When Clients Use a Public AI Assistant or Platform (ChatGPT, Claude, Gemini, etc.), It May Not be Privileged: A Wake‑Up Call from U.S. v. Heppner

Artificial intelligence (AI) tools are everywhere and they can be useful.

However, a recent federal court decision serves as an important warning: information you share with an AI platform may not be private or legally protected, even if you later share it with your attorney. This is especially important in estate planning, where family dynamics, confidentiality, and sensitive financial information often play a central role.

Why This Matters

In a recent case, United States v. Heppner (February 2026), a federal judge ruled that documents created by a client using a public AI tool were not protected by attorney‑client privilege. The client had not been instructed by his counsel to engage with the AI tool. Even though the client later gave those AI‑generated materials to his lawyers, the court allowed the government to obtain them.

Sharing legal-related communications with a third party (including an AI service) can destroy confidentiality and may waive privilege.

The key takeaway for clients is simple: Using a public AI platform is not the same as talking to your lawyer.

Most public AI tools:

• Are not confidential
• May store or reuse your inputs
• Do not owe you a duty of loyalty or secrecy
• Can make what you type discoverable in a lawsuit

Why Estate Planning Clients Should Be Especially Careful

Estate planning often involves:

• Unequal inheritances
• Blended families
• Second marriages
• Disinherited children
• Concerns about undue influence or capacity

These issues are frequent sources of litigation after death. Statements made to an AI platform — and any AI inputs or outputs you later share with others — can later be used as evidence.

A Real‑World Estate Planning Example

Example 1: Unequal Distributions

A parent uses an AI platform to ask: “Can I leave more to my daughter than my son without getting sued?” The AI generates an explanation. The parent later emails that explanation to the daughter, saying, “This is why I’m doing this.”

After the parent’s death, the son challenges the estate plan. That AI‑generated explanation, and the parent’s email, may now be discoverable evidence used to argue intent, bias, or undue influence.

Example 2: Family Dynamics and Sharing AI Advice

A widowed client with children from a first marriage and a new spouse uses AI to ask: “How do I keep my new spouse from changing my estate plan after I die?” The client discusses the AI’s response with one child at a family dinner. If litigation later arises, the court may find that:

• The AI communication was not confidential
• The family discussion waived any claim of privacy
• The content can be used in court to support claims of mistrust, manipulation, or improper motive

Under the reasoning of the Heppner decision, what began as a private AI inquiry could become public evidence.

AI Dos and Don’ts for Estate Planning Clients

AI Dos (Generally Safe Uses)

• Research basic, general concepts (e.g., “What is a trust?”)
• Learn vocabulary or definitions before meeting with your attorney
• Organize non‑confidential questions to ask your lawyer
• Get high‑level educational background, not legal advice

AI Don’ts (High Risk)

• Do not input:
  • Family conflicts
  • Names of beneficiaries
  • Dollar amounts
  • Draft estate plans
  • Specific instructions from your lawyer
• Do not upload any confidential documents
• Do not ask AI for personalized legal advice
• Do not paste emails or communications from your attorney into an AI platform
• Do not rely on AI explanations when deciding how to structure gifts or disinherit someone
• Do not share AI‑generated legal explanations with family members

One Simple Rule to Remember

If you wouldn’t want it read aloud in court or shown to your family during a lawsuit, don’t enter it into an AI tool.

Best Practice

Talk to Your Lawyer First

AI can be a helpful educational tool, but it is not a substitute for legal counsel, and it does not protect your privacy.

If you are considering:

• Unequal distributions
• Disinheritance
• Second‑marriage planning
• Asset protection
• Sensitive family issues

Speak with your attorney directly before using AI tools. Your communications with your lawyer are protected; your conversations with AI platforms may not be. If you have questions about how technology, confidentiality, or family dynamics may affect your estate plan, please contact our office.

Looking Ahead

While recent case law suggests an emerging judicial willingness to extend work product protection to certain AI‑assisted materials, the boundaries of such protection remain unsettled and warrant caution. We encourage clients to consult with their counsel before embarking on research using generative AI tools in connection with a legal matter.

Cozen O’Connor lawyers are available to help clients assess the risks highlighted by the Heppner decision and to answer questions about the appropriate use of generative AI in estate planning/litigation and related matters.