Almost everyone now has a chatbot on their phone. It is tempting, after a difficult meeting with your lawyer, to paste the advice into ChatGPT, Claude or Gemini and ask it to explain, or to ask whether your lawyer is right. That instinct is understandable. It may also be expensive.

What privilege actually protects

Legal professional privilege protects confidential communications between you and your lawyer made for the purpose of legal advice or litigation. Confidentiality is the hinge. Privilege is not lost only when you intend to give it up: it is lost where your own conduct is inconsistent with keeping the communication confidential. That is the test the High Court set in Mann v Carnell, and it applies whether or not you understood the consequences.

Uploading your lawyer’s advice, your file notes or documents produced in litigation into a public AI service means handing that material to a third party, on that provider’s terms, into a system that stores and processes what you give it. Whether that is conduct inconsistent with confidentiality has not yet been decided in this country.

Where the law sits today

No Australian court or tribunal has ruled on it. But the warnings have started. In Helmold & Mariya (No 2) [2025] FedCFamC1A 163 and Mertz v Mertz (No 3) [2025] FedCFamC1A 222, the Court observed that entering documents into a generative AI program may waive privilege, and called for extreme caution. Those observations were made in passing, not decided, so they do not bind anyone. They are a clear signal of judicial thinking.

Overseas courts have gone further. In United States v Heppner, a New York court held that a defendant’s exchanges with an AI tool about his own defence were not privileged, because he ran the searches on his own initiative rather than at his lawyer’s direction. Sending the output to his lawyer afterwards did not fix it. Other US courts have been more protective, treating AI as a tool rather than a third party. American privilege law does not map neatly onto ours, but the questions being asked are the same.

What to do

Assume anything you type into a public AI service could one day be read by the other side. Do not paste legal advice, draft affidavits, witness statements or documents obtained through discovery into one. If you want a plain English explanation of your advice, ask us. That conversation stays privileged.

Once the material is out, you cannot put it back.

This information is general in nature and does not constitute legal advice.