will have to thoroughly review that document to make sure it is accurate and make any necessary edits - which would take more time than tweaking existing templates that they routinely use for their clients.
Potential Loss of Attorney-Client Confidentiality
Using AI as a sounding board for your legal questions can hurt rather than help you - in fact, it can be a legal liability.
What is Attorney-Client Privilege?
Conversations you have with your attorney are confidential. They generally cannot be disclosed, with some exceptions - one of those being if those communications were shared with outside parties. It typically covers conversations
Between the client and attorney
Made for the purpose of seeking or giving legal advice
Intended to be confidential
AI - A Third Party
Since AI is not a person, you may think nothing of sharing information that could impact your legal positioning with it, but that would be a mistake. Doing so on open and non-enterprise AI platforms is the same as sharing your information with a third party. You cannot claim that information is subject to attorney-client privilege.
This concept recently was addressed in the case of United States v. Heppner. There, the court held that documents generated using the non-enterprise version of Claude were not protected by attorney-client privilege. The court found that the documents lacked the first two if not three of the requirements. The back and forth between the defendant and AI platform were not conversations taking place between the defendant and his attorney. Because Claude is not an attorney, the first prong is not met. Second, the information in the documents was not meant to be kept confidential because the information was shared with a third-party platform, plus the defendant agreed to Claude’s privacy policy which states it collects data on the user’s inputs and Claude’s outputs and reserves the right to disclose that data to a host of third parties. And lastly, the defendant didn’t prepare the documents for the purpose of seeking legal advice.
So when you put information into an AI platform, even if it is to merely better understand something or generate a list of questions to ask your attorney, know that this information may not be protected and could end up in the hands of the opposing party or their attorney.
How to Move Forward
To protect yourself, it is best to seek legal advice or services directly from an attorney rather than pose questions to AI or ask it to draft legally binding documents. AI does not have the depth of knowledge or expertise of a trained and experienced professional. Plus, “conversing” with AI could result in sensitive data being exposed.
