# Legal Basis: What AI Can and Cannot Do Date: 2026-07-02 An AI can help you think about law, but it does not become your lawyer just because you asked it a legal question. ## The Boundary Between "Legal Information" and "Legal Advice" AI can do many things: it can summarize documents, explain legal concepts, draft first-pass text, and spot issues. But it cannot replace licensed legal advice. **Legal information** is general: "What does GDPR Article 6 say?" or "What are the typical elements of a breach-of-contract claim?" This is the kind of work that legal encyclopedias, textbooks, and research platforms have always done—and AI can do it faster. **Legal advice** is specific, strategic, and tailored to your facts: "Should we disclose this incident to our regulator?" or "Does our contract language protect us if the vendor fails?" Legal advice requires professional judgment, accountability, and usually a lawyer-client relationship. ## Privilege Depends on the Relationship, Not the Tool Attorney-client privilege protects confidential communications between a client and a lawyer, made for the purpose of obtaining or providing legal advice. It does not matter how "smart" the tool is. What matters is: 1. **Is the communication with a lawyer?** AI is not a lawyer. 2. **Is the communication confidential?** If you input sensitive facts into a consumer AI platform, the platform's terms may say your input is not confidential. 3. **Is the purpose to obtain legal advice?** If you are using AI to brainstorm or draft, that is useful, but it is not the same as consulting counsel. In the recent case *United States v. Heppner* (S.D.N.Y., February 2026), a federal judge ruled that a defendant's interactions with a public AI platform (Claude) were **not protected by attorney-client privilege**—even though the defendant later shared the AI outputs with his lawyers. The court emphasized that privilege requires a confidential communication with counsel, and that did not exist here. ## What This Means for Boards and Executives If you use AI to think about legal questions, that can be valuable. But: - **Do not assume your prompts are confidential.** Check the platform's terms. Consumer tools often say user inputs are not confidential and may be used to train the model. - **Do not assume privilege.** If you need privileged advice, talk to a lawyer. If you need brainstorming or issue-spotting help, AI can do that—but do not confuse the two. - **Do not rely on AI for final legal judgment.** AI can draft, summarize, and explain, but it cannot assess risk, weigh trade-offs, or take professional responsibility for the advice. ## Three Questions for Oversight 1. **Inventory**: Where in the organization are people using AI for legal research, contract drafting, or compliance work? 2. **Guardrails**: Do we have a policy that defines safe use (e.g., no privileged facts, no client names, no litigation strategy into consumer tools)? 3. **Verification**: For any AI-assisted legal output, who is responsible for verifying accuracy and completeness? --- **Do you use AI for legal research, drafting, or risk screening?** I deliver board-level courses and consult on AI strategy, governance, and legal risk. [Contact me](https://goldmanmalka.com/about). --- ### Relevant Sources 1. **United States v. Heppner, No. 1:25-cr-00503-JSR, Order (S.D.N.Y. Feb. 17, 2026)** — U.S. District Court, Southern District of New York — [https://jlellis.net/wp-content/uploads/2026/02/USA-v-Heppner-Order-2026-02-17-AI-Not-Privileged.pdf](https://jlellis.net/wp-content/uploads/2026/02/USA-v-Heppner-Order-2026-02-17-AI-Not-Privileged.pdf) 2. **The Intersection of AI and Attorney-Client Privilege—A Cautionary Tale** — Ogletree Deakins — [https://ogletree.com/insights-resources/blog-posts/the-intersection-of-ai-and-attorney-client-privilege-a-cautionary-tale/](https://ogletree.com/insights-resources/blog-posts/the-intersection-of-ai-and-attorney-client-privilege-a-cautionary-tale/) 3. **Your AI Conversations Are Not Privileged: What a New SDNY Ruling Means for Every Lawyer and Client** — Jones Walker LLP — [https://www.joneswalker.com/en/insights/blogs/ai-law-blog/your-ai-conversations-are-not-privileged-what-a-new-sdny-ruling-means-for-every.html](https://www.joneswalker.com/en/insights/blogs/ai-law-blog/your-ai-conversations-are-not-privileged-what-a-new-sdny-ruling-means-for-every.html) 4. **AI, Privilege, and the Heppner Ruling: What the Court Actually Held—And How to Structure AI Use Safely** — Venable LLP — [https://www.venable.com/insights/publications/2026/02/ai-privilege-and-the-heppner-ruling-what-the-court](https://www.venable.com/insights/publications/2026/02/ai-privilege-and-the-heppner-ruling-what-the-court) 5. **Use of Generative AI in the Law: Lessons from Two Federal Cases** — American Bar Association — [https://www.americanbar.org/groups/litigation/resources/newsletters/privacy-data-security/generative-ai-in-the-law/](https://www.americanbar.org/groups/litigation/resources/newsletters/privacy-data-security/generative-ai-in-the-law/)