Ethics & professional responsibility
What to tell clients about AI when representation begins
At intake, identify a client’s prior AI use, preserve a clear record, stop unmanaged chats about the matter, and protect communications after counsel is retained.
Practice note
Privilege and work-product questions are fact-specific.
Client AI use before and after retention
| Factor | Unmanaged client AI use | Documented and counsel-directed process |
|---|---|---|
| Existing chats | The lawyer may not know what was asked, shared, or preserved. | Identify relevant use and preserve a factual record for privilege and discovery analysis. |
| Future use | The client continues chatting about the facts or legal theories without guidance. | Set a clear boundary and explain what information should not be entered into a chatbot. |
| Confidentiality | Post-retention legal discussions may enter an unapproved service. | Use only approved tools and protect confidential communications. |
Example conversion prompt
End a client’s pre-retention AI chat about the matter
I have now retained an attorney and am ending the use of this chat for this matter.Edited transcript
Transcript
Hey lawyers, even if you’re not using AI, your clients may be. Here’s what you can do about it.
1. Identify the Client’s Pre-Retention AI Use
First, if your client used AI before you were retained, they may be protected by the Pro Se Work Product Doctrine. If you want to know more about that, I encourage you to check out Medic Council’s page. She just did an excellent video on this topic.
2. Have the Client Log Relevant AI Use
Second, have your client log all of the use of AI involving the case, the facts, or the theories of the case. You’ll need this later to create a privilege log.
With a privilege log, the judge will know what is actually at stake on any motion to compel responses or compliance with a privilege subpoena. It is much better to say, “Your Honor, this is what’s at stake,” rather than, “Yes, my client used AI. I don’t know what’s out there.”
3. Set a Clear Boundary After Retention
Third, have your client go to each and every open chat and paste this prompt:
I have now retained an attorney and I’m ending the use of this chat for this matter.
That creates a clear line.
4. Keep Post-Retention Communications Out of Unapproved Chats
Fourth, encourage your client not to use AI. But if they insist and want to use AI, make sure they do not put any facts or theories you have discussed with them, or any confidential communications, into the chatbot. Entering those confidential communications could waive confidentiality.
Follow me for more tips and tricks on how to use AI in your legal practice.