Document Type

Article

Publication Date

9-2026

Abstract

Recently, San Francisco public defenders were so overburdened that they risked jail for contempt rather than take on more cases. Wyoming and New Mexico public defenders have done the same, while other states have been sued for underfunded, ineffective public defender systems. Meanwhile, some people accused of low-level crimes have no lawyer whatsoever, making critical decisions about pleading guilty or trial strategies on their own, and being subject to pretrial detention, significant fines, and collateral consequences like deportation and sex offender registration. Even outside the criminal system, low-income people face evictions, family separations, deportations, and more with inadequate legal assistance.

This Essay explores a key but misunderstood doctrinal question related to this nationwide crisis: Could exchanges between laypeople and Artificial Intelligence (AI) chatbots like Claude or ChatGPT, seeking legal advice, ever be protected by privilege law, such as the attorney-client privilege and workproduct doctrine? The question is timely, as clients and pro se litigants increasingly turn to chatbots for legal research and advice and as the government has repeatedly accessed or tried to access such exchanges to use them as evidence against a litigant, and argued that no privilege applies. At least one court has agreed with the government. A federal judge recently ruled in United States v. Heppner (S.D.N.Y.) that a criminal defendant’s legal queries to Claude — which the government found while executing a warrant to search his computer, and which the defendant claimed he was planning to share with his attorney — were fair game to introduce at trial. The judge in Heppner rejected the defendant’s attorney-client privilege claims out of hand, reasoning simply that Claude is not an attorney.

Disciplines

Evidence | Law | Legal Ethics and Professional Responsibility | Science and Technology Law

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