It is well known that communications between an individual and their lawyer are, by default, subject to solicitor-client privilege. This is a rule of law which generally protects communications between lawyers and their clients involving the seeking or giving of legal advice, from court procedures that would otherwise require the disclosure of relevant information from one side to the other in legal proceedings.
In criminal prosecutions, for example, this confidentiality allows an individual to tell their lawyer exactly what happened – their lawyer can then prepare a full defence, without the fear that those communications will be used against them by the prosecution. The same is true in the context of civil litigation.
Solicitor-client privilege generally extends to any communication between an individual and their lawyer which involves the giving or seeking of legal advice, including phone calls, emails, and in-person conversations. There are exceptions to the rule, but they are very narrow.
Earlier this year, in the case of United States v. Heppner, the Court of the Southern District of New York was tasked with determining whether solicitor-client privilege also extends to communications between an individual and their AI model of choice.
In anticipation of being charged with a number of serious financial crimes, Bradley Heppner consulted with Claude, a generative AI program developed by Anthropic. Heppner inputted the details of his case, asked Claude to conduct research, outline a defense strategy, and anticipate the legal strategy of the prosecution. Heppner intended to use the documents created by Claude to facilitate a discussion with his legal counsel.
Later, when Heppner’s computer was seized by the police, the government gained access to all communications between Heppner and Claude.
Heppner argued that these communications were protected by solicitor-client privilege, as if he had been talking to his lawyer directly. The court disagreed, finding: (1) confidentiality only exists between a client and their (human) lawyer; (2) Heppner had no reasonable expectation of privacy over these communications, as Anthropic’s Privacy Policy clearly states that inputs and outputs may be shared with other third parties, including for the purposes of legal proceedings; and (3) Heppner did not communicate with Claude for the purpose of obtaining legal advice, as Claude tells users that it is “not a lawyer and can’t provide formal legal advice or recommendations”.
For Heppner, this decision was bad news. Anything he said to Claude (to quote any crime movie) can and will be used against him in a court of law.
While decisions of US courts are not binding in Canada, they can provide insight into the way that Canadian courts may apply and interpret the law when posed with a similar legal issue. This is a legal issue which has not yet been addressed in Canada, and it remains to be seen whether Canadian courts will agree with the findings of the Court for the Southern District of New York.
Until then, we recommend that individuals take care when consulting with AI about legal issues. Treat AI with the same discretion you may treat a Google search – know that Google might see it, your internet service provider might see it, and the judge at your trial might see it. If you need to discuss sensitive legal issues, call a lawyer (and assume that anything you input into an AI model may be subject to disclosure under court proceedings which involve these issues).
If you have any questions about solicitor-client privilege or the legal implications of using AI, please contact the writers at:
Andrew Buck
Partner
204.956.3569
[email protected]
Noah Scatliff
Lawyer
204.956.3517
[email protected]
Note: This article is of a general nature only and is not presented as a comprehensive review of the law or as being exhaustive of all possible legal rights or remedies. This article is not intended to be relied upon or taken as legal advice or opinion. Readers should consult a legal professional for specific advice applicable to their own circumstances. We do not undertake any obligation to update this article to reflect changes in law that may occur in the future.