What is legal privilege?
Legal privilege is a legal protection recognised under the
Evidence Act 2006. It allows certain communications and documents to remain confidential so they cannot generally be disclosed or used as evidence in court.
Common types of legal privilege include:
- Legal professional privilege – confidential communications between you and your lawyer.
- Litigation privilege – documents prepared primarily for existing or anticipated legal proceedings.
- Settlement privilege – confidential communications made while attempting to resolve a dispute.
These protections encourage people to seek legal advice openly and negotiate disputes honestly without fear that their communications will later be used against them.
Can AI conversations be legally privileged?
Usually, no.
Legal professional privilege only applies to communications with a qualified legal adviser. An AI platform is not your lawyer, regardless of how sophisticated it may seem.
While some AI prompts created during litigation may initially qualify as preparatory material for legal proceedings, privilege depends on the information remaining confidential. If that confidentiality is lost, the privilege may be lost too.
How can legal privilege be lost?
One of the most common ways legal privilege is lost is through disclosure to a third party.
Many public AI platforms collect, store or process information entered by users. Depending on the platform, your prompts or uploaded documents may be:
- stored on external servers
- reviewed for quality or safety purposes
- used to improve the AI model
- processed outside New Zealand.
If you copy and paste confidential legal advice into one of these platforms, you may be disclosing privileged information to a third party.
Even if you never intended to waive privilege, your actions may be viewed as being inconsistent with maintaining confidentiality.
What information should never be entered into public AI tools?
If you're involved in a legal dispute, avoid uploading:
- legal advice from your lawyer
- draft affidavits or witness statements
- court documents
- settlement correspondence
- confidential contracts
- documents prepared specifically for litigation.
Treat public AI platforms the same way you would treat any unrelated third party.
What happens if privilege is waived?
If legal privilege is lost, the consequences can be significant.
Depending on the circumstances:
- documents may need to be disclosed to the other party
- confidential communications may become evidence
- your legal strategy may become visible
- admissions made during settlement discussions could potentially be relied upon.
While every situation is different, losing privilege can materially weaken your position in litigation.
Is using AI always risky?
Not necessarily.
Some enterprise AI platforms and AI products designed specifically for legal professionals include strong confidentiality protections and contractual obligations around data handling.
However, the position for many publicly available AI tools remains uncertain. Unless confidentiality is clearly protected, it is safest to assume that anything entered into a public AI platform may not remain confidential.
Five practical tips for litigants
If you're involved in a
legal dispute:
- Don't copy legal advice into public AI tools.
- Don't upload settlement correspondence or court documents.
- Ask your lawyer before using AI to analyse confidential information.
- Treat AI platforms as independent third parties, not confidential advisers.
- If in doubt, keep privileged information out of public AI systems altogether.
The bottom line
AI is a powerful tool and can provide genuine benefits when used appropriately.
However, when legal proceedings are involved, convenience should never come at the expense of confidentiality.
Before using AI to review legal advice, analyse settlement correspondence or prepare documents for litigation, speak with your lawyer first. A simple mistake today could have significant consequences later.
If you have questions about using AI during a legal dispute, or need advice about protecting privileged information, our litigation team is here to help.
