Legal Insights
Earlier this year, I wrote an article highlighting things to consider before using AI note-taking tools. Since then, I’ve seen a significant increase in clients sending me, and colleagues at my firm, AI-generated content. Especially within my family law practice, clients have been using AI to create outlines of their personal experiences, draft proposed pleadings, and even respond to attorney emails. In family law, where cases revolve around clients’ lives, finances, and personal information, the risks associated with AI use are significantly greater. This DE Insight focuses on the risks associated with the use of AI tools in such cases and recommends proactive steps attorneys and you as a client can take to mitigate the risk of such AI tools.
The Risks of Sharing Personal Data in AI Tools
Many people rely on technology to manage daily life, from online banking to digital calendars. When family law issues arise, that reliance on technology can become risky. You may upload draft custody agreements into AI tools and share your sensitive documents, often without realizing the potential consequences, including the risk that your documents and information could be used or shared without your knowledge. Protecting privacy is not just a best practice; it is essential for safeguarding your family law matter.
You may not think you are using AI, but often you are. You might ask ChatGPT or Google Bard questions about divorce settlements, upload bank records or parenting plans into AI document summarizers, or use apps that transcribe conversations and summarize texts. Even small actions, like asking an AI to help draft an email, can have consequences if the information shared is stored, shared, or accessed by others. With the expansion of AI applications appearing in non-AI software (such as the AI overview in Google searches and Copilot being a native function in new versions of Windows), even those who are not intentionally using AI programs must be careful.
Anything shared with a third-party platform, especially one that is not designed for use in legal matters, can be stored, shared, or analyzed. Unlike attorney-client communications, information given to an AI tool is not privileged or protected. Once it leaves your control, there is no guarantee where it will end up or how it may be used. Breaches, system errors, or misuse of stored data are always possible, making careful consideration before uploading or inputting information critical. Using AI notetakers could even be deemed a waiver of attorney-client privilege, as the communications are technically no longer private once shared with an AI company.
Another concern is misuse of data. Many free AI tools rely on user inputs to train their models. Personal details, financial information, or intimate accounts of relationships could be incorporated into AI outputs provided to other users. What you may believe to be private input may influence other AI users’ results.
AI-generated content can also create inadvertent evidence. In family law, opposing counsel may request relevant information through discovery, either from you or third parties via subpoenas. If you have used AI to review attorney-client communications, draft documents, or summarize texts, content once considered privileged may ultimately become discoverable.
Proactive Steps Attorneys and You Should Take
Attorneys can take proactive steps to help clients avoid these risks. Early in the engagement, attorneys should discuss AI use with you as the client and establish clear guidelines for when and how AI may be used. This includes advising on which platforms are safe, what types of information should never be uploaded, and how to store and transmit information securely. Attorneys can also implement internal practices, such as using encrypted communications, secure client portals, and controlled file-sharing systems. Periodic check-ins regarding technology use can reinforce safe practices and prevent accidental disclosures during litigation or discovery.
You as the client can also take direct steps to protect your information. Keeping sensitive data offline whenever possible, drafting or editing legal materials in secure, lawyer-approved systems, and asking your counsel before uploading any personal or financial information are all critical precautions. Using encrypted email, client portals, or secure document-sharing platforms ensures that information remains accessible only to authorized parties. You as the client should also be aware of metadata in documents, which can reveal edits, authorship, and prior versions. You must also be proactive about limiting what you share on social media, as AI-driven algorithms can infer private details from posts, photos, and patterns of engagement. In family law cases, seemingly harmless online activity can be used to challenge credibility or influence custody and support decisions.
The legal profession is responding to these challenges. Law firms are vetting AI vendors, establishing internal policies, and training staff to recognize privacy risks associated with AI. Ethical guidance from state bars continues to evolve, but the principle remains: your data should be treated with the same care as if it were being handled in open court.
Conclusion
AI tools can make life easier, but there is always a trade-off. AI tools do not preserve attorney-client privilege or any other confidentiality. In family law cases, where personal details are central to many legal issues, a single data leak or misplaced upload can have serious consequences. By being cautious, asking questions, and maintaining open communication with your attorney, you can enjoy the benefits of technology without putting your privacy or case at risk.
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This DarrowEverett Insight should not be construed as legal advice or a legal opinion. This Insight is not intended to create, and receipt of it does not constitute, a lawyer-client relationship. The contents are intended for general informational purposes only, and you are urged to consult your attorney concerning any particular situation and any specific legal question you may have. Please reach out to us if you need help addressing any of the issues discussed in this Insight, or any other issues or concerns you may have relating to your business. We are ready to help guide you through these challenging times.
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