THE GREENE ROOM
As generative AI seamlessly integrates into everyday workflows, traditional legal safeguards face an unprecedented stress test. Following a landmark federal court decision, commercial finance attorney Ken Greene explores the evolving boundaries of confidentiality and examines when legal applications and AI-driven platforms cross the line into discoverable corporate evidence.
In my last article, I wrote about a recent case from New York called United States v Heppner, in which the federal court declined to find that communications between a criminal defendant and ChatGPT, made for the purpose of seeking legal advice, were not privileged. The case itself wasn’t really a surprise, but it did portent significant shifts in the availability of one of the most sacrosanct privileges in the American jurisprudence canon.
It’s no secret that almost every person in the United States uses some form of artificial intelligence, whether it’s for legal or medical advice, cooking, home repair, fashion information, sports betting and everything else you can imagine. Nor should it come as a surprise that attorneys use AI. Judges continue to admonish and sanction lawyers who use “ghost citations” or “hallucinations”, meaning references to cases or other legal authorities that are non-existent. I doubt anyone would differ with those judges, as that is no way to practice law.
Heppner was correctly decided because there was no attorney involved in the communications between Heppner and “Claude”, the ChatGPT bot. But what if a lawyer “communicates” with Claude. Is that communication discoverable? What if an attorney uses a “legal” app, like Legal Zoom or Thomson Reuters’ CoCounsel? Are those communications discoverable? Privileged? The answer, of course, is “it depends”.
One of the rationales behind the ruling in Heppner was that Anthropic’s terms of service stated specifically that the company collects data input by users and utilize that data to train its AI model. That means the data was not confidential. Since an attorney-client communication must be confidential to be afforded the attorney client privilege, Heppner’s claim of privilege was denied. However, other apps, like CoCounsel, Legal Zoom and Google’s business version of Gemini, have privacy terms that differ from ChatGPT, and reportedly do not utilize user data. That issue could be a pivotal in future court decisions.
As an interesting aside, the legal profession is not alone in this brave new world. In a recent a case in Pennsylvania, the Commonwealth sued the AI platform Character.AI, accusing it of the unauthorized practice of medicine. Here, the chatbot “Emile” acted as a psychiatrist, and even told the state investigator communicating with it that she/it could prescribe medication! The case is still pending, but it is already clear that this is exactly the kind of problem that is going to bring about changes in the legal, medical and business landscapes for years to come.
Ken Greene is the principal of the Law Offices of Kenneth Charles Greene, specializing in corporate compliance, commercial lending, leasing, and equipment finance law. A veteran legal voice in the commercial finance industry, he writes The Greene Room column for MonitorDaily, where he regularly analyzes state licensing requirements, legislative updates, and emerging regulatory trends. With decades of experience advising brokers, funders, and lessors, Greene focuses his practice on helping financial entities navigate risk, protect critical corporate assets, and adapt to the legal complexities of digital transformation and modern technology.
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