Is Artificial Intelligence Jeopardizing the Attorney-Client Privilege in Your Case?

There is little doubt you have either used ChatGPT, know of it, or have heard of it.

In fact, the popularity of Artificial Intelligence (AI) tools like ChatGPT has grown so quickly that AI is already well-entrenched within the legal industry. For better or for worse, the legal community has utilized ChatGPT for legal research and drafting contracts, briefs, and other legal documents. When using ChatGPT in ongoing litigation, careful consideration must be given to prevent potential unintended consequences.

A significant concern for many attorneys today is whether the use of ChatGPT and other AI tools like it could jeopardize the attorney-client privilege.

“The attorney-client privilege attaches to communications made by a client to an attorney acting as a legal adviser and made for the purpose of obtaining legal advice.” Herald Co., Inc. v Ann Arbor Pub. Sch. “The attorney-client privilege is designed to permit a client to confide in his attorney, knowing that his communications are safe from disclosure.” McCartney v Attorney General.

Confidentiality is a crucial piece of the attorney-client relationship because the protection from disclosure is lost if attorney-client communications are not made in a confidential setting. But when clients and attorneys use AI systems, such as ChatGPT, it raises serious concerns about confidentiality.

ChatGPT is a large language model that uses machine learning algorithms to generate human-like answers and dialogue in response to questions or queries inputted by the user. In other words, ChatGPT uses information it has learned from user input to generate responses. Thus, ChatGPT is limited in that it can only provide answers based on the data it has been trained on.

ChatGPT is utilized for a wide range of purposes, including composing emails, curating social medial posts, drafting essays, composing music, and conducting legal research and writing. You may be thinking: was this blog post written by ChatGPT? I can assure you it was not.

However, as it relates to the attorney-client privilege, ChatGPT is not confidential because it logs every conversation, including any personal data that is shared by the user, which the system then uses as training data. ChatGPT’s creator OpenAI has a privacy policy that expressly indicates it collects personal information included in “input, file uploads, or feedback” users provide to Chat GPT and its other services.

In fact, OpenAI explicitly states that it will use conversations to improve its AI language models and that chats may be reviewed by human AI trainers. Additionally, OpenAI cannot delete specific questions or requests that were inputted by a user from a user’s history and advises against sharing any personal or sensitive information with ChatGPT.

For perspective, I asked ChatGPT directly whether its use affects the attorney-client privilege. This is the response I received back:

I am an AI language model, and I don't have the ability to access or retain personal information about individuals unless it has been shared with me during our conversation. I am designed to respect user privacy and confidentiality. My primary function is to provide information and answer questions to the best of my knowledge and abilities. However, please note that I am not a lawyer, and the information I provide should not be considered legal advice. If you have concerns about attorney-client privilege, it's always best to consult with a qualified legal professional to ensure you receive accurate and reliable advice based on your specific circumstances.

Yet ChatGPT is not really telling the whole truth. What if, for example, a question inadvertently reveals a confidential fact; how will ChatGPT use that in the future? What if an attorney asks a question about a merger agreement and inadvertently reveals that a small publicly-traded company is being purchased. Does ChatGPT recognize that the deal itself is confidential, or just the name of the attorney that asked the question? How would the model use that information to answer future questions about the company posed by other users? Not only could the attorney reveal a confidence and violate attorney-client privilege, but he or she could also create a trading opportunity that could jeopardize the deal.

With this information in mind, both attorneys and clients should be careful when using ChatGPT as it relates to any legal matter or case. For example, a client could be short on time, but has new, relevant information for his or her lawyer, and decides to fire up ChatGPT to compose an email containing this information. As we now know, ChatGPT is not confidential, but the system retains this information and may share it with a third party.

This is not to say that ChatGPT is completely off limits in the legal setting. ChatGPT can be used to brainstorm on how to begin a brief or for some inspiration to overcome writer’s block. But when doing so, the key is to refrain from inputting any confidential information into ChatGPT that could jeopardize the fundamental privilege that exists between an attorney and client.

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