Putting the “AI” in Waiver of Privilege
AI technology has seen explosive growth in the last few years. It has grown from a set of awkward but sometimes entertaining tools into a multi-billion-dollar industry that people are using in every facet of their lives, including AI tools for legal research, document drafting, and litigation strategy.
In contrast, the law is oftentimes slow to change. Until the law catches up, navigating a world of AI will be a very real challenge for lawyers, legislators, and parties to litigation, particularly when it comes to AI and solicitor-client privilege.
A recent case out of New York has raised what will no doubt be a very common issue in the coming years: whether a client’s use of AI waives privilege over important legal documents and communications, and whether using AI platforms like ChatGPT can result in a waiver of privilege.
United States v. Heppner
United States v. Heppner is a case that was heard by the United States District Court for the Southern District of New York and decided on February 17, 2026. The case is already being discussed in the context of AI and attorney-client privilege risks.
Mr. Heppner was accused of securities fraud and related charges. He was arrested, and during the arrest, a number of his devices were seized. On these devices were at least 31 documents created using an AI platform. These documents were prepared by Mr. Heppner after he had been notified of his grand jury charge (a preliminary hearing in the U.S. to determine whether a criminal charge can be brought). Mr. Heppner prepared the documents using the AI tool and included summaries of possible defence strategies and facts he had discussed with his lawyer, or planned to discuss with his lawyer — effectively uploading potentially privileged legal advice into an AI system.
The prosecutors sought access to those documents, raising concerns about AI-generated documents and litigation disclosure obligations.
Mr. Heppner’s lawyer argued that the AI-generated documents were privileged, noting that they included information provided by counsel, were prepared for the purpose of speaking to counsel, and were later shared with counsel.
The court did not accept this argument and allowed the prosecution to review the documents. In making its decision, the court noted:
- The documents were not communications between Heppner and his counsel, and therefore were not lawyer–client communications.
- The communications were not confidential — the AI licence specified that the developer could use the inputs as training data and share the information with government bodies, undermining any expectation of confidentiality required for solicitor-client privilege.
- Heppner did not communicate with the AI to obtain legal advice — while he used the AI to prepare for conversations with his lawyer, it was not at his lawyer’s instruction, raising questions about whether AI can be considered a third party for privilege purposes.
Key Takeaways – For Lawyers
Heppner is, of course, not binding on any Canadian court and was decided in the criminal law context. The exact tests for privilege in Canada and the U.S. are slightly different. The case may be subject to appeal. It is by no means the definitive answer to whether AI-generated documents of this sort can be privileged or whether Canadian courts will find that AI use waives privilege.
It is, however, one of, if not the first, cases to address a client’s use of AI when preparing legal strategy and highlights growing concerns about AI and privilege waiver risks in litigation.
The likelihood that clients and opposing parties are using AI is increasing daily. Mr. Heppner’s decision to have AI review and strategize with him before and after meetings with counsel is probably very common. Lawyers should assume that clients are taking notes of conversations, advice, and input, and entering them into AI software to summarize or strategize. Lawyers should warn their clients about the risks this poses to privilege, the possibility of waiver through disclosure to third-party AI providers, and the potential impact on disclosure obligations.
Lawyers should also consider the impact AI may have on the discovery process. Clients should be advised that AI correspondence may need to be listed and produced, and lawyers may consider asking about the use of AI by opposing parties during examinations, particularly in relation to AI-assisted legal strategy and document preparation.
It does not appear that a Canadian court has yet commented on this issue. It is possible Canadian courts will come to a different conclusion than the court in Heppner. But until the courts decide, caution should be exercised in advising clients against sharing potentially privileged advice and documents with AI tools, especially where confidential legal information is being uploaded to external platforms.
Key Takeaways – For Litigants
If you have retained counsel, privilege is one of the most important aspects of your relationship with your lawyer. It provides one of the strongest forms of confidentiality available in the legal system. However, it can be waived through your actions. Asking AI to review the advice your lawyer gave you, or documents related to your case, can put privilege at risk and may result in unintended waiver of solicitor-client privilege.
If you use AI for daily activities or work, do not extend that use to your legal issue without first speaking to your counsel. The convenience of AI should not outweigh the protection afforded by confidential legal communications.
Conclusion
AI is rapidly changing how people interact with the world. Its use is becoming more normalized every day, including in professional and legal contexts.
A lawyer’s role is to advise and caution clients against risks, and AI’s impact on privilege is an enormous and uncertain one. This issue — and all uses of AI in the legal world, particularly in relation to AI, confidentiality, and waiver of privilege — should be at the forefront of counsel’s mind when advising clients.
Disclaimer: This content is provided solely for informational purposes and is not intended for use in any legal proceeding. You should consult a qualified lawyer for advice tailored to your specific circumstances.
