Can Using GenAI Hurt Your Legal Case?
Summary of Key Points
- Using generative artificial intelligence (GenAI) can destroy confidentiality.
- If the information is part of an attorney-client communication, loss of confidentiality may also waive attorney-client privilege.
- Using GenAI to develop case strategy may also undermine work product protection.
- When in doubt, ask your attorney before entering legal information into any GenAI tool.
While generative artificial intelligence (GenAI)—such as ChatGPT, Perplexity, Grok, Claude, and more—is an incredible tool, clients should be careful about what they put into it. In some situations, a client’s inputs may ultimately harm their case, deal, or transaction.
Using GenAI in connection with legal matters can create several different problems. It can affect whether information remains confidential, whether attorney-client communications stay privileged, and whether litigation-related materials remain protected as work product.
Confidentiality
The concern about confidentiality when using GenAI includes practical questions such as where information is being stored, who can access it, whether it is being retained, and whether it is being used to train a model or otherwise reviewed outside the intended audience. Those issues matter for proprietary business information, trade secrets, and information subject to a nondisclosure agreement or other confidentiality obligations.
If a GenAI tool is not sandboxed (kept isolated so the information is not used, reviewed, retained, or shared outside that closed environment), a user should not assume the information remains confidential. For example, if someone inputs confidential information covered by a nondisclosure agreement into a GenAI tool, there is an argument that such input was a “violation” of confidentiality.
Attorney-Client Privilege
It is a common misconception that everything between a client and an attorney is protected by Attorney-Client Privilege—it is not. Attorney-Client Privilege is a narrower and heightened protection for confidential communications between attorney and client made for the purpose of legal advice. This matters because privileged communications generally cannot be forced into discovery or introduced in court. For example, an email you send to your attorney (and their legal staff)—without anyone else copied—for the purpose of legal advice is generally protected.
Attorney-Client Privilege depends on confidentiality, so while sharing sensitive or confidential information with a GenAI tool creates a confidentiality concern (as discussed above), if the information is an attorney-client communication (an email, memo, or letter from your attorney), sharing it with a GenAI tool may also waive Attorney-Client Privilege.
Work Product Doctrine
The Work Product Doctrine protects the collaborative parts of the attorney-client relationship. It matters because materials protected as work product are harder for the other side to obtain and use in litigation. It applies to documents prepared for litigation when an attorney prepares the document or directs someone else to prepare it, regardless of whether litigation has already started. For example, while preparing to file a lawsuit, an attorney may direct a client to draft an outline of the facts being litigated. That outline is protected by the Work Product Doctrine.
Now say you enter pieces of your outline into ChatGPT to generate strategy ideas. Both your input and ChatGPT’s output may become evidence the other party can access because no attorney directed you to create that GenAI-generated material.
The equation might be different if an attorney directs you to use GenAI. Might. Courts have left the door open on that question so far, and we expect it will eventually be addressed. But it is rarely a good idea to test unanswered questions in court.
I want to use GenAI though, so what should I do?
For now, the safest assumption is simple: if you enter information into a GenAI tool, do not assume it remains confidential. That alone can create problems for proprietary information, trade secrets, information bound by a nondisclosure agreement, and other material that depends on being kept confidential. And if the information is part of a confidential attorney-client communication, loss of confidentiality may also waive Attorney-Client Privilege. Separately, using GenAI to develop litigation strategy may undermine the Work Product Doctrine and give the other side access to material they otherwise may not have been able to obtain or use in court.
Ask your attorney before uploading or prompting any legal information, strategy, or communication into a GenAI tool. And if you need help understanding your attorney or need something explained differently, tell them. After all, we are here to help you.
Caitlin Riordan
Caitlin is a member of the Business section at McCarty Law where she works on entity formation, commercial transactions, and contract review. She has additional interest in appellate practice and intellectual property but also loves learning new fields of law.