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By Natalie Cull
ChatGPT seems harmless. You’re just tidying up an email, summarising some documents, or trying to make sense of something your lawyer has sent you.
What many people don’t realise is that uploading information into an AI platform can have serious consequences for their legal matter.
When you send information to your lawyer, it is confidential. You can see it, your lawyer can see it, and it is protected within a secure, lawyer-client relationship. However, when you copy, paste, and upload that same information into an AI platform that is not secure, you may be moving it outside that protected space.
Once information leaves that protected space, you lose control over what happens next. It may be stored in a database. It may be reviewed by the platform. It may become accessible to third parties. In some circumstances, it may even be used to train future AI systems.
That raises an important question: is the information truly still confidential?
Why Confidentiality Matters
Legal privilege is what protects communications between you and your lawyer from being disclosed or used against you. It is one of the fundamental protections that underpins our solicitor-client relationship and allows you to seek legal advice openly and honestly.
However, legal privilege can only exist if confidentiality is maintained.
If legal advice, your instructions, or documents relating to your legal matter are uploaded into an unsecured AI platform, there is a risk that confidentiality may be compromised. If confidentiality is lost, legal privilege may be challenged and, in some circumstances, lost altogether.
This is not simply a possibility. It is a reality.
Courts Are Paying Attention
Earlier this year, a United States court found that documents created using Claude, an AI platform, were not protected by legal privilege because the platform’s terms of service undermined the confidentiality required for privilege to apply.
Similarly, courts in the United Kingdom have issued similar warnings, noting that uploading information to open-source AI platforms may result in a loss of confidentiality and privilege.
Australian courts have also entered the conversation.
The Supreme Court of New South Wales has expressed concern about AI “hallucinations” and the lack of safeguards surrounding confidentiality, privacy, and legal privilege. The Court has prohibited the use of generative AI when drafting affidavits, witness statements, and other evidentiary material. Parties are also required to confirm that AI was not used to generate those documents.
This means that if you provide your lawyer with a statement that has been prepared using AI, there is a real possibility that it cannot be used.
The Federal Circuit and Family Court of Australia have adopted a measured approach to AI use, recognising its potential benefits while emphasising that Court users (whether you are a lawyer or not) remain responsible for any material produced with its assistance. Whether you are a lawyer or a self-represented litigant, caution is required when using it.
Additional Risks in Family Law Matters
Family law proceedings involve additional considerations.
Under the Family Law Act 1975 (Cth), it an offence to publish or communicate to the public an account of the matter, which includes information that identifies a party, witness, child, or other person involved in family law proceedings.
Many people do not realise that entering identifying information into a generative AI platform may create a risk that the information becomes accessible beyond the intended audience. Depending on the platform and how the information is handled, this could potentially expose confidential information and create legal consequences, such as committing an offence.
So, What Should You Do?
As a general rule, we recommend you do not upload any of the following into an AI platform:
– legal advice or emails from your lawyer;
– documents connected to your matter;
– instructions or background information relating to your matter;
– court documents;
– witness statements or affidavits; and
– anything you would not be comfortable being published online.
AI can be a useful tool, but it is not always a safe place for sensitive legal information.
If you are ever unsure, speak to your lawyer. A two-minute conversation today may prevent a much larger problem later on.
