AI AND THE CONCEPT OF PRIVILEGE

Artificial Intelligence (AI) is increasingly revolutionising the legal landscape, presenting both opportunities and complexities. One such complexity is the intersection of AI and the concept of privilege.

Chatbots which operate on large language models (LLMs) are trained on extensive data to generate responses to user prompts. Records of these interactions are typically stored in browser history, computer devices, shared electronic copies, and printed documents. Users of generative AI tools should be aware that these records may be disclosable if relevant to litigation or regulatory investigations unless privilege applies, which protects certain communications from disclosure.

Legal advice privilege

For an interaction to attract legal advice privilege it must be between a client and a lawyer for the dominant purpose of obtaining legal advice. Since AI chatbots are not lawyers and are merely processing legal advice previously provided by lawyers to predict the appropriate response, they are unlikely to meet this criterion. The communication must also be confidential. Interactions between users and open models trained on data which is publicly available on the internet will lack the requisite confidentiality. However, if interactions are with a closed LLM system operating within a secure network, they may be stored securely and could attract confidentiality.

Litigation privilege

Litigation privilege covers confidential communications between a client and their lawyer or third parties if made for existing or contemplated litigation. As above, confidentiality is crucial. Whilst it may be difficult to argue that a chatbot is the user’s lawyer, it remains to be seen whether the courts and/or Parliament will be willing to treat a computer program as a “party”.

Conclusion

The courts have been clear that extending legal advice privilege to advice given by non-lawyers / a computer program is Parliament’s remit. It is unlikely that legislation will extend the scope of privilege to communications between users and computer programs generally as this would be broad, privilege might be extended to cover the output from technologies developed by lawyers, and which work solely from their own data. Users should mitigate risks of disclosure by understanding the confidentiality terms of chatbots used, avoiding such tools for issues which might result in litigation, and avoiding storing or sharing chatbot conversations if concerned about potential disclosures.

Should you require advice on the issues raised, Taylor Wessing’s specialist disputes and investigations team would be happy to discuss this with you.

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