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Here's my question: If the attorney-client privilege, and more importantly, the work product doctrine don't apply here, would they also not apply to direct conv

Here's my question: If the attorney-client privilege, and more importantly, the work product doctrine don't apply here, would they also not apply to direct conversations between an attorney and an AI? It seems to me that the court would need to apply some twisted logic to claim that those protections apply to an attorney, but not to a petitioner or respondent.

ozb 6mo ago
The ruling explicitly overrules Shih, thus making exactly that argument: > Shih, of course, is not binding on this Court, and this Court respectfully disagrees with its holding. As relevant here, the court in Shih principally concluded that the work product doctrine is not limited to materials prepared by or at the direction of an attorney. Id. But that conclusion undermines the policy animating the work product doctrine, which, as one of the cases cited in Shih explains, is "to preserve a zone of privacy in which a lawyer can prepare and develop legal theories and strategy 'with an eye toward litigation.'"
- BobaFloutist 6mo ago
  Does that imply that materials produced by the client in conversation with the attorney (e.g. attorney says to client "Ok write here in your own words what happened so I can understand your perspective") are not privileged? Or would those presumably exist under the umbrella of privacy because they're relevant to the lawyer preparing and developing their legal strategy?
Digory 6mo ago
1. "Conversation" is purely anthropomorphism. It's software input and output. If the client makes an excel spreadsheet about the cost benefit of ripping off people, it's not work-product. But the lawyer's draft damages analysis in excel has always been protected. 2. If we're going to buy the "conversation" conceit, lawyers talking to consulting experts have always had a lot more work product protection than testifying experts. The lawyer talking to Claude feels like talking to a consulting expert, especially since Claude can't have independent knowledge of facts that would allow it to testify.
- deleted 6mo ago
  [deleted]
- pclmulqdq 6mo ago
  A spreadsheet I produce for myself probably isn't attorney-client privileged. A spreadsheet or word document I produce for my lawyer can be attorney-client privileged (especially if it's literally only for the lawyer). If a ChatGPT or Claude chat is legally like a spreadsheet, it sounds like it's probably not privileged, but a ChatGPT chat you create "for your lawyer" would be.
GJim 6mo ago
> direct conversations between an attorney and an AI For the love of God! I hope an attorney isn't stupid enough to share a client confidential and personal data with an effectively unregulated AI.
- anonymousiam 6mo ago
  With so many attorneys using AI to write their court filings (and many being fined for the AI-generated hallucinations), I suspect there are many stupid attorneys that are already doing this.
  - qingcharles 6mo ago
    I can tell you, just as a lot of developers are using AI and maybe not saying it, a lot of lawyers are using AI right now. The ones I know are all on the Pro $250/mo plans too, since they can afford it.
freejazz 6mo ago
No, because in the circumstance of an attorney doing it, it is an attorney doing it.

ozb 6mo ago

The ruling explicitly overrules Shih, thus making exactly that argument: > Shih, of course, is not binding on this Court, and this Court respectfully disagrees with its holding. As relevant here, the court in Shih principally concluded that the work product doctrine is not limited to materials prepared by or at the direction of an attorney. Id. But that conclusion undermines the policy animating the work product doctrine, which, as one of the cases cited in Shih explains, is "to preserve a zone of privacy in which a lawyer can prepare and develop legal theories and strategy 'with an eye toward litigation.'"

BobaFloutist 6mo ago
Does that imply that materials produced by the client in conversation with the attorney (e.g. attorney says to client "Ok write here in your own words what happened so I can understand your perspective") are not privileged? Or would those presumably exist under the umbrella of privacy because they're relevant to the lawyer preparing and developing their legal strategy?

Digory 6mo ago

1. "Conversation" is purely anthropomorphism. It's software input and output. If the client makes an excel spreadsheet about the cost benefit of ripping off people, it's not work-product. But the lawyer's draft damages analysis in excel has always been protected. 2. If we're going to buy the "conversation" conceit, lawyers talking to consulting experts have always had a lot more work product protection than testifying experts. The lawyer talking to Claude feels like talking to a consulting expert, especially since Claude can't have independent knowledge of facts that would allow it to testify.

deleted 6mo ago
[deleted]
pclmulqdq 6mo ago
A spreadsheet I produce for myself probably isn't attorney-client privileged. A spreadsheet or word document I produce for my lawyer can be attorney-client privileged (especially if it's literally only for the lawyer). If a ChatGPT or Claude chat is legally like a spreadsheet, it sounds like it's probably not privileged, but a ChatGPT chat you create "for your lawyer" would be.

GJim 6mo ago

> direct conversations between an attorney and an AI For the love of God! I hope an attorney isn't stupid enough to share a client confidential and personal data with an effectively unregulated AI.

anonymousiam 6mo ago
With so many attorneys using AI to write their court filings (and many being fined for the AI-generated hallucinations), I suspect there are many stupid attorneys that are already doing this.
- qingcharles 6mo ago
  I can tell you, just as a lot of developers are using AI and maybe not saying it, a lot of lawyers are using AI right now. The ones I know are all on the Pro $250/mo plans too, since they can afford it.

freejazz 6mo ago

No, because in the circumstance of an attorney doing it, it is an attorney doing it.