General-purpose AI tools like ChatGPT and specialized ones such as Harvey and Legora are increasingly used for “legal advice.” A recent US court ruling highlighted concerns regarding legal privilege when confidential information is shared with AI chatbots. In a New York case, the court determined that using AI-prepared legal documents waives attorney-client privilege due to the inconsistency with maintaining confidentiality.
While Australian law parallels this concept, it emphasizes the importance of human lawyers for legal professional privilege. AI-generated advice lacks this protection and, in scenarios involving anticipated litigation, any legal interactions with AI must involve a lawyer to ensure the communications are privileged.
Crucially, sharing privileged information with third parties can lead to a waiver of privilege, especially when using free AI tools that utilize user data for training. Organizations must carefully evaluate AI tools’ privacy policies and only use authorized lawyers to secure legal privilege for sensitive information.
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