Generative AI: Navigating the Minefield of Confidentiality and Privilege Risks for Attorneys

The advent of generative AI, a technology capable of learning from human queries and generating human-like text, has ushered in a new era of possibilities for legal practice. However, this powerful tool also presents significant risks to attorneys’ efforts to maintain the confidentiality and privilege of client information. This comprehensive exploration delves into the challenges and ethical considerations associated with using generative AI in legal practice while safeguarding client confidentiality and privilege.

The Threat of Public-Facing Generative AI Models

Public-facing generative AI models, such as the widely accessible ChatGPT, pose a tangible threat to confidential information. These models are trained on vast troves of data, including potentially sensitive legal information. This creates the risk that confidential information shared with the AI model by one client could be inadvertently disclosed to another client or even opposing counsel. For instance, a client seeking legal advice on a sensitive matter may unknowingly share confidential details with a generative AI model that has been previously trained on similar cases. This information could then be used by the model to generate responses or advice that inadvertently compromise the confidentiality of the client’s communication.

Confidentiality and Privilege: The Cornerstone of Legal Ethics

Confidentiality and privilege are fundamental pillars of the legal profession, protecting certain communications between attorney and client from disclosure to third parties. Confidentiality ensures that clients can communicate freely and openly with their attorneys without fear of their communications being disclosed. Privilege, on the other hand, is a legal doctrine that protects certain communications from being compelled in court or other legal proceedings. Disclosing confidential information to an outside party, including a generative AI model, can waive privilege, potentially exposing the communication to discovery by the opposing side during litigation.

The Duty of Supervision and Vendor Vetting

Attorneys have a duty to supervise technology tools used in their practice, including generative AI. Before incorporating any AI platform into their workflow, attorneys need to thoroughly vet the vendor, considering the following crucial questions:

• What type of confidential information will be uploaded to the tool?
• How is the information stored, and who has access to it?
• Does the company intend to gain ownership of the uploaded data?
• What safeguards are in place to preserve confidentiality?
• Where does liability fall in case of a security incident?
• Will the firm retain access to client data if the AI vendor is terminated or goes out of business?
• Will the vendor use the client’s information in anonymous or aggregate form to improve its system?

Attorneys should only use generative AI tools that provide robust security measures, clear terms of service, and a commitment to protecting client confidentiality. Additionally, attorneys should consider entering into non-disclosure agreements with vendors to further safeguard client information.

Litigation on the Horizon

As the use of generative AI in legal practice becomes more widespread, it is likely that questions regarding its implications on legal work will be litigated. Courts will need to consider specific use cases and examples to formulate guidance on how generative AI impacts confidentiality and privilege. For instance, a court may need to determine whether the use of a generative AI tool to generate legal advice constitutes the practice of law, which is typically reserved for licensed attorneys.

Lessons from the Past: Cloud Computing, Email, and Telephone

Concerns about confidentiality and privilege have arisen with the introduction of various technologies that have transformed attorney-client communications, such as cloud computing, email, and the telephone. However, over time, these concerns have generally been assuaged as the legal profession has gained a better understanding of how these technologies work and the security measures in place. As with these technologies, the legal profession will likely adapt to the use of generative AI, developing best practices and standards to protect confidentiality and privilege.

Conclusion

The emergence of generative AI presents both opportunities and challenges for the legal profession. While generative AI offers powerful capabilities that can enhance legal research, drafting, and analysis, attorneys must remain vigilant in protecting confidential client information. Avoiding public-facing models, informing clients when using generative AI, and carefully vetting vendors are essential steps in mitigating confidentiality and privilege risks. While generative AI offers the potential to revolutionize legal practice, it is imperative to proceed with caution and ensure that the ethical considerations and potential legal implications are fully understood and addressed.

As generative AI continues to evolve, attorneys must remain at the forefront of this rapidly changing landscape, adapting their practices to leverage the benefits of this technology while safeguarding the confidentiality and privilege that are fundamental to the attorney-client relationship.