Brief directors on AI use without deciding privilege
Key facts
- Human involvement
- YellowClose supervision
- How AI is used
- From the questions the general counsel lists, prepare a briefing note that states each question and leaves the answer blank. Do not say a communication is privileged and do not tell the board that privilege has been waived.
- What the lawyer must review
- ABA Model Rule 1.6(a) provides that a lawyer shall not reveal information relating to the representation of a client unless the client gives informed consent, the disclosure is impliedly authorized in order to carry out the representation, or the disclosure is permitted by paragraph (b). ABA Formal Opinion 512 (29 July 2024) applies that duty to what is entered into a generative tool and leaves the lawyer responsible for the output. Federal Rule of Civil Procedure 26(b)(5)(A) requires a party that withholds discoverable information as privileged or as trial-preparation material to make the claim expressly and to describe the nature of what is withheld without revealing the protected information. Rule 26(b)(5)(B) sets a procedure after produced information is claimed to be privileged or protected. The rule's notes state that paragraph (b)(5)(B) does not address whether the privilege or protection was waived by the production. The general counsel decides what is said to the directors.
- Written for / version
- United States versionUS
Who does what
| Role | What they do |
|---|---|
| Assistance | Consider narrowly defined preparation support after confirming the tool’s capability and permitted scope. |
| Lawyer | Set the scope, supervise the work closely, verify every part relied on, resolve omissions and exceptions, and approve the exact output. |
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.