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:
- Is the communication with a lawyer? AI is not a lawyer.
- 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.
- 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
- Inventory: Where in the organization are people using AI for legal research, contract drafting, or compliance work?
- Guardrails: Do we have a policy that defines safe use (e.g., no privileged facts, no client names, no litigation strategy into consumer tools)?
- 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.
Relevant Sources
- 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
- 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/
- 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
- 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
- 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/