The Growing Prevalence of AI Tools Requires Extra Effort to Protect Confidential Communications
The rise of artificial intelligence (AI) is rapidly changing all facets of technology. While AI tools can offer convenience and utility, users should be careful to protect private communications and preserve confidentiality.
The Rise of Videoconferencing and AI Note-Takers
Since the pandemic, many law firms and other businesses have embraced videoconferencing as a means to facilitate remote work, reduce travel expenses, and improve communications with clients and customers. This, coupled with advancements in AI language models, has spawned a new industry of virtual assistants that can quickly transcribe meetings, summarize discussions, and perform many of the tasks that might have otherwise been performed by a human secretary or law clerk. While these new tools promise efficiency and cost savings, one should be cautious to protect privileged communications when employing such technology.
For example, products such as Zoom AI Companion or similar note-taking software can transcribe meetings in real time and quickly provide a transcript of everything that was said. This has obvious advantages, but one must consider whether it is wise to use such products during confidential meetings with attorneys, doctors, or others subject to privilege.
Does the Use of an AI Assistant Waive Attorney-Client Privilege?
As the United States Supreme Court has recognized, the attorney-client privilege “is one of the oldest recognized privileges for confidential communications,” and its existence “encourages clients to make ‘full and frank’ disclosures to their attorneys, who are then better able to provide candid advice and effective representation.”[1] The privilege can be waived, however. One common example of waiver occurs when a third-party is present during communications between an attorney and his or her client.[2] By sharing their discussions with an outsider, the client has impliedly waived the privilege.
Given this precedent, one may wonder whether the use of an AI assistant constitutes a waiver of privilege. The answer may depend on how the software operates, and how any information is disseminated.
In Colorado, the attorney-client privilege is codified by statute, and this statute expressly provides that the privilege extends to the attorney’s “secretary, paralegal, legal assistant, stenographer, or clerk.”[3] Thus, merely having a “robot” assistant in the room is probably not alone sufficient to constitute a waiver.
If the virtual assistant uses a generative AI process, however, that presents a more complicated question. Many current AI products study user content to train themselves to improve their language abilities and offer better insight in the future. If the AI system retains records of an attorney-client conversation in its database, courts could deem this a voluntary disclosure of the confidential communications sufficient to waive privilege. Thus, before using any AI products in a legal environment, both attorney and client should be certain that the system is firewalled from the outside, and that all information remains protected in a secure database.
The same is true for open source products such as ChatGPT. While these can be useful drafting tools, they should not be entrusted with confidential communications, since uploading private information to public servers could constitute a waiver of privilege.
The Existence of an AI Transcript May Invite Challenge
There is also a more practical concern in creating recordings or verbatim transcripts of confidential meetings.
In the 2018 case of Fox v. Alfani, the Colorado Supreme Court considered whether a stroke victim had waived the attorney-client privilege by having her parents attend a meeting with her lawyer.[4] Although the ultimate holding turned on the question of whether the parents’ presence was objectively necessary due to the client’s disability, the context of the case is significant: The case only arose because the lawyer had made an audio recording of the meeting for his own use, which prompted the opposing parties to demand production of the recording.
Had the lawyer in Fox simply made written notes about the meeting and his own mental impressions of what the parents and their daughter said, these notes almost certainly would have been protected as attorney work-product.[5] It was only due to the existence of the audio file that the case reached the state supreme court. By the same token, if an attorney uses an AI assistant to transcribe a client meeting, he or she may be creating a neutral record analogous to the recording in Fox. And while the creation of a meeting transcript should not result in waiver per se, its mere existence may lead to costly motion practice and invite challenges to privilege that might not otherwise arise. This warrants caution when using AI programs to transcribe attorney-client meetings.
In sum, new AI technology brings both advantages and risk, and parties should use care when navigating our modern world. As always, the best approach is to consult with qualified legal counsel, and please contact Frascona, Joiner, Goodman and Greenstein, P.C. with specific questions.
[1] Mohawk Industries, Inc. v. Carpenter, 558 U.S. 100, 108 (2009).
[2] See, e.g., Fox v. Alfini, 432 P.3d 596, 600 (Colo. 2018).
[3] Colo. Rev. Stat. § 13-90-107(1)(b). Other sections of this statute codify historic privileges afforded to spouses, clergy, physicians, accountants, and certain other professionals.
[4] Fox, supra n.9.
[5] See id. at 604 (Hood, J. concurring).
