As the use of artificial intelligence expands, hard lessons are being learned in how to use it, and not.
In a federal criminal case in the Southern District of New York, the defendant loaded materials he had received from his attorney into Claude, the AI platform operated by the company Anthropic. He did this on his own, not at his attorney’s direction.
Subsequently, the government obtained a search warrant and among other things, searched the defendant’s computer and electronic devices. The AI inputs and responses were found. The defendant argued that the prosecution should not have access to this material because of attorney client privilege and the attorney work product doctrine. The court held otherwise, for several reasons.
First, it has long been the rule that attorney-client privilege will be lost if the client discloses privileged or confidential information to a third party. In this case, the third party was not a person, but Claude. Claude’s policies make it clear that information input will be used for model training, data collection, and other purposes. Rather than guaranteeing privacy and confidentiality, the policies state just the opposite. Even though almost no one ever reads those policies, users are charged with knowledge of them.
Second, Claude was not an attorney. Even if the defendant used Claude to obtain legal advice, he was not seeking that advice from a licensed attorney with ethical obligations of confidentiality and fiduciary duty. Also, Claude’s policies expressly state that it is not providing legal advice.
Third, the attorney work product doctrine did not apply because the defendant did not use Claude at the direction of his attorney. Instead, he did it of his own volition. Also, the responses that Claude generated were not the work of an attorney.
The lesson here is to be very careful about using artificial intelligence. Assume that whatever you input will be broadcast to the world, and possibly even used by your competitors or adversaries.
This is not intended to be legal advice; you should contact an attorney regarding your specific situation.
Gary M. Schuster is a partner at J&G Law concentrating in business and nonprofit areas of law. He can be reached by phone at (845) 764-9656 or by email.