AMLC Legal Insights - Before You Ask AI: Privilege, Confidentiality, and Waiver in BC
By Alex Mok
Your lawyer gives you legal advice. You trust your lawyer, but you still want to stress-test the advice. So you upload it to an AI platform. The platform identifies a few issues that may not have been addressed. You send those issues back to your lawyer to “perfect” the advice.
You feel reassured because you have left no stone unturned. Your lawyer may feel differently. Reading your well-paragraphed and carefully formatted email, your lawyer realizes what has happened. The lawyer now has to ask: did uploading the advice to an AI platform waive privilege? And if privilege was waived, could the client be required in litigation to disclose not only that advice, but also related privileged communications?
Privilege, Confidentiality, and Waiver
A lawyer can help clients navigate the complexity of the law and advance their interests only if clients feel they are able to speak candidly with their lawyer in private. Privilege serves that important function; it creates a protected space for open and frank communications between lawyer and client.
The two most common forms of privilege are: (1) solicitor-client privilege which protects confidential communications between lawyer and client made for the purpose of seeking or giving legal advice; and (2) litigation privilege which protects communications and documents created for the dominant purpose of existing, contemplated, or reasonably anticipated litigation.
Communications must be made in confidence and remain confidential in order to be considered privileged, and therefore protected from disclosure. If the confidentiality of legal advice is lost, the client may be found to have waived privilege. The effect of waiver can be more far-reaching than one might expect. In some circumstances, it may affect not only the specific communication disclosed, but also other related communications and advice concerning the same subject matter.
Risk of waiver with the use of AI
Although it is not binding on BC courts, a recent U.S. decision illustrates the privilege risks that can arise when third-party AI tools are used in connection with legal matters. In United States v. Heppner, No. 25 Cr. 503 (S.D.N.Y.) the defendant used a publicly available generative AI tool to create documents concerning potential defence strategy and legal arguments. The defendant asserted privilege over those AI-generated materials.
The court rejected the privilege claim. It emphasized that the AI platform was not counsel, was not part of the lawyer-client relationship, and was not acting as counsel’s agent. The court also considered the platform’s terms and privacy practices in assessing whether there was a reasonable expectation that the information would remain confidential.
It is not necessary, for present purposes, to debate whether Heppner would be decided the same way in British Columbia. The practical point is narrow but important: where privileged information is voluntarily entered into an AI tool, an opposing party may argue that the information has been disclosed to a third party and that privilege has therefore been waived. Whether that argument succeeds will depend on the circumstances, likely including the platform’s terms of use, data retention practices, confidentiality protections, and the purpose and manner of the AI use. The risk should be addressed before the tool is used, not after a privilege challenge arises.
Practical safeguard for clients and businesses
Before using AI in connection with legal matters, clients and businesses should first consider whether it is appropriate to do so and what steps are necessary to protect confidentiality and privilege. In particular, they should consider the following:
Do not input privileged or confidential information into public AI tools. Use anonymized or hypothetical facts where possible, while recognizing that anonymization may not be sufficient if the information still identifies the matter or reveals strategy.
Involve and consult counsel before using AI with legal materials, especially where the materials concern legal advice, litigation strategy, investigations, productions, or settlement positions.
Review the AI platform’s terms of use, privacy policy, and data controls, including whether prompts and outputs may be stored, reviewed, used for training, or disclosed.
Use approved or enterprise-grade tools where available, particularly tools with appropriate confidentiality settings, no-training controls, and administrative safeguards.
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AMLC Legal Insights are intended for informational purposes only and do not constitute legal advice or opinion.