“Don’t Talk About Your Case While Litigation is Pending”: Still Sound Advice in the Age of A.I.

Lawyers have been telling clients not to discuss their case with third parties while litigation is still pending since just after the wheel was invented. It turns out that advice remains pertinent in the age of  A.I… for now.

As will be discussed below, recent court rulings have called into question whether certain uses of A.I. waives bedrock confidentiality protections, including those afforded to attorney/client communications.

This blog post will not address the wisdom, accuracy or shaky legal reasoning these recent rulings fall upon, but instead will provide simple no-nonsense guidance for clients as they enter the litigation world in the age of A.I.

Artificial intelligence is a powerful tool. Anything other than leaning into the type of technology wave that is clearly in front of us is a fool's errand.

  However, caution must be used to avoid integration outpacing practical application.

Recently, in United States v. Heppner (Southern District of New York), a court ruled that written exchanges between a litigant and a generative AI platform were not protected by attorney-client privilege or the work product doctrine. Of major concern is that, as written, the court’s opinion veers toward categorically excluding a client’s use of generative AI from attorney-client privilege.

The legal reasoning surrounding this case is of much debate between lawyers, law professors, academics, and nerds everywhere, including myself. However, legal blog posts are dry enough already and such pontifications are of little to no value to you, dear reader.

So, let’s not bury the lede here and get right to it.

Do not talk to AI about your case.

Most likely you’ve heard someone say (maybe on TV), “my lawyers told me not to talk about this case while it's in active litigation”. Turns out that advice extends into the age of A.I. Simply said, don’t discuss your case with others, or with A.I.

But I Was Just Trying to Understand My Case!

Understandable, and I have great news! Clients have at their disposal a living breathing “Actual Intelligence” resource to clarify the happenings of their case - their lawyer!

This blog’s attempts at humor aside, let me be clear: a lawyer must be able to explain the happenings of a case to you in a way that is digestible to a specific client. Crucial to the role of attorney is the title “counsellor at law.”

Counselling clients includes communicating the ideas, happenings, and logistics of a case in a way that any client can understand. The ability to do so effectively is a fundamental part of legal advocacy, and is bedrock for the level of communication needed for successful litigation

The Bottom Line

AI is not going away. Law firms are using it. Businesses are using it. Clients are using it. Courts are beginning to confront it.

But for clients involved in litigation, the practical guidance is clear:

Do not talk to AI about your case.

Not because AI is useless.

Not because every court will necessarily follow Heppner.

Not because every possible use of AI destroys privilege.

But because the risk is real, the law is unsettled, and the consequences can be severe.

Attorney-client privilege and work-product protection are not technicalities. They are central protections that allow clients to speak openly with counsel, prepare cases, evaluate risk, and defend their rights.

Those protections should not be jeopardized by a chatbot prompt.

For now, the safest rule is the oldest one:

Talk to your lawyer. Not the internet. Not your friend. Not your business associate. Not a public AI platform. Your lawyer.