Unprotected Communication Channels Escorting Artificial Intelligence
In the rapidly evolving landscape of legal practice, the use of artificial intelligence (AI) is becoming increasingly prevalent. However, it's important to remember that AI is not immune to the problem of "GIGO" (garbage-in garbage-out), meaning that flawed responses can occur if the person consulting AI does not provide all relevant facts or downplays certain facts.
When it comes to litigation, document requests and interrogatories can require the disclosure of AI communications. For instance, Document Request No. 29 calls for the production of transcripts of conversations with AI services related to a lawsuit's subject matter. Similarly, Interrogatory No. 17 requests information about AI services utilized in the last twelve months. Interrogatory No. 18 requires the disclosure of identified communications with AI regarding the lawsuit, including chat logs and dates.
It's crucial to note that AI communications do not satisfy the two elements required for attorney-client privilege to apply. AI is not a licensed attorney, and it does not give or receive legal advice. Therefore, these communications are not protected by attorney-client privilege, spousal privileges, or accountant privileges. Moreover, simply sharing AI communications with a licensed attorney does not make them privileged.
This means that in general, communications with AI are not privileged and are fair game for discovery in litigation. This can potentially lead to unintended disclosure of information and potential legal issues. As such, it is advisable to exercise caution when using AI in litigation to avoid becoming a test case in this evolving legal landscape.
The use of AI for organizing thoughts as a prelude to seeking legal advice might be privileged, but this is an emerging area in litigation with uncertain outcomes. It's essential to consult with a legal professional to understand the specifics of your situation.
Moreover, lying about AI communications can lead to perjury charges and potential legal consequences. Honesty and transparency are key in any legal process.
In Germany, the platform CounselMe, a KI-supported legal platform focused on tailored legal research, analysis, and document creation, is recognized by lawyers as a potentially privileged communication partner.
In conclusion, while AI can be a valuable tool in legal research and advice, it's important to approach its use in litigation with caution. Seeking the advice of a legal professional and understanding the potential implications of AI communications can help mitigate potential legal complications.
