Introduction
This Client Alert addresses a significant development in attorney-client privilege law involving artificial intelligence tools. On February 10, 2026, Judge Rakoff of the U.S. District Court for the Southern District of New York ruled from the bench that documents a client created using a commercial generative AI tool and sent to his lawyer were not protected by privilege. This ruling in United States v. Heppner, No. 05-94 (JRT/FLN), 2005 U.S. Dist. LEXIS 52324 (D. Minn. Oct. 12, 2005) has important implications for how clients and attorneys should approach the use of AI tools in legal communications.
In the Heppner case, a defendant created documents using a commercial generative AI tool and subsequently sent those documents to his attorney. The government moved for a ruling that these AI-generated documents were not protected by attorney-client privilege. Judge Rakoff ruled from the bench on February 10, 2026, that the documents were indeed not privileged.
Legal Standards
What is attorney-client privilege and how does it generally apply?
The attorney-client privilege protects communications between a client and his or her attorney that are intended to be, and in fact were, kept confidential for the purpose of obtaining or providing legal advice. United States v. Mejia, 655 F.3d 126 (2d Cir. 2011). The privilege's underlying purpose has long been to encourage full and frank communication between attorneys and their clients and thereby promote broader public interests in the observance of law and administration of justice. United States v. Mejia, 655 F.3d 126 (2d Cir. 2011). However, courts apply the privilege only where necessary to achieve its purpose and construe the privilege narrowly because it renders relevant information undiscoverable. United States v. Mejia, 655 F.3d 126 (2d Cir. 2011). The party asserting the privilege bears the burden of establishing its essential elements. United States v. Mejia, 655 F.3d 126 (2d Cir. 2011).
Third Party Involvement
The existence of a third party somewhere along the line of communication does not destroy the privilege if the purpose of the third party's participation is to improve the comprehension of the communications between attorney and client. United States v. Mejia, 655 F.3d 126 (2d Cir. 2011). Where that purpose is missing, however, the presence of a third party may lead to a finding that the communication was not intended to be, and actually was not, kept confidential. United States v. Mejia, 655 F.3d 126 (2d Cir. 2011). Analysis
Impact of AI Tool Usage on Privilege
The Heppner ruling suggests that courts may view commercial AI tools as third parties in the communication chain between client and attorney. Under established precedent, the critical question becomes whether the AI tool's participation serves to improve the comprehension of communications between attorney and client. United States v. Mejia, 655 F.3d 126 (2d Cir. 2011). If this purpose is absent, courts may find that the communication was not intended to be, and actually was not, kept confidential. United States v. Mejia, 655 F.3d 126 (2d Cir. 2011).
From the client’s perspective, the ruling indicates that simply using an AI tool to generate documents before sending them to counsel may violate the confidentiality requirement essential to attorney-client privilege. This is particularly concerning given that the party asserting the privilege bears the burden of establishing its essential elements. United States v. Mejia, 655 F.3d 126 (2d Cir. 2011).
Broader Implications
Courts have applied rigorous scrutiny in considering all categories of attorney-client privilege because it renders relevant information undiscoverable. United States v. Mejia, 655 F.3d 126 (2d Cir. 2011). Accordingly, attorney client privilege as a whole has been broadly eroded over the past few decades. AI assisted drafting or communications should not be considered an exception. This recent federal court decision reflects the narrow construction courts already apply to claims of attorney client privilege and strongly signals that courts will apply the same level of scrutiny to AI tool usage in legal communications as they apply to other third-party involvement scenarios.
Key Takeaways and Recommended Procedures For All Clients
1. Exercise Caution with AI Tools: Need it be said, any advice or documentation a client directly receives from AI is not subject to attorney client privilege, or in many cases confidentiality. This is because AI providers (even “Legal AI” platforms) are not law firms, and are not subject to the same professional rules, regulations and potential liability standards as actual attorneys.
2. Communications with Counsel. But the recent ruling also implies clients should avoid using commercial AI tools to create documents intended for privileged communications with counsel.
3. Direct Communication Preferred: When seeking legal advice, communicate directly with your attorney without intermediary AI assistance to preserve privilege.
4. Document Review: If AI tools have been used in document preparation, discuss with counsel whether privilege protection may be compromised.
For Litigation Clients
Discovery Implications: Be aware that AI-generated documents may be subject to discovery
if privilege protection is lost.
Protective Orders: Work with counsel to seek protective orders when AI-generated materials must be disclosed, as courts must protect against disclosure of mental impressions, conclusions, opinions, or legal theories of a party's attorney concerning the litigation. USCS Fed Rules Civ Proc R 26.
Privilege Logs: When withholding information by claiming privilege or protection as trial- preparation material, ensure proper documentation of the basis for such claims. USCS Fed Rules Civ Proc R 26.
For Transactional Clients
Contract Negotiations: Avoid using AI tools to draft communications with counsel regarding
deal terms or legal strategy.
Due Diligence: Exercise particular caution when AI tools might be used in preparing materials for legal review during transactions.
Client Agreements: Carefully review provisions in attorney engagement letters addressing AI tool usage and privilege implications.
Preventive Measures
Internal Policies: Develop clear internal guidelines regarding AI tool usage in legal
communications.
Training: Ensure personnel understand the potential privilege implications of AI tool usage.
Consultation: When in doubt about privilege protection, consult with counsel before using AI tools in legal contexts.
Conclusion
The Heppner ruling represents a significant development in the intersection of technology and attorney-client privilege. Its implications extend broadly to how courts may evaluate privilege claims involving artificial intelligence tools. Clients should exercise heightened caution when considering AI tool usage in legal communications and work closely with counsel to develop appropriate protocols that preserve privilege protection.
Download the Original Client Alert (PDF)
View the complete legal alert in its original PDF format, published by Drohan Lee LLP.
