As the prominence of generative artificial intelligence (“AI”) grows, courts around the world are being faced with a novel issue – whether solicitor-client privilege is lost or waived when an otherwise privileged document is shared with an AI platform. While it appears that this issue has not yet been addressed in Canada, emerging case law from the United States and the United Kingdom indicates that uploading such communications to AI could result in the inadvertent loss of solicitor-client privilege.
In the absence of Canadian jurisprudence directly addressing these issues, this article will examine:
- the basis on which courts in other jurisdictions have concluded that uploading solicitor-client privileged materials to AI platforms may result in a loss of privilege;
- whether solicitor-client privilege could be lost or waived through the use of AI platforms under Canadian law; and
- whether content generated by AI platforms could be protected by solicitor-client privilege.[1]
An International Perspective on AI and Privilege
Recent caselaw from the United States and the United Kingdom addresses the potential ramifications of sharing privileged materials with AI.
Communications Between AI and Client Not Protected by Attorney-Client Privilege
In United States v Heppner, the U.S. District Court held that communications with a publicly available AI platform in connection with a pending criminal investigation were not protected by attorney-client privilege.[2] This issue aroseafter the FBI obtained a search warrant and seized a number of electronic devices and documents which memorialized exchanges between the accused and Claude. The accused had discussed advice he received from his lawyer with Claude, plus potential defence strategies, and also had Claude prepare documents to facilitate discussions with counsel.
Since Claude is not a lawyer, and the platform expressly states that it cannot provide legal advice, Judge Rakoff held that attorney-client privilege did not apply.[3] The court also found that the accused could not have a reasonable expectation of privacy in his communications with Claude because Anthropic expressly reserves the right to disclose data collected to third parties, including government regulatory authorities, in Claude’s privacy policy.[4] On a related point, Judge Rakoff also observed that “AI users do not have substantial privacy interests” in their conversations with AI where those conversations are voluntary and retained by the platform in the normal course of business.[5]
Solicitor-Client Privilege Lost After Lawyer Uploaded Correspondence to AI
In the United Kingdom, the Upper Tribunal (Immigration and Asylum Chamber) reached a similar conclusion in UK v Secretary of State for the Home Department after a lawyer admitted to inputting emails drafted for clients into ChatGPT and using ChatGPT to summarize Home Office decisions for his clients.[6] The Upper Tribunal held that “to put client letters and decision letters from the Home Office into an open source AI tool, such as ChatGPT, is to place this information on the internet in the public domain, and thus to breach client confidentiality and waive legal privilege.”[7] However, the Upper Tribunal distinguished open source AI platforms from closed source AI tools that operate within a secure network, noting that the use of closed AI tools “which do not place information in the public domain, such as Microsoft Copilot, are available for tasks such as summarising“ without risking confidentiality.[8]
Solicitor-Client Privilege and AI in Canada
Even though “the implications of AI for the law are only beginning to be explored,”[9] it seems doubtful that solicitor-client communications shared with open AI platforms, whether by a lawyer or a client, will be protected by solicitor-client privilege. While Canadian courts have yet to address this issue directly, if the confidentiality of solicitor-client communications is compromised through the use of generative AI, it stands to reason that those communications would no longer be considered privileged in Canada.[10]
Uploading Content to AI and the Potential Waiver of Solicitor-Client Privilege
For estate practitioners, the interplay between solicitor-client privilege and AI could come into play in the context of estate litigation. During discovery, it now appears to be the norm for counsel “to probe whether a party has exchanged any communications about a case with a generative AI platform and [demand] transcripts of those exchanges.”[11] As such, if a client has uploaded solicitor-client communications to an open AI system, the privilege that once attached to the communication may be waived, even if that was not the client’s intention.
In Canada, only a client can waive solicitor-client privilege.[12] While it may be waived intentionally, the intent to waive is not required. A waiver of solicitor-client privilege may instead be recognized on the basis of “fairness and consistency” if the client engages in conduct voluntarily that is inconsistent with continuing to protect or maintain privilege.[13] For example, privilege can be waived by sharing a privileged document with a third party or posting the document online.[14]
Accordingly, if Canadian courts find that sharing a record with an open AI platform is analogous to posting it on the internet,[15] it seems probable that this conduct would result in a waiver of solicitor-client privilege. Moreover, given that the privacy policies of open AI platforms often reserve the right to share information uploaded to the platform with third parties, it seems unreasonable to expect such platforms to maintain privileged documents as confidential.[16]
If a privileged record were shared with a closed AI system, on the other hand, it is unclear whether solicitor-client privilege would be waived. Since a closed AI platform does not post the content shared with it online, it may be reasonable for a client to expect a privileged document to remain confidential. However, if the platform’s privacy policy reserves the right to disclose shared information to third parties, it could be argued that solicitor-client privilege has been waived on the basis of “fairness and consistency.”
