Advise a board on confidentiality and privilege risk from directors' use of a generative tool
Key facts
- Human involvement
- RedLawyer-led
- How AI is used
- List what was entered into the tool, which tool, who received the output, and whether the file shows that the tool keeps inputs confidential. Write no sentence of the advice.
- What the lawyer must review
- You write the advice. Model Rule 1.6(a) forbids a lawyer to reveal information relating to the representation of a client unless the client gives informed consent, the disclosure is impliedly authorised in order to carry out the representation, or paragraph (b) permits it. Rule 1.6(c) requires reasonable efforts to prevent the inadvertent or unauthorised disclosure of, or unauthorised access to, that information. ABA Formal Opinion 512 says informed consent is required before a lawyer inputs information relating to the representation into a generative tool that will not keep it confidential. Federal Rule of Civil Procedure 26(b)(3) limits discovery of documents and tangible things prepared in anticipation of litigation or for trial, and requires the court to protect against disclosure of mental impressions, conclusions, opinions or legal theories of a party's attorney or other representative if discovery of those materials is ordered. Rule 26(b)(5)(A) requires a party that withholds information as privileged or as trial-preparation material to describe the nature of the items so other parties can assess the claim. You decide whether any prompt or output is privileged or protected. A director's use of a tool is not, by itself, a privilege.
- Written for / version
- United States versionUS
Who does what
| Role | What they do |
|---|---|
| Assistance | Supporting preparation only. Consider narrowly defined preparation support after confirming the tool’s capability and permitted scope. The tool writes nothing into the document. Substantive advice, judgement and any restricted content remain with the responsible human. |
| Lawyer | Perform the substantive analysis and decisions. Independently check any permitted supporting work and approve the exact output for its intended use. |
Checklist
- Confirm that the actual tool, feature and processing terms permit use of this information, including access, retention, training and disclosure conditions.
- Confirm the output against the client’s instructions and the complete relevant source material, including omissions or contradictions.
- Resolve exceptions and record the responsible lawyer’s approval of the exact output and intended use.