Groundbreaking AI Privilege Opinion Offers Roadmap for Counsel
In a contributed column to Bloomberg Law, Woods Rogers’ Government & Special Investigations attorney Justin Lugar offers a look at the first case in the United States in which a federal judge has opined on the intersection of AI and privilege. The court’s opinion in United States v. Heppner offers practitioners a look at what could be protected under different facts.
In the case, Bradley Heppner used Anthropic’s AI tool Claude to discuss financial transactions under federal investigation and potential defense strategies before he had retained counsel. When prosecutors later sought access to those chats, a federal judge ruled they were not protected by the attorney-client privilege or the work product doctrine.
Justin writes, “The holding itself is unremarkable. Heppner’s AI chats are no more privileged than a Google search. It doesn’t matter how sensitive the subject matter was or that he later handed the results to counsel. Providing search results or AI outputs to a lawyer after the fact doesn’t retroactively cloak those communications in privilege or work product protection.”
Judge Jed Rakoff suggested that under different circumstances, an AI tool like Claude could potentially function as a lawyer’s agent under the Kovel doctrine, which extends attorney-client privilege to non-attorney professionals assisting counsel. This suggests that AI-generated analysis may be protected if the tool is used at an attorney’s direction, and in a confidential way, to provide legal advice.
“That’s a meaningful signal for practitioners,” Justin notes.
The Heppner decision makes clear that using commercial AI tools without attorney involvement likely creates discoverable records, even when the subject matter is sensitive or resembles legal analysis. While the ruling leaves open the possibility that AI-assisted work could be privileged, courts will require clear evidence that the tool was used under meaningful attorney direction, not simply labeled as work for counsel after the fact.
Team
Of Counsel