people point out in sibling comments that is phone call then be out of client-attorney privileges? since it goes through a "3rd party"? maybe not the call itself but the voicemail for example. can it be "extracted" for the same purpose?
another point to make it safer would be sharing the "chat" with the lawyer, this way it becomes media of communication.
> another point to make it safer would be sharing the "chat" with the lawyer, this way it becomes media of communication.
This guy made the same argument, but as the court detailed, this is a misunderstanding of attorney-client privilege. Sharing an unprivileged conversation with your lawyer doesn't make it privileged. A phone call to your lawyer is privileged, but a phone call to your cousin Jimbo about what you should tell your lawyer is not.
Well, what type of phone call? You mean a phone call between a lawyer and a client? If so, then, of course it is protected, because it is communication between the lawyer and the client. It is not a good analogy for Claude chats because those chats are not communication between a laywer and a client.
The concept of sharing the chat with the lawyer will not work, since as the ruling points out, you cannot turn a non-privileged document into a privileged one by sharing it with your lawyer after the fact.
I don't think it's communication at all. Instead, I think it's a kind of lookup. Dealing with an LLM is searching a database. You are looking up legal texts in order to prepare legal arguments.
I think the principled way of treating this is that it's privileged for the purpose of preparing legal arguments, but not privileged in general. I think this can be supported using the existing law.
Presumably a lawyer's Google searches with terms like "what article is X" etc. are privileged too, since they are used for preparing legal arguments. That it uses AI doesn't suddenly make it communication.
Reading the decision, they seem to say that online word processing software would be viewed similarly, since the TOS may allow Google to see your data, it is not confidential, so use of Google Docs or Gmail would not be considered privileged?
> you cannot turn a non-privileged document into a privileged one by sharing it with your lawyer after the fact.
Surely this is how all async communication with a lawyer works though? Or are gmail drafts privileged if you can make a case that it was going to be sent to your lawyer? Is a letter at your house privileged if you can make a case that it was going to be sent to your lawyer?
Lawyer here: So first, while this entire comments section seems to treat privilege as if their is a single universal corpus of law around it, their isn't. Federal and and state courts do different things here. Each state does different things than other states.
It's therefore practically hard to give a useful answer to your questions. There are states and courts that don't recognize drafts as privileged. There are states that do as long as they are created for the purpose of seeking legal advice. There are states in between.
Also keep in mind the main goal of this kind of privilege is to ensure people seek legal advice, and feel comfortable doing so, before they do something that’s going to get them into trouble. it does protect your ability to prepare a defense, and that sort of thing,but if you do a thing after you email your lawyer and the lawyer says "that is a horribly illegal idea", privilege isnt really there to help you, even if that particular email often happens to be privileged. It's there to help society, not keep you from having to pay damages. For example, Companies overuse lawyers in things like clean up after security incidents - very little of that will be actually privileged from discovery no matter how many lawyers got involved.
All that said general advice is to ensure drafts are deleted after being sent.
The only real common thing in this area of law is that the party trying to withhold the document bears the burden of showing it is privileged.
> It is not a good analogy for Claude chats because those chats are not communication between a laywer and a client.
How is it not? I get that a chatbot is not a person with rights. And NAL.
But for all intents and purposes, it is a communication about legal advice. The way a lot of people use it is legal advice. They will continue to use it that way.
So for the law to then turn around and say that it's evidence that will be used against them is kind of messed up. It means confidentiality of your case is bought by paying a lawyer for legal protection, not because you actually need their advice over a chatbot's.
It's not a communication with a lawyer, though. Asking a guy on the street if it's illegal to sell the meth you have in your pocket is not privileged communication, and he could definitely testify about that after you got arrested!
Repeating something that you heard someone say is the literal definition of hearsay. Typically courts want to hear about facts from people who actually know those facts, not someone who heard someone talking about those facts.
This would fall under the "statement against interest" exception to hearsay, though, because obviously the person who originally said the thing isn't going to want to admit in court that they were committing a crime.
Reporting what you heard someone say is the literal definition of hearsay.
If you want to use someone saying something as evidence in court, they need to say it to the court as directly as is practical. If the person saying it isn't going to say it directly to the court, then it needs to be justified with one of the exceptions to the hearsay rule.
In this example, it would be allowed because the person saying it wouldn't be willing to admit to a crime in court.
It's a statement not offered to prove the truth of the asserted statement - non-hearsay.
It would be hearsay if offered as evidence that you had meth in your pocket. It would not if offered in evidence you were enquiring about the legality, to show intent.
It's not a communication if only one human person participates in the conversation. That's just enhanced note-taking and generating. I don't agree with the notion that talking to an LLM is disclosure to a third party because an LLM is neither a natural person nor even an artifical person recognized at law like a corporation, trust, LLC, etc.
The law has a concept of a "carrier" [1], and has the ability to judge whether or not the carrier in question is responsible for what it is carrying.
I'm not making a blanket statement that that means everything is a carrier, because a good chunk of the page I linked is devoted to endless legal nuances and I defer the details of the concept to those who know better. I'm just saying that the law has a well-established concept for this sort of situation, such that it is not the case that just because a third party is involved instantly all protections dissolve. If you really want to dig into the details, that's something an AI that hits the web and digests things would be pretty good at, as long as you're not planning on legal action based on that. Sometimes the hardest part of learning about something is just finding the term for it that lets you dig in.
another point to make it safer would be sharing the "chat" with the lawyer, this way it becomes media of communication.