Third-Party Apps and Attorney-Client Privilege

With AI becoming an important part of everyday life, you may want to think twice before consulting a third-party application for legal advice about your specific matter. 

Attorney-client privilege refers to the protection of communications between an attorney and their client, keeping these items confidential between the two parties and preventing the disclosure of those communications to third parties, even during discovery or in response to a subpoena.

This protection is meant to foster an open and honest line of communication between an attorney and client. However, if this privilege is waived, courts may not allow parties to reclaim it, even if it was accidentally waived through the misunderstanding of technology. 

AI is an example of a type of technology where one may unknowingly waive attorney-client privilege. This is largely due to how the information is entered, stored, reviewed, or utilized by this third party. Under Florida Evidence Code § 90.502, privilege is waived if communications are disclosed to a third party, unless that party is “reasonably necessary” to transmit the communication.

Examples of Third-Party App Risks

• Voluntary Disclosure: Sharing case details or attorney emails on apps, such as social media

• Terms of Service: Public AI platforms, messaging apps, and cloud hosts typically state that user data is stored or analyzed in some way. By entering confidential information into these platforms, you are effectively sharing information with a third party, voiding the right to privacy, and waiving privilege protections that may be available to you in the process

• No Agency Exemption: Third-party app developers are not considered agents facilitating legal advice, unlike a paralegal or expert witness

Examples of When Privilege is Not Waived

• Authorized Transmission: Utilizing services that are necessary to facilitate the legal consultation, such as transcribers, secure legal tools, interpreters, etc.

• Attorney-Approved Support: Use of AI tools or internal software, if the attorney can ensure the privacy settings function on a closed-loop system and review the material in detail

While there are many perks to utilizing AI, users should proceed with caution when it pertains to their legal matter. For example, when it comes to data privacy policies, an AI transcription or note-taking application may retain or use your data to train its models, making the communications no longer confidential and waiving attorney-client privilege. Additionally, cloud-stored transcripts can be susceptible to data breaches or can be accessed by unauthorized individuals.