Privilege risks in the gen AI era

• Considers how legal privilege applies to the use of gen AI by lawyers, and explains that new types of documents are being created which are not catered for under the existing law of privilege.
• Highlights that confidentiality risks are relatively easy to navigate, but issues such as the communication requirement and in particular the working papers rule are key factors to consider.
• Goes on to explore practical considerations for lawyers who create material using AI, as well as discussing the future of privilege and how the law may need to evolve.

The use of generative artificial intelligence (gen AI) by lawyers raises new questions about legal professional privilege. New types of documents are being created—both user prompts and AI responses—which are not catered for under the existing law of privilege.

Most commentary on this topic has focused on confidentiality, but other aspects of privilege represent overlooked