Artificial intelligence (AI) tools like ChatGPT are becoming part of everyday life. In the legal profession, AI can be helpful for tasks such as drafting documents, summarising information, or improving efficiency. However, there is an important legal risk that both lawyers and clients need to be aware of:
Uploading legal documents or advice into AI tools may accidentally destroy or waive legal professional privilege. Once privilege is lost, it usually cannot be recovered.
What is legal professional privilege?
Legal professional privilege (often called “privilege”) is a fundamental legal protection. It keeps communications between a lawyer and their client confidential. In simple terms, privilege means that:
- letters, emails, advice and documents exchanged between you and your lawyer
- created so the lawyer can give you legal advice or prepare for litigation do not have to be disclosed to the other side, insurers, regulators or courts.
This protection allows clients to speak openly with their lawyers, without fear that their communications will later be used against them.
When can privilege be lost?
Privilege only works if communications remain confidential. If privileged information is shared with a third party in a way that’s inconsistent with confidentiality, privilege can be waived – even unintentionally. Importantly, once privilege is waived, it generally cannot be undone.
Why AI tools create a new risk
Most publicly available AI tools (such as ChatGPT and similar platforms):
- operate on third‑party servers
- store and process information entered by users
- often reserve the right to use that information to improve their systems
When legal advice, emails from a lawyer, or other confidential documents are uploaded into these tools, that information leaves the protected lawyer‑client relationship. Even if no one actually reads it, the law may still treat this as disclosure to a third party. That creates a real risk that legal professional privilege is lost.
Courts and regulators are already warning lawyers
Australian courts have started sounding the alarm. In recent cases, judges have warned that putting documents from legal proceedings into generative AI programs may waive legal professional privilege and that lawyers should exercise “extreme caution”.
Legal regulators have echoed this message. Regulatory bodies across Victoria, New South Wales and Western Australia have all warned that:
Lawyers (and clients) should not enter confidential or privileged information into public AI tools.
A simple example
Imagine this scenario: A client receives an email from their lawyer explaining the strengths and weaknesses of their case. The email is confidential and protected by legal professional privilege. The client finds the language confusing and uploads the email into an AI tool to “translate it into plain English”.
By doing so, they may have unintentionally waived privilege. If the opposing party later learns about this, they may be entitled to demand access to that email — including any comments that could damage the client’s case.
But isn’t AI secure?
Some AI providers say they take security seriously — but that does not create legal privilege.
AI platforms:
- are not bound by lawyer‑client confidentiality rules
- do not owe clients professional duties
- control what happens to uploaded information under their own terms and conditions
Even well‑meaning use can have unintended legal consequences.
Are there safer ways to use AI?
Yes — but carefully.
Some closed, legal‑specific AI tools (such as paid, in‑house or firm‑hosted systems):
- restrict access to data
- do not train models on user content
- provide clearer confidentiality protections
Even then, lawyers must fully understand the terms of use and should obtain informed client consent before using AI with confidential material.
Public, open AI platforms are not suitable for uploading privileged information.
Key points to remember
- Legal professional privilege protects confidential lawyer‑client communications
- Uploading legal advice or documents into public AI tools can waive that protection
- Courts and regulators have warned that this risk is real
- Once privilege is lost, it usually cannot be restored
What should clients do instead?
If you receive legal advice that you don’t understand:
- Ask your lawyer directly – explaining advice is part of their role
- Keep legal correspondence private
- Avoid uploading legal documents into AI tools, apps, forums or social media
A short phone call or email to your lawyer is far safer than an AI shortcut.
How MST Lawyers can help
At MST Lawyers, we understand that legal issues can feel complex and overwhelming. We are committed to:
- protecting your confidentiality
- explaining advice clearly and practically
- using technology responsibly and ethically
If you have questions about AI, confidentiality, or your legal rights, please contact our team. We’re here to help — safely and securely.
Article by Carmel Morrison
