Your client is using ChatGPT. Is privilege at risk?

The Law Times recently spoke to Thomson Rogers LLP partner, Robert Ben about a recent court decision in the United States regarding the use of AI tools by clients seeking legal advice.

What Canadian lawyers should know about solicitor-client privilege and consumer AI tools

Earlier this year, in United States v. Heppner, a man charged with securities fraud used an AI chatbot to seek legal advice. A federal court in New York ruled he waived privilege when he entered confidential information into the tool.

What does that mean for Canadian lawyers? Robert Ben says the decision is not necessarily a warning shot north of the border.

“Heppner effectively adopted a de facto bright line rule which says, if you’re using consumer AI, that amounts to waiver of privilege,” he explains. “That’s inconsistent with how privilege law actually works and would likely be applied in Canada. Here, it’s a more functional and less formalistic analysis. It’s not about categories as much as answering the question, what is the tool being used for?”

Bottom line: Be cautious until Canadian courts weigh in

Until Canadian courts provide clearer direction, Ben suggests lawyers be cautious.

“I don’t want to sound unnecessary alarm bells because the Canadian courts, I expect, would take a more functional and practical approach than we see in Heppner,” Ben says. “If the dominant purpose of the communication, tool aside, was for the litigation, it should attract privilege. But as lawyers, we need to err on the side of caution.”

Read the full article in the Law Times.

AI Chatbots in legal practice

Robert Ben recently wrote about the use of AI chatbots in legal settings, exploring:

• What legal privilege is
• Why privilege may not be preserved when using consumer AI tools
• What lawyers and clients can do moving forward

For the full set of insights, read the full blog.

Robert M. Ben is a Personal Injury Lawyer and a Partner at Thomson Rogers LLP. Robert is listed in peer-reviewed publications – Lexpert® and The Best Lawyers™ in Canada and is ranked AV preeminent in Martindale-Hubbell ®. Robert can be reached at 416-868-3168 or by email.