Using AI and Legal Advice: A Hidden Risk to Privilege
Open-source artificial intelligence (AI) software, such as ChatGPT and other publicly available platforms, is now commonly used to summarise documents, explain difficult concepts, and generate written content. However, while these tools are helpful in many circumstances, they present a serious but often overlooked risk in legal matters.
A recent Tribunal decision suggests that legal advice may lose its privilege if it is added to open-source AI tools. This means that the advice could become disclosable to the other side during the disclosure stage of proceedings.
What is Legal Privilege?
Legal professional privilege is a fundamental protection in English law that allows you to openly communicate with your solicitors and barristers, knowing that their advice and discussions will remain confidential.
There are two main types of legal privilege:
- Legal advice privilege: protects confidential communications between you and your lawyer for the purpose of giving or receiving legal advice.
- Litigation privilege: covers communications with third parties, such as experts or witnesses, where litigation is ongoing or reasonably anticipated.
In essence, legal privilege exists to ensure that you can obtain honest and effective legal advice without fear that your communications will later be used against you.
Disclosure and Waiver
In legal proceedings, each party is required to provide relevant documents, whether or not they support that party’s case, to the other side. This is known as disclosure. Usually, privileged documents do not need to be shared, but only while the privilege is maintained.
Privilege can be “waived” if confidentiality is lost. This can occur where advice is shared outside the lawyer-client relationship or where information comes into the hands of a third party without sufficient safeguards in place.
Once privilege is waived, the document may have to be disclosed and can be used as evidence against you.
The Risk of Using AI Tools
Open AI systems are not private legal environments. Information entered into them may be stored, processed, or accessed under the platform’s terms of use.
By entering legal advice or other privileged documents into such a platform, you may be considered to be sharing that advice or document with a third party. This risks destroying the confidential nature of the document or advice, even if you did not intend to do so.
Recent Updates A Clear Warning
In Munir v Secretary of State for the Home Department [2026] UKUT 81 (IAC), the Upper Tribunal addressed the use of AI in legal work.
The Tribunal stated that uploading confidential documents to an open-source AI tool such as ChatGPT is effectively equivalent to placing that information in the public domain, breaching confidentiality and waiving privilege.
In the speech by the Chancelor of the High Court on 22 April 2026, the Chancellor stated that “on any view one cannot assume that confidentiality is preserved” when discussing the entering of legal advice into public AI systems.
Both the comments by the Tribunal and the Chancellor provide a strong indication of how Courts may approach the issue in the future.
What This Means for You
The consequences of waiving privilege can be serious and can include:
- Your opponent may gain access to your legal advice or strategy;
- You may be required to disclose related documents;
- Your position in litigation could be significantly weakened;
- Costs and delays may increase.
Importantly, once privilege is waived, it cannot be restored.
Practical Guidance
To protect your position, you should avoid pasting legal advice into open AI tools such as ChatGPT, and you should speak to your solicitor before using AI in relation to your case.
For companies, internal AI policies and training should distinguish between open-source, public AI tools and closed-source internal systems.
Get in touch with Enoch Evans Solicitors – visit https://enochevans.co.uk/services/