Review business users' use of a generative tool for confidentiality and privilege
Key facts
- Human involvement
- YellowClose supervision
- How AI is used
- List each system the lawyer identifies and the category of information the lawyer says was entered, with the date and the user if the lawyer supplies them. Do not decide that a privilege or work-product protection was 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 paragraph (b) permits it. ABA Formal Opinion 512 (29 July 2024) treats confidentiality, competence, and supervision as applying when a lawyer uses a generative tool, including the question of what information is entered and whether the tool retains it. If the same information later has to be withheld in federal discovery, Federal Rule of Civil Procedure 26(b)(5)(A) requires the party to expressly make the claim of privilege or trial-preparation protection and to describe what is withheld without revealing the protected information. Entering information into a tool is not, by itself, the claim or the waiver analysis. The lawyer makes both decisions.
- Written for / version
- United States versionUS
Who does what
| Role | What they do |
|---|---|
| Assistance | Potential support includes identifying points for review. Confirm 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.