AI, Privilege, and the Rise of “DIY Legal Advice”

From discovering new recipes to researching your next trip or major purchase, AI is increasingly woven into everyday life—and the legal world is no exception. Clients are now turning to AI tools like ChatGPT to explore legal questions and gather information before ever speaking with a lawyer.

This represents the latest step in the evolution of access to legal information. Not too long ago, answering a legal question meant going to the library and opening a book. The Internet made information far more accessible. Today, AI can provide instant guidance on a limitless range of legal issues, creating a whole new frontier for legal ethics and professional responsibility.

The Heppner Case and Client Use of AI

The growing use of AI by clients recently came to light in United States v. Heppner. In that case, a litigant used a free public AI chatbot to analyze legal issues in his insurance dispute. He input detailed information about his claim and asked the system to suggest possible legal arguments. 

When the matter proceeded to litigation, the opposing party sought access to those communications during discovery. The court considered whether the interactions were protected by attorney-client privilege. Because they involved an AI system rather than a licensed attorney, the court concluded that the protections of attorney-client privilege did not apply.

Heppner has drawn significant attention for its broader implications. Legal reasoning is increasingly taking place within AI systems, and this is challenging longstanding assumptions about confidentiality. Even when clients treat AI tools as a private research assistant, courts may view those interactions as ordinary communications that are subject to discovery.

For lawyers adapting to the rapid rise of AI tools, the takeaway from Heppner is understanding how privilege, confidentiality, and professional judgment operate in an AI-enabled legal environment.

AI as the Client’s First Stop

Heppner confirms that AI tools are no longer confined to internal law firm workflows; they are often the first resource clients turn to for their legal problems. Clients may ask AI to summarize statutes, evaluate arguments, or explain potential litigation strategies, all without contacting a lawyer. The widespread use of generative AI has effectively created a new category of informal “legal consultation.”

From a user perspective, this behavior makes sense: AI tools are fast, inexpensive, and available 24/7. Moreover, their responses sound authoritative and seem reliable.

From a legal perspective, however, these interactions can be risky. Communications with AI are fundamentally different from communications with counsel. They may be stored, processed, or analyzed by third-party providers, and—as Heppner demonstrates—courts may treat them as ordinary communications rather than privileged legal advice. What feels like a private brainstorming session could later become discoverable evidence.

No Automatic Attorney-Client Privilege

Attorney-client privilege only applies to confidential communication between a client and a lawyer for the purpose of obtaining legal advice. AI throws a wrench into this established framework. 

When a client enters legal questions into a public AI system, they’re communicating with a third-party technology platform—not a lawyer. The communications then become subject to the platform's terms of service, which might allow providers to retain or analyze user inputs. Sharing legal strategies or sensitive information in this way could thus leave the client exposed.

When Research Becomes Evidence

Consider a trademark law scenario. An entrepreneur preparing to launch a new brand asks a public AI chatbot whether a proposed name conflicts with an existing trademark. To get the most useful feedback, they describe their business plans in detail—the industry they’re entering, the markets they plan to target, and the competitors they’re eyeing.

To the entrepreneur, this is simply preliminary research. But if a dispute later arises, such as an infringement claim or  trademark opposition, those AI conversations could be used as evidence, revealing what the entrepreneur knew and considered. Had the same communications occurred with a lawyer, they likely would have been privileged and the entrepreneur would be protected.

Advising Clients and Managing AI Risk

These developments signal that lawyers’ roles are evolving. Traditionally, lawyers advised clients on risks related to documents, communications, and disclosure. But in today’s AI-infused landscape, that guidance must also cover how clients engage with technology.

Clients may not realize that public AI tools can undermine confidentiality. While AI can be useful in explaining concepts or organizing questions prior to consultation, lawyers should clearly outline its limitations.

The widespread use of AI also creates governance challenges for attorneys. Many organizations, including law firms and in-house teams, use AI as a productivity tool to summarize documents, draft materials, or analyze large volumes of information. In this context, implementing thoughtful guardrails is essential. Policies should clearly define: 

• when AI tools can be used, 

• what information can be entered into external systems, and 

• which platforms meet confidentiality and security standards.

These guidelines help ensure that AI supports legal work without creating unintended risks. 

Closing Thoughts

The legal profession is still in the early stages of AI adoption. Much of the conversation has focused on capability. The next phase will be strategic: how AI tools are integrated into workflows, professional standards, and client relationships.

Heppner v. State Farm Mutual Automobile Insurance Company underscores that the context in which AI is used matters just as much as the technology itself. For IP and trademark professionals in particular, the stakes are especially high. Early brand development, clearance analysis, and enforcement strategy often involve sensitive business information. Using public AI systems for these discussions may create records that later become evidence.

As AI becomes a routine part of legal problem-solving, lawyers will play an essential role in guiding its responsible use—helping clients benefit from new tools without compromising confidentiality and strategic advantage.