Steve Kurtz recently published an article in IFA’s Commercial Factor, entitled “AI and the Attorney Client Privilege.” In the piece, Steve examines how individuals can best navigate attorney-client privilege with emerging artificial technologies and analyzes the court’s ruling in U.S v. Heppner.
In discussing the legal field, Steve highlights two core principles: the work-product doctrine and client-attorney confidentiality. He points out that the main issue with the rise of different AI applications stems from how the system is constructed. Readers are informed that open systems utilize input data “for training purposes,” which could potentially expose that information globally; conversely, closed systems prohibit searches from being shared or used for training. This distinction typically hinges on the specific terms of use.
The piece also includes an analysis of U.S. v. Heppner, 820 F. Supp 3d 292 (S.D.N.Y. 2026). In that case, the defendant, Mr. Heppner, was under investigation for potential criminal conduct and consulted Claude with a series of legal inquiries before sharing those details with his attorney. The federal government subsequently obtained a search warrant for his computer, and the court ultimately determined that his actions constituted a waiver of the attorney-client privilege.
“The Heppner court found that the attorney-client privilege relating to the Claude research and counsel communications were waived,” Steve writes, explaining that “the Court determined that Mr. Heppner could not have had a reasonable expectation of privacy, based upon a situation most people never considered.”
Regarding the ruling, Steve addresses various concerns, stating, “Nowhere in the opinion was any discussion on how anyone other than some possible coding person at Anthropic (Claude’s owner), could ever legally access the information,” failing to mention how a government employee could obtain said data. Additionally, he voices the decision “defies common sense,” commenting, “Nobody expects their cell phone conversations to blow up a privilege because the conversation travels the airwaves and someone with tech skills and the right equipment can access the conversation with a listening device” in comparison.
Steve concludes by sharing practical advice for individuals when communicating with their lawyers, including “lawyers know if you are using AI as part of your research and problem-solving strategy,” or working with “professionals who can advise on this issue.”
