AI Is Now Part of Litigation — Whether Lawyers Like It or Not

Artificial intelligence tools such as ChatGPT, Claude, and Gemini are now routinely used by litigants and lawyers alike. Clients are increasingly using these systems to ask legal questions, organize facts, and even attempt to analyze their cases before speaking with counsel.

For family law attorneys, this development raises an important question: what happens when a client discusses their case with an AI system?

A recent federal decision suggests the answer may be uncomfortable. Conversations with public AI platforms may not be protected by attorney-client privilege and may potentially become discoverable evidence.

This development has significant implications for family law practice, where cases often involve sensitive personal narratives, informal client behavior, and broad discovery.

Understanding how courts are beginning to treat AI-generated material is becoming part of competent representation.

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The First Major Case Addressing AI and Privilege

In 2026, the United States District Court for the Southern District of New York addressed a novel issue in United States v. Heppner.

The defendant used an AI system to generate documents analyzing allegations against him and outlining possible defense strategies. The documents contained both the prompts he entered into the AI and the responses generated by the system.

The defendant later shared these documents with his attorneys and argued that they should be protected by attorney-client privilege and the work-product doctrine.

Judge Jed Rakoff rejected both arguments.

The court held that the documents were not privileged because the defendant had shared confidential information with a third-party AI platform rather than communicating directly with his attorney.

The court also rejected work-product protection because the documents were not prepared by or at the direction of counsel.

While the case arose in a criminal context, its reasoning is broadly applicable across litigation, including family law.

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The Legal Principle Behind the Ruling

The Heppner decision did not create new privilege doctrine. Instead, it applied longstanding principles to a new technology.

Attorney-client privilege requires a confidential communication between a client and their attorney made for the purpose of obtaining legal advice.

If a client voluntarily discloses information to a third party who is not necessary for the representation, confidentiality may be lost and privilege can be waived.

The court treated the AI platform as a third party.

Because the defendant entered information into a system operated by an external company whose terms allowed storage or review of user prompts, the court concluded there was no reasonable expectation of confidentiality.

That conclusion is consistent with traditional privilege law.

If a client discusses their legal strategy with a friend, consultant, or social media audience, the communication is not privileged. The court reasoned that an AI chatbot owned by a third-party provider may fall into the same category.

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Why This Matters More in Family Law Than Many Other Practice Areas

Family law litigation often involves expansive discovery and deeply personal factual narratives.

Clients frequently document their disputes in writing, including:

• text messages
• parenting app communications
• emails
• journals
• social media posts

AI platforms now represent another place where clients may narrate the story of their case.

A client may type detailed descriptions of parenting disputes, financial conduct, or marital conflicts into an AI system while asking for advice or validation.

From a discovery perspective, those conversations could potentially create records reflecting:

• admissions about facts
• explanations of disputed events
• financial disclosures
• litigation strategy

Family law attorneys should assume that AI-generated documents and chat transcripts may eventually become part of the discovery landscape.

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The Important Distinction Between Three Different Uses of AI

Not all AI use creates the same legal risk. Attorneys should distinguish between three fundamentally different uses of these systems.

AI as a Drafting Tool

AI is increasingly used to assist with drafting documents such as outlines, summaries, and first drafts of pleadings.

When the resulting document is intended to be filed or served, confidentiality concerns are minimal because the final product is not intended to remain private.

The main professional responsibility concern in this context is accuracy. Courts have already sanctioned attorneys who filed briefs containing fabricated cases generated by AI systems.

Competent review remains essential.

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AI as Legal Research

AI is also used as a research tool to summarize legal doctrines or identify general legal principles.

Used this way, AI functions similarly to secondary sources or search engines. If the user does not disclose case-specific confidential information, privilege concerns are minimal.

However, attorneys must remain aware that AI systems sometimes generate inaccurate or incomplete legal analysis.

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AI as Case Preparation

The greatest risk arises when AI is used as a substitute for confidential legal consultation.

This occurs when users enter detailed facts about their case and ask the AI system to analyze strategy or provide advice.

The Heppner case addressed exactly this scenario.

When litigants input sensitive facts and litigation strategy into a public AI system, courts may conclude that the information was voluntarily disclosed to a third party.

That disclosure may defeat privilege.

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Public AI Systems vs Private AI Environments

Another nuance that courts will likely address in future litigation is the difference between public AI systems and private enterprise tools.

Most consumer AI platforms operate under terms of service allowing the provider to store or review user inputs.

If the provider has potential access to the information, courts may conclude that users lacked a reasonable expectation of confidentiality.

By contrast, some law firms are developing secure AI systems that operate entirely within internal environments and do not store or reuse prompts.

In those circumstances, the AI tool functions more like internal software used by the legal team rather than an external service provider.

Courts have not yet fully resolved whether privilege may survive in those contexts, but the distinction is likely to become increasingly important.

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Practical Risk Management for Family Law Attorneys

Family law attorneys should begin addressing AI use proactively with their clients.

One important step is educating clients that conversations with public AI platforms are not equivalent to discussions with their attorney.

Clients should understand that entering detailed information about their case into AI systems may create records that could potentially be discovered later.

Attorneys may also consider including AI usage guidance in engagement letters or client orientation materials, particularly in high-conflict litigation.

In some cases, it may also be prudent to ask clients directly whether they have used AI systems to analyze their case or generate documents.

As AI adoption grows, courts and opposing counsel may increasingly request such materials in discovery.

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The Emerging Role of AI in Litigation

Artificial intelligence will continue to influence how litigants prepare and present cases.

For attorneys, the challenge is not simply understanding the technology but integrating it into existing legal frameworks governing confidentiality, privilege, and professional responsibility.

The Heppner decision is likely the first of many cases addressing how traditional privilege doctrine applies to AI-assisted communications.

Family law practitioners should anticipate that discovery disputes involving AI-generated material will become more common.

Understanding these issues now can help attorneys protect client confidentiality and avoid unexpected evidentiary problems later.

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Family Matters Law Group regularly publishes legal insights and practical guidance for attorneys navigating evolving issues in family law practice.

If you are interested in discussions about emerging legal technology, litigation strategy, and developments affecting family law attorneys, follow our updates and resources.

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Bottom Line

Artificial intelligence is rapidly becoming part of how litigants and lawyers prepare cases. However, recent case law suggests that conversations with public AI systems may not be protected by attorney-client privilege. Family law attorneys should understand the distinction between AI drafting, research, and case preparation and proactively educate clients about the confidentiality risks associated with discussing their case with AI platforms.

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