AI and Legal Privilege: Updates from Federal District Courts
US v. Heppner and Warner v. Gilbarco
“Chat, is our conversation protected?” As usual, the answer may be “it depends.”
Highlights from two recent federal district court cases, US v. Heppner and Warner v. Gilbarco, provide different answers to this question.
The learning? If you are using AI tools for legal-related matters, you should think twice before entering personal information or other case-related information.
United States v. Heppner
On February 17, 2026, the federal district court for the Southern District of New York found that neither attorney-client privilege nor the work product doctrine applied in protecting legal strategy materials that were generated using a public version of Claude.
In its memorandum of reasoning, the court states its ruling “appears to answer a question of first impression nationwide: whether, when a user communicated with a publicly available AI platform in connection with a pending criminal investigation, are the AI user’s communication protected by attorney-client privilege or the work product doctrine?” The court answers with a resounding “no,” given the circumstances of the case.
In Heppner, the court first ruled that the defendant’s conversations with AI were not covered by attorney-client privilege.
This is because attorney-client privilege attaches with:
- Communications between a client and their attorney,
- which are intended to be, and were, kept confidential,
- for the purposes of obtaining or providing legal advice.
The court held that the AI-generated communications failed at least two, if not all three of these elements. Not only were the conversations not with counsel, but Heppner’s communications were not confidential because he used a public or consumer version of the Claude platform. The court notes that the platform’s privacy policy specifies that user inputs and outputs are used for training purposes, and that the platform reserves the right to disclose this information to third parties, including governmental regulatory authorities.
In Heppner, the court also held that the work product doctrine also did not apply to the materials generated from the public or consumer version of Claude. This is because the work product doctrine requires that materials are prepared by or at the direction of counsel. Because these documents were not prepared by or on behalf of counsel, and did not reflect the defense counsel’s strategy, the court held the work product doctrine did not apply.
Warner v. Gilbarco
On February 10, 2026, the Eastern District of Michigan heard a similar – but not identical case – and found that the work generated by AI was attorney-client work product. In this case, the AI tools were used to prepare legal materials. However, in contrast to Heppner, the court reasoned that “ChatGPT (and other generative AI programs) are tools, not persons” and found that both the attorney-client privilege and work product doctrine apply.
Although the court determined that sensitive information pertaining to the case was provided to ChatGPT, they found that this was not equivalent to a “voluntary disclosure to a third person,” which would ordinarily waive attorney-client privilege, did not apply. This is because the AI was not considered a third person.
Additionally, the court found that work product waiver requires disclosure to an adversary or in a manner likely to reach an adversary. Because this was not found to be the case with the disclosure to ChatGPT, this doctrine was not waived.
Key Takeaways
Although these two similar cases come to different conclusions, it is important to note that they are not factually identical. It is also important to emphasize that these are early federal district court cases, and these matters of first impression are likely to evolve in the coming year.
In the meantime, individuals (and other entities) using generative AI for legal advice should consider these cases and their outcomes. If you are planning on using generative AI for legal advice, you should consider the AI tools you’re using, the configurations of those tools, and the purposes for which you are using the tools.
Credit: Emma Wallace