Court Rules AI Conversations Are Not Privileged: What United States v. Heppner Means for You
On February 13, 2026, Judge Jed S. Rakoff of the U.S. District Court for the Southern District of New York issued an opinion addressing whether non-attorney communications with a generative AI platform are protected by the attorney-client privilege or work product doctrine. Judge Rakoff ruled that they are not.
Immediate Implications of the Ruling
This ruling has two immediate implications for anyone who uses AI tools such as ChatGPT, Claude, Gemini, or similar platforms in relation to legal or regulatory issues:
- No Attorney-Client Privilege: Judge Rakoff held that since AI tools do not hold law licenses, communications with them are by definition not lawyer-client communications.
- Loss of Privilege: Even otherwise privileged communications will lose their privileged status if shared with public AI tools.
The Case: United States v. Heppner
In the case of United States v. Heppner, the defendant—a senior executive indicted for securities fraud—used Claude, Anthropic’s publicly available AI assistant, to analyze his legal situation and outline defense strategies on his own initiative, without direction from his attorneys. During a search of Heppner’s home, the FBI seized approximately 31 documents memorializing these AI conversations. Heppner moved to exclude the documents, arguing they were protected by attorney-client privilege and work product doctrine. Judge Rakoff rejected both arguments.
Key Holdings
No Attorney-Client Privilege
The court found that communications with an AI chatbot are not protected by the attorney-client privilege for several reasons:
- AI is not an attorney: Claude cannot form an attorney-client relationship with a user.
- No reasonable expectation of confidentiality: Anthropic’s privacy policy allows for the collection of user data, which could be disclosed to third parties, including governmental authorities.
- Inputting privileged information waives the privilege: Feeding advice received from counsel into a public AI tool is akin to disclosure to a third party.
- Privilege cannot be created retroactively: Non-privileged communications do not become privileged upon being shared with counsel.
No Work Product Protection
The court also rejected the defendant’s work product argument:
- No counsel direction: Work product protection applies only to materials prepared under counsel’s direction. Heppner generated the AI documents independently.
- AI is not an attorney: The AI documents did not reflect the strategy and mental impressions of counsel.
- Affecting strategy is not the same as reflecting strategy: The documents must reflect legal counsel’s strategy at the time they were created.
Key Takeaways
Based on this ruling, several key takeaways emerge:
- No one should input work product or privileged information into public AI tools. Assume anything typed could be discovered and used against you.
- Non-lawyers should avoid using even private AI tools for legal advice or analyses, as queries and responses are likely discoverable.
- Understanding the difference between consumer and enterprise AI is crucial; negotiated confidentiality terms may present different scenarios.
- Treat AI-generated analysis as discoverable; documents from AI conversations may be seized or subpoenaed.
Additional Considerations for Companies and In-House Counsel
Companies should implement or update AI usage policies to protect confidential information:
- Protect internal investigations from potential privilege compromises.
- Document directives from counsel during litigation preparation.
- Advise senior leadership against using AI for legal analysis without protections.
- Evaluate enterprise AI tools carefully, ensuring confidentiality agreements are in place.
The Bottom Line
The ruling in United States v. Heppner serves as a cautionary tale regarding the risks of using AI tools to analyze legal issues. Generative AI tools are powerful, but public versions are not confidential channels. Anyone involved in legal matters should treat these platforms with caution and take steps to protect privileged and confidential information.
