Attorney here. I'm quite concerned that AI note-taking applications, if used by clients to keep track of conversations and meetings that would otherwise be privileged, might be jeopardizing their rights by doing so. I certainly have been advising clients myself, at least if I know them to be using AI for productivity or otherwise, not to use note-taking or chat tools during calls or meetings, or to discuss anything concerning legal matters with any AI chatbot or agent or tool, because it is all potentially discoverable under the rapidly evolving case law in this area.
Although I definitely think that any alternative approach would be fraught with legal peril, I strongly disagree that this SHOULD be the state of the law. AI note-keeping tools, chatbots, and other AI-generated services are not sentient beings, but most importantly, they are not natural or even artificial persons. The whole principle of waiver in the area of privilege is based on the notion that an otherwise private attorney-client communication, or document created that is covered by the attorney work-product doctrine, has been copied to or shared with a THIRD PARTY. A third party is a party, which at minimum is a legal or natural person -- perhaps a corporation or LLC, but not a computer, dolphin, chimpanzee, or chair. AI note-keeping tools, models, chatbots, etc., are obviously not natural persons (human beings), but they are also not even artificial persons. They cannot sue or be sued, own property, enter judgments or be held liable, or have any legally enforceable obligations. Legally, chatbots have no "standing" or personhood, even of the artificial sort assigned to corporations and LLCs (which, although not human, can sue or be sued, own property, obtain judgments, have legally enforceable obligations, etc.). There simply is no logical theory of waiver due to copying a third party that gets triggered by "conversing" with a chatbot.
The stronger argument I have seen, which Judge Rakoff cited about 6 weeks ago in an SDNY ruling, and that perhaps makes more sense (at least on its face), is to point to the ChatGPT or Claude Terms of Service. Those Terms make the contents of any chat histories between users and the AI service capable of being copied and utilized for training or other purposes. However, those terms of service are also quite similar to the same provisions often found in email and SMS text message providers, and for Zoom, Teams, WhatsApp, and plenty of other channels used by attorneys to communicate with clients. I haven't had the opportunity yet to contrast them, but I would be surprised if the software products routinely used to facilitate attorney-client conversations don't contain substantively similar if not identical provisions to the ones that Judge Rakoff found persuasive to deem privilege waived with respect to client-ChatGPT conversations. I've been trying cases for nearly 20 years across multiple jurisdictions and have never even seen anyone argue, at least not since the dawn of the email era at the very beginning of my career, that attorneys and clients who share privileged communications via email have waived the privilege because of Outlook's or Gmail's terms of service that say that the service can train on the contents of the emails for whatever reasons. In fact, I do recall that argument being made a long time ago, and I can say that it has been squarely rejected out of hand in every jurisdiction and court I have ever appeared. I don't know anyone who would even make such an argument today. (I'll distinguish the different case of an employee suing their employer but using the employer-issued email account to communicate with outside counsel about their employment claims; that scenario really is a waiver because the employee's contract with the employer typically includes a provision that the emails are owned by the employer and may be reviewed by them, which is very different than having an automated Gmail or Outlook script processing metadata or even data from massive numbers of emails.) In every jurisdiction I have ever appeared, the waiver of privilege only arises from copying a third party, not from using email, or text, or Teams, or Zoom, to communicate with a client in a manner that otherwise would be considered privileged but for the medium of communication. It is possible that under particular terms of service, a different result might be warranted, such as if the model also includes terms that say the engineers might read the actual contents of chat histories, but otherwise, the OpenAI or Claude Terms of Service seem like an awfully thin reed upon which to stack the entire weight of this theory of waiver.
This is not legal advice, and no attorney-client relationship is formed; I'm just stating my opinion while indicating that this is not the way I think the law should be headed.