There is also another reason to refrain from uploading privileged content to AI platforms – it is unlikely that any summary or explanation of that content, or any other content generated by the platform, would benefit from solicitor-client privilege.[17] As noted in Heppner, AI platforms are not solicitors and are not entitled to give legal advice.[18]
How AI Could Impact the Attachment of Solicitor-Client Privilege
If a lawyer uses an open AI platform to help draft client correspondence, there is a risk that solicitor-client privilege will not attach to the communication. As noted by the Upper Tribunal, if such information enters the public domain, it will cease to be privileged.[19]
Although Canadian courts have yet to address this issue, it stands to reason that privilege may not attach where a lawyer uses AI in a manner that compromises the confidentiality of the communication. The law in Canada currently recognizes that privilege will not attach to communications between a solicitor and client that are made in the presence of third parties if no reasonable steps are taken to ensure that the communications will be kept confidential.[20] However, if correspondence for the client is prepared using a closed AI system, thereby minimizing the risk of the content being posted online in the public domain and circulated amongst third parties, the risk of privilege not attaching to the correspondence ought to be alleviated.[21]
The terms of a closed AI platform’s privacy policy may also be pertinent when assessing whether privilege attaches to correspondence created with the assistance of AI. Having said that, the mere fact that a third party electronic platform is utilized arguably should not prevent privilege from attaching, based on the recognition of privilege under somewhat analogous circumstances using other electronic platforms.[22] For example, Canadian courts have recognized that storing privileged information on a third-party server or using a third-party server to send emails that are intended to be privileged will not result in a loss of privilege.[23] The Superior Court of Justice has also expressly recognized that “[t]he law must evolve to protect solicitor-client communication in an electronic world.”[24]
Accordingly, it seems reasonable to conclude that solicitor-client privilege should not be jeopardized if client communications are prepared with the assistance of closed-loop AI tools, such as Thomson Reuters’ CoCounsel platform or LexisNexis’ Protégé, provided that the confidentiality of the information shared with the platform is preserved.
Conclusion
Although Canadian courts have not yet addressed whether solicitor-client privilege will survive if privileged materials are uploaded to a generative AI platform, emerging international caselaw suggests that the privilege may be lost under such circumstances, particularly if the materials are shared with an open AI platform. The U.S. District Court’s decision in Heppner also indicates that AI-generated summaries or explanations of privileged legal advice are unlikely to be protected by solicitor-client privilege.[25]
Notwithstanding the promise of generative AI, it is advisable for lawyers and clients alike to proceed with caution when using AI platforms at this time. Counsel should discourage clients from uploading privileged materials to AI platforms, particularly open AI platforms, given the potential risk of privilege being waived. While secure, closed-loop AI systems appear to offer a safer alternative, it should not be assumed that their use will preserve privilege in every circumstance. Careful consideration of the platform and its terms of use is essential before privileged information is uploaded to the platform. Until Canadian courts provide guidance as to the impact of sharing privileged documents with AI, prudence remains the best safeguard of solicitor-client privilege.
[1] Please note that the related question of whether communications shared with generative AI or produced by generative AI may be protected by litigation privilege is beyond the scope of this article.
[2] 25 Cr. 503 (JSR) [Heppner]. The court was also asked to determine whether the communications were protected by the work product doctrine.
[3] Ibid at 5-6.
[4] Ibid.
[5] Ibid at 6-7, quoting In re OpenAI Inc., Copyright Infringement Litig., No. 25 MD 3143, ECF No. 1021 at 3 (Jan 5, 2026).
[6] [2026] UKUT 81 at para 16 [Secretary of State].
[7] Ibid at para 21. At para 60, the Upper Tribunal reiterated: “Uploading confidential documents into an open-source AI tool, such as ChatGPT, is to place this information on the internet in the public domain, and thus to breach client confidentiality and waive legal privilege”.
[8] Ibid at para 21.
[9] Heppner, supra note 2 at 1.
[10] Dente et al v Delta Plus Group et al,2023 ONSC 3376 at para 80 [Dente], citing Prichard v Ontario (Human Rights Commission), 2004 SCC 31 at para 15 and Solosky v The Queen, 1979 CanLII 9 (SCC), [1980] 1 SCR 821 at 837; Hirch v Lethbridge, 2024 ABCA 170 at para 26 [Hirch].
[11] Stephen A. Thiele, “U.S. decision suggests using generative AI may endanger privilege”, Law 360 (8 April 2026), online: <https://www.law360.ca/ca/articles/2463140/u-s-decision-suggests-using-generative-ai-may-endanger-privilege>.
[12] Hirch, supra note 10 at para 40, citing Canada (National Revenue) v Thompson, 2016 SCC 21 at para 39.
[13] Hirch, ibid, citing S & K Processors Ltd v Campbell Ave Herring Producers Ltd, 1983 CanLII 407 (BCSC) at paras 6 and 10. See also Nova Scotia (Attorney General) v Cameron, 2019 NSCA 38 at paras 30 and 50–51; Chiliwack Teachers’ Association v Neufeld (No 8), 2025 BCHRT 64 at para 23 [Chiliwack], quoting Huang v Silvercorp Metals Inc, 2017 BCSC 795 at para 92.
[14] Chiliwack, ibid at paras 25, 29–31.
[15] See Secretary of State, supra note 6.
[16] See Dente, supra note 10 at para 93.
[17] Please note that it is beyond the purview of this article to address whether such materials could be covered by another type of privilege, such as litigation privilege.
[18] Heppner, supra note 2.
[19] Secretary of State, supra note 6 at paras 21, 60.
[20] See Mangan v Inco Ltd, 1998 CanLII 14671 (ON CTGD).
[21] See Secretary of State, supra note 6 at paras 21, 60.
[22] For privilege to attach to materials prepared using AI platforms, it is not clear whether it is necessary to ensure that those platforms are password protected. Nevertheless, taking reasonable precautions to ensure that privileged documents are protected is consistent with the intent to maintain confidentiality and privilege. See National Bank Financial Ltd. v. Daniel Potter, 2005 NSSC 113.
[23] Dente, supra note 10 at paras 75-78.
[24] Eizenshtein v Eizenshtein, 2008 CanLII 31808 at para 42.
[25] Heppner, supra note 2.