From Privileged to Public: How AI tools Can Undermine Your Legal Protection

The use of third party AI tools, including widely accessible platforms such as ChatGPT, has become increasingly embedded in everyday life. Many people now turn to AI instinctively for quick explanations, advice, and reassurance.

As these tools become more deeply integrated into daily life, the temptation to rely on them when reviewing, interpreting, or double checking professional advice continues to grow. In the context of legal advice, this convenience brings significant risks.

What is legal professional privilege?

The advice provided to you by your solicitor, and in most cases, documents produced while advising you, is protected by legal professional privilege. This protection ensures that communications, advice, and documents remain confidential and are protected from disclosure to third parties, including, importantly, any opposing party.

How legal professional privilege can be waived

For legal professional privilege to apply, the privileged material must remain confidential. If privileged material is shared with a third party, the privilege may be waived. In those circumstances, you could be required to disclose previously confidential advice or documents to others, including an opposing party.

Why entering legal advice into AI tools can waive privilege

Many publicly accessible platforms such as Chat GPT are known as “open” tools. They operate by sending information to external servers or by using data to improve their models. All inputted information is processed and retained on third party systems. They are not secure, private environments aimed at protecting confidentiality. Inputting privileged material into such tools may constitute disclosure to a third party and could therefore waive legal professional privilege.

Do AI privacy settings protect confidentiality?

Some AI providers offer privacy settings or state that inputs are not used to improve their models, however, this does not guarantee the level of confidentiality required to preserve legal professional privilege due to the use of external servers.

Are closed AI systems safer for legal information?

Some providers do offer “closed” AI tools which operate within an internal system and inputted data does not leave the provider’s environment. However, even in those circumstances, the security, confidentiality, and data-usage provisions of such tools would need to be carefully considered before use.

What you should avoid when using AI tools

Accordingly, we advise that you do not:

• Rely on privacy settings
• Assume a “closed” AI tool sufficiently protects confidentiality
• Input any privileged material into AI platforms

What should you do instead

We advise that you do:

• Ask your solicitor if you need clarification in relation to any part of your legal advice or documents.
• Use AI tools only for non-confidential tasks.
• Speak to your solicitor if you have already used an AI tool.

Protecting legal professional privilege in the age of AI

Protecting legal professional privilege is essential to safeguarding your position, particularly when there is a dispute. While AI tools offer impressive capabilities, they are not designed to handle privileged legal material and should never be used as a shortcut for reviewing solicitor advice.

If you are ever unsure about the best way to handle privileged material, or if you need clarification on the legal advice you have received, please speak to a solicitor. We are here to help you navigate these issues.

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