The Use of AI – A Cautionary Tale
The original post of this first impression case is by Katie Gould at https://attorneyprotective.com/technology/united-states-v-heppner-ai-generated-documents-not-protected-by-the-attorney-client-privilege-or-work-product-doctrine
United States v. Heppner, No. 25-cr-00503-JSR (S.D.N.Y. Feb. 17, 2026). A defendant’s use of AI in connection with a pending criminal investigation is not protected by the attorney-client privilege or work product doctrine.
Bradley Heppner was indicted for securities fraud, wire fraud, conspiracy to commit securities fraud and wire fraud, making false statements to auditors, and falsifying corporate records. With his arrest, federal agents seized documents and electronic devices which including thirty-one documents memorializing communications that Heppner had with Claude, a generative AI platform (done without any input or request by his lawyer). The reports outlined defense strategies. Heppner used the AI platform after he received a grand jury subpoena and that he was the target of its investigation.
Dutifully, Heppner’s counsel asserted privilege over the AI documents. The Court held, however, that two (if not all three) elements of the attorney-client privilege were not present. Most importantly to the claim of privilege was that Claude is not an attorney. Claude’s privacy policy also permits the use of information entered in the platform to train the bot and allows disclosure to third parties (no expectation of confidentiality). Heppner used Claude for the purpose of talking to counsel but he did not do so at the request or direction of counsel, and providing the documents to counsel did not retroactively protect their contents.
The attorney work-product doctrine was not useful either as Heppner’s counsel admitted they were not prepared him nor did he request his client seek such information from Claude and also conceded that although the AI documents affected his strategy, they did not reflect his defense strategy when they were created.
There are several take-aways from this opinion and I encourage you to read Ms. Gould’s post at the link above.
More later . . ..
WDJiii