Article by Roodepoort Attorney: LEON WOLLNIK
The recent decision in United States v Heppner highlights the limits of attorney-client privilege in the context of consumer AI tools. The court ruled that documents created by a defendant using Anthropic’s chatbot “Claude” were not privileged, reasoning that an AI is not a lawyer, owes no duty of loyalty, and cannot establish a confidential attorney-client relationship.
Because the platform’s terms allowed disclosure and data use for training, the communications lacked confidentiality. The work product doctrine also failed, as the defendant generated the documents independently rather than at his lawyer’s direction.
South African courts would almost certainly reach the same conclusion, given precedents such as Thint v NDPP, which require that privilege attach only to communications with admitted legal advisers acting professionally, made in confidence, and for the purpose of obtaining legal advice.
However, AI and privilege are not inherently incompatible. When lawyers use enterprise-grade AI platforms with contractual confidentiality protections, the AI functions merely as a tool within the attorney-client relationship, preserving privilege.
Similarly, privilege or work product protection may apply if a lawyer directs a client to use a secure tool for litigation preparation.
Beyond privilege, the broader duty of confidentiality under the Legal Practice Act remains paramount: practitioners risk breaching this duty if they input client information into consumer AI platforms without safeguards. The conversational interface of such tools creates a misleading sense of privacy, but unless confidentiality is contractually guaranteed, users are effectively disclosing information to a third-party system. One must ensure every tool one uses meets professional standards of confidentiality and privilege, rather than assuming that AI conversations are protected.
For more information, please visit our website wollnikattorneys.co.za, email us at Send email or give us a call on 011 793-4367 or Business WhatsApp: 082 773 1053
