When Lawyers Use AI: Does Attorney-Client Privilege Still Hold Up?
Image generated by Google GeminiAttorney-client privilege has always been a pillar of the legal profession, a promise that clients can speak openly, knowing their information is protected. But with AI tools becoming a part of everyday practice, the question is becoming more real than theoretical: How much can lawyers rely on privilege when a machine is now part of the conversation?
This isn’t just a technical issue; it’s about trust, responsibility, and the foundations of the legal system.
In just the past year, AI has moved from something “interesting to explore” to something many firms now use without a second thought. Generative AI drafts early research memos, intake chatbots collect client details, and machine learning tools review massive discovery sets in minutes. These tools save time, but they also raise an uncomfortable question: if a third-party system processes client information, does that create gaps in privilege that lawyers never had to consider before?
And make no mistake: lawyers are using these tools. A new associate may rely on AI assistant to structure a brief. A mid-size firm may use an AI chatbot to manage new inquiries. In discovery, predictive coding has evolved far beyond classification, tools now evaluate strategy and suggest arguments.
The efficiency is undeniable. AI brings speed, consistency, and organization to legal work. But each convenience comes with a quiet, persistent worry: if client information flows through these systems, who else is —intentionally or not— “in the room”? And if a court ever scrutinizes that process, will privilege still hold up the way it always has?
The Upside: How Can AI Strengthen Privilege
It’s easy to focus solely on the risks, but AI isn’t inherently a threat. In many cases, it can enhance privilege.
Instead of relying on scattered emails or handwritten notes, secure AI-powered platforms allow firms to centralize communications and create traceable audit trails. Tools like Clio and Relativity help document workflows, making it easier to demonstrate diligence if privilege is later questioned. Platforms such as Everlaw and Logikcull take this further by automating privilege checks, flagging sensitive documents, and reducing the risk of human oversight that could lead to accidental disclosure.
AI-supported drafting and research tools are also becoming more privacy-aware. Solutions like CoCounsel and Harvey AI, when used within controlled firm environments, strengthen legal work by identifying patterns, reducing errors, and keeping sensitive information within secure boundaries.
Used responsibly, AI can actually reinforce confidentiality. It can limit mistakes, reduce manual handling of sensitive data, and provide digital documentation that proves how closely attorneys safeguarded client communications. In the best-case scenario, AI doesn’t weaken privilege, it helps lawyers protect it.
The Downside: Where AI Puts Privilege at Risk
But the risks are real, and they’re not small.
Most AI tools weren’t built specifically for legal work. They’re created by third-party vendors whose terms of service may allow data retention or model training. If privilege information ends up in systems that store or reuse prompts, privilege could be compromised long before anyone realizes it.
Picture a potential client typing sensitive details into a firm’s chatbot before they officially become a client. Is that privileged?
Or consider a large language model that keeps fragments of user prompts to improve performance. If a lawyer enters confidential facts, could opposing counsel argue that the data lost its privilege status the moment it left the attorney’s control?
These aren’t abstract puzzles, they’re the questions regulators, ethics committees, and courts are actively grappling with. And their answers will shape how lawyers use AI long into the future.
What U.S. Legal Authorities Are Saying About AI and Privilege
The law may move slower than technology, but throughout 2024 and 2025, U.S. legal authorities have been forced to confront AI’s growing impact on attorney-client privilege. And while there’s still no sweeping federal rule, ethics committees and bar associations have made their positions increasingly clear.
In July 2024, the American Bar Association issued Formal Opinion 512, its first major guidance on generative AI. The takeaway was direct: lawyers may use AI, but remain fully responsible for competence, confidentiality, communication, and fairness in billing. The ABA also emphasized that client consent is required when confidential information is processed through AI tools. Privilege isn’t lost in the age of AI, but lawyers must take deliberate steps to protect it.
State bars issued more pointed guidance:
The Florida Bar’s Ethics Opinion 24-1, allows generative AI use but warns against platforms that retain or reuse client data. It urges lawyers to vet tools carefully and safeguard confidentiality.
The Mississippi Bar’s Formal Opinion 267 highlights the need for accuracy, data protection, and transparency with clients.
The San Francisco Bar’s ethics committee issued a sharp caution yet: avoid AI tools that train on client inputs, because doing so could be treated as disclosing privilege information.
Across all of these opinions, the theme is unmistakable: ABA Model Rule 1.6 on Confidentiality, still governs everything. AI does not change the duty of confidentiality, it only changes the environment in which lawyers must uphold it.
Regulators are unified on one point: privilege can absolutely survive in an AI-integrated practice, but only if lawyers evaluate these tools with the same scrutiny they apply to any third-party relationship that touches confidential information.
Privilege in the Era of AI: A Responsibility That Never Stops
So where does that leave lawyers—and the clients who rely on them?
This moment calls for more than caution. It calls for continuous learning. As AI becomes part of everyday legal work, attorneys must stay informed about emerging rules, ethics opinions, and industry standards that shape how these tools can be used without compromising confidentiality. The lawyers who keep pace with these developments, and build AI literacy intro their professional toolkit, will be better positioned to protect their clients and their practice.
Firms must also take a proactive approach: evaluating AI tools with rigor, understanding what data they retain, and being transparent with clients about when AI is used and how their information is protected. Technology doesn’t lighten a lawyer’s responsibilities; it raises the expectations around competence, diligence, and communication.
Attorney-client privilege isn’t disappearing. But like every major shift before it, from email to cloud storage, it is changing form. AI simply asks the profession to meet the moment with the same commitment it has always held: protecting client trust above all else.
Privilege remains a promise. AI doesn’t weaken that promise, it just requires lawyers to uphold it with new skills, sharper awareness, and the willingness to adapt as the landscape continues to evolve.
At Wagner Legal PC, our priority is simple: protecting our clients. As AI transforms the legal landscape, we stay ahead of new laws and ethics rules to ensure your privacy and confidentiality are never compromised. Learn more about our services and how we can support your legal needs.
