What's Attorney-Client Privilege?
Why Founders Should Care About What They Say to AI
Everything you type into ChatGPT is discoverable in litigation. Everything you tell your lawyer is not. Here's why that matters and what to do about it.
TL;DR
Attorney-client privilege protects your communications with a lawyer from disclosure — even in court.
No such protection exists for what you type into ChatGPT, Claude, or any other LLM.
If you eventually get sued, the other side can force you to produce your AI chats.
The more context you give an LLM, the more useful it is — and the more likely you say something that could hurt you.
Before submitting tokens, ask yourself: could this chat hurt me if the other side saw it?
When the answer is yes, that question belongs to a lawyer, not a chatbot.
The Friday Night Scenario
It's Friday, late. At your desk. A teammate you weren't sure you wanted to keep on anyway just told you they have advancing cancer. Tragedies abound, and like any founder, you freak out trying to figure out what to do about it. You don't want to be horrible, but you actually can't afford this. You jump on ChatGPT and explain the situation, then ask “can I fire them for having cancer?”
No one saw you say it. Privacy settings at max. In the morning, you probably see things differently. But if you eventually fire this person and they lawyer up, you're in trouble. If you asked your lawyer that question, no one could ever know. When you ask ChatGPT, you've essentially sent yourself a discoverable email to memorialize your intentions at the moment when you looked worst.
This is not legal advice. It's a founder reality check and a TLDR.
What's This Legalese?
What is attorney-client privilege?
Attorney-client privilege is the protection of confidentiality for private communications between a lawyer and client. It protects your communications with your lawyer (a human admitted to at least one bar) from disclosure, including in litigation or regulatory investigations. This confidentiality guarantee is stronger than any NDA — a court order can override an NDA. A court order will generally not override attorney-client privilege unless you waive it.
Why does privilege exist?
Privilege exists because it makes lawyers more effective. If we know the ugliest real truth and all the bad facts, we'll be better at helping you navigate them. The law wants you to be brutally honest with your lawyers in a way you could not be brutally honest publicly, so it provides strong protections — starting when you begin to seek legal advice.
What is discovery?
Discovery is the portion of litigation or regulatory action in which the parties use the power of the court and strict penalties to gather information about the claims in a case. In our example above, this would include your sick employee's lawyer requesting any and all communications you ever had about the employee or illness, including AI chats. This is where stuff comes out, because if you hide stuff in this process, you can be strongly penalized — even in the worst case, with jail.
The key difference: When you email your lawyer “can I fire them for having cancer so I can hire someone else?” that (and the lawyer telling you no, you cannot) is privileged, and you don't have to produce the question in response to the opposing lawyer's request. When you asked ChatGPT, you have to produce that chat. It's “discoverable.”
Why Would You Care?
Ask yourself: have you ever asked AI something that you wouldn't want the person on the other side of the contract, dispute, etc. to see? Things like:
"How can I edit this language to seem like I'm SOC2 compliant even if I'm not?"
Fraud in the inducement claims against you get stronger
"Help me edit this contract so I can copy the vendor's technology"
Creates bad faith claims and strengthens breach claims against you
"What's the best way to avoid FDA labeling requirements?"
Convinces a regulator you're a bad egg
"What marketing technologies can help me track users across the web without them knowing?"
Makes that tracking tech lawsuit a lot more powerful
Now, this becomes relevant if and when things end up in court. You may never face that. But as you grow more successful, the chances that someone takes you to court increase.
Human lawyers work very hard to preserve privilege, and lawyers actually have to jump through some hoops to use LLMs for client work in a way that doesn't waive privilege.
Bottom line: As a founder, there is just zero option to get privilege protection for what you say to an LLM unless it flows through a lawyer with those significant protections.
What To Do About It
We're all obviously going to be using LLMs when we face difficult situations. The more of the right context and background you give your favorite LLM, the more help it can be in law or anything else — and also the more likely you are going to say something that could hurt you in litigation.
Here's a suggested rubric, assuming you have some money for lawyers and interest in avoiding unnecessary downside risk. When seeking legal help from LLMs:
Before you submit the tokens, ask yourself “If this chat — or any part of this chat lifted out of context — were visible to the other side or the government, could that hurt me?”
If the answer is yes, ask yourself “can I extract the part that would hurt me and still get as good an answer?” If that answer is yes, extract that part and consider using what you extracted as the focus on a targeted, specific question to a lawyer you craft using the rest of the answer.
If you can't get a good answer without including the thing that makes you look bad — or could make you look bad in some unknown future circumstance where everything has gone horribly wrong — and you really need to answer the question, you might want to bite the bullet on a lawyer to take that particular question.
Thanks for reading this PSA. Questions welcome.
FAQ
Q: What is attorney-client privilege?
A: It's the legal protection that keeps your private communications with a lawyer confidential — even from courts, opposing counsel, and regulators. It's stronger than an NDA and can only be waived by you.
Q: Does attorney-client privilege apply to AI chatbots?
A: No. There is no privilege protection for anything you type into ChatGPT, Claude, or any other LLM. Those conversations are discoverable in litigation.
Q: What does "discoverable" mean?
A: It means the other side in a lawsuit or regulatory action can compel you to hand it over. If you hide discoverable material, you face serious penalties — including potential jail time.
Q: Can privacy settings on AI tools protect me?
A: No. Privacy settings prevent other users from seeing your chats, but they do not create any legal privilege. In discovery, you would still be required to produce those conversations.
Q: What kinds of AI prompts could hurt me in litigation?
A: Anything that reveals bad intent, awareness of wrongdoing, or attempts to circumvent legal requirements. Questions about avoiding compliance, copying IP, or terminating employees for protected reasons are all examples.
Q: Should I stop using AI for legal questions entirely?
A: No — but be strategic. Before submitting a prompt, ask yourself whether the chat could hurt you if the other side saw it. If so, extract the sensitive part and bring that specific question to a lawyer instead.
Q: How do lawyers preserve privilege when using AI themselves?
A: Lawyers jump through significant hoops — including using enterprise agreements, keeping AI outputs within the scope of client representation, and ensuring AI-assisted work product remains under the attorney work product doctrine.
Q: As a founder, can I get privilege protection for my AI chats?
A: Only if the communication flows through a lawyer with proper privilege protections in place. There is no way to independently claim privilege for direct conversations with an LLM.
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Story LLP is a law firm, and Story's lawyers built Aegis to deliver better, standard legal services at scale so founders can choose between top-tier specialized lawyers and standardized process automations that replicate those lawyers according to their needs and budget. By definition, a standardized process may not be perfect for you. Please review our Policies page to better understand the difference, as well as how we use AI and how we manage conflicts, privilege, etc.
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