We all know that AI is transforming the legal field. But using these platforms carelessly can jeopardize one of the most fundamental protections in the attorney-client relationship: the privilege that keeps sensitive communications confidential. It's a risk every lawyer and client should understand before uploading anything to an AI tool.

Across the legal industry, attorneys and clients are leaning on AI in a variety of ways. Large language models like ChatGPT and Bard can help draft contracts or analyze legal issues, while AI-driven e-discovery tools can sift through massive troves of documents in record time. These platforms can feel like an extension of your legal team, but there’s a key legal distinction: they’re not bound by the same confidentiality duties as your attorney. Most consumer-facing AI services come with terms that allow the provider to use or review the information you submit, sometimes even to improve their models. When you place a privileged memo or a confidential client email into such a tool, you may be disclosing it to a third party, and courts have often ruled that doing so waives the privilege entirely.

The legal landscape varies from state to state. California, Nevada, Texas, and New York each have slightly different standards for determining when disclosure to a third party constitutes a waiver. But the principle is remarkably consistent: once privileged information leaves the secure confines of the attorney-client relationship without appropriate safeguards, it risks losing that protection. Imagine asking an AI chatbot to summarize your company’s legal strategy, or dropping an internal memo into a drafting assistant for editing. Without proper controls, that disclosure could later be used as evidence that you waived privilege over the underlying communication.

There are ways to benefit from AI while still protecting client confidences. When law firms engage vetted AI vendors under strict contracts that require confidentiality and encryption, courts are more likely to view those tools as trusted agents of the attorney. In those scenarios, privilege can remain intact. But clients and lawyers must be intentional about how they use these platforms. That means understanding the terms of service for any AI tool, limiting what confidential information is shared, and creating internal policies so that everyone on the team knows the rules of the road.

The bottom line is that technology is moving faster than ever, and AI is becoming an indispensable part of legal work. But innovation should not come at the expense of fundamental legal protections. By staying mindful of how and where privileged communications are shared, attorneys and clients can harness the benefits of AI while safeguarding the confidentiality at the heart of their relationship. In an age where data moves quickly and invisibly, caution and clear policies are the best tools we have to keep privilege secure.