All right. A lawyer is not a bus. And it turns out a lawyer's not a robot, either. I'll explain why. When I was in law school, I was the first year. This is going way back in the 90s, folks, but I was the first year that we had to take something called the Model Professional Responsibilities Exam, or the mpre. I think that's what it is. At any rate, I took it. I took a class in order to pass that test, sort of like the sat. And all I remember from that class is the teacher saying, a lawyer is not a bus, meaning the lawyer didn't have to stop at every single corner and pick a client up and do the case. So if there's a case you don't like or you're not qualified to do, you could not. You could just agree not to accept the case. Unlike a bus, where you have to stop at every corner and pick up all the riders. So what's that to do with robots? Well, it turns out in the. New York is. New York is evaluating the implication of AI in the legal field. And here's how. There's a case, United States vs. Hepner, up in the Southern District of New York. It's a federal case. It's a fraud case where Hepner is accused of some sort of securities fraud. He's got a company. It's a white collar prosecution. Well, being an enterprising owner of a company, this guy is probably a pretty capable dude. And what does he do? Well, he talks to his lawyers and he gets some advice, and they're gathering information, and then he plugs it into his own personal AI system. And I guess what he does on some level is he asks AI to give him some analysis of his best defense. Well, guess what happens. The federal government executes a search warrant at the guy's house or the office, and they seize all his digital media, his storage devices, his computers, his phones, documents. Used to be, in the old days, when we had a white collar case, you would see these, like, dollies full of banker boxes of documents these FBI guys are wheeling out. Not now. It's probably all contained in one duffel bag. Because what they do is they just grab the storage devices or the laptops, some documents, obviously, but what they took here included the results of the AI search that Hepner had done to figure out his defense. And, you know, the government's like, ooh, what a gold mine. Now I know everything this guy's thinking. We've got information from his attorney that this guy's plugged into AI We've got what AI is saying, so we know the strategy. It's like, it would be like finding the playbook of your enemy in a football or of your foe in a football game. Now this of course goes to court because the defense is going to go ballistic and say, wait a minute, wait a minute, wait a minute. This is privileged information. You can't have it, you can't use it. You never should have gotten in the first place. And we don't. We, we want an order from the court declaring that this is completely unusable by the federal government. Well, even that has its own problems because what are they going to do? Forget it. You know, once they have the information, it's going to be really hard. There's no AI delete button on people's memories or what they've learned. So some of this is, you know, once the cat's out of the bag, once the toothpaste is out of the tube, whatever stupid cliche you like, you can't unring the bell. There's a third. So the court basically issues a decision that analyzes whether this stuff, this AI generated information was attorney client privilege. And basically it says, no, it's not. And here's why. While information came from the lawyer, initially it went to the client. Then the client took the extra step to plug that in to AI and this is why I said, a lawyer is not a robot. AI is not a lawyer. So this hearkens back. We talked about this a couple times. But it harkens back to what is privileged information. Privileged information is when I, the attorney, have communication with a client that there. And there are no third parties present or listening. Break it down. So first of all, you have to have an attorney and you have to have a client. Then you have to have communication that could be verbal, it could be written, it could be smoke signals, it could be sign language, could be whatever, but it has to be some sort of communication. It doesn't apply when there's no communication and there can't be a non lawyer third party in a room. Now, there's some exceptions. So if I have my staff or employees or even a hired investigator, I believe that's privileged because he's part of my privilege. He's under my hat, under my business. But say I get a guy who comes in and mom and dad are in my lobby and they want to come in and talk about the case. And of course they do because they've got the checkbook or the credit card and they're paying for the fees. And they say, well, I don't care what Junior says, whether he wants us here or not. We, we're coming in the meeting because we're paying. And I would say, well, hold on a second, wait a second, wait a second, wait a second. We can't do that because the things Junior tells me in the room with you present are not privileged. Meaning in theory, I, as the lawyer could even be asked what was said. And certainly the parents could be asked what was said. And there's no protection of the privilege because it gets destroyed as soon as there's a third party, non lawyer, non staff member present for the communication. So back to the robot. It doesn't fit for all sorts of reasons. First, the robot's not a lawyer, it's not a person, and that's problematic. Secondly, the court noted that the robot AI had some disclaimers talking about that you're not waving. I don't think they use that word. But you're acknowledging that that information is going to this third party source and they can do things with it and you're sort of giving up your rights. It's a lot like the analysis we're using now for things like Snapchat, Google or whatever. I mean, if you're signing these acknowledgments and you're giving Google or Snapchat or in this case AI permission to use this information, you're giving up some expectation of the confidentiality of the communication that you're having with AI. And for these reasons, the court basically said, look, sorry, I get it, we're on the threshold of a whole new generation of technology here. But applying these old rules to the new technology, we're not seeing any privileged communication. This has some fairly significant implications for what I do for a living and certainly clients in this kind of situation. I imagine first and foremost, the lawyers got a club and is beating this guy over the head saying, what in the heck were you thinking? And sometimes, you know, I'm not criticizing this guy too much because, look, I get it. He runs a company. He's used to making decisions. He likes to have lots of information. He's probably one of these very, very capable guys who wants to know everything and dare I even say, maybe even a little bit of a control freak in a good way. But he's trying to just glean as much as he can. So he sent it out into the AI world, not thinking anything about it, just like he solve any other problem. But the lawyer is going to be saying, dude, what are you Doing. You can't do that. It's too late. But then maybe take this and shift it over a little bit. Lots of lawyers or say, when's the last time you're on a zoom? And there's a little disclaimer that comes up that says somebody is recording this or this is getting transcribed by some AI generated transcription product, or even this very podcast. We use transcription software. Now, this isn't privilege, but you get it. I mean, there. There is a computer or a robot transcribing communication. And if that zoom is between an attorney and a client and it's not some special. Actually, forget about the exception. I'll think about. I'll talk about what might fix it in a second. But if that zoom is recording that communication, and in theory, that's probably not privileged anymore, if you're going to take this to its logical extent. So we as lawyers have to be ultra careful. Now, what about. I know these devices are getting popular. Looks like a little credit card, or sometimes they look like a pen. I forget the company. But you put them on a conference table in a meeting and AI generates a summary, a transcript, and it saves it in your documents. I think there's going to be a significant question based on this decision and where it goes, but whether that's actually privileged information, because AI, the robots present in the room, and in theory we have given some sort of disclaimer or we've signed some sort of disclaimer saying that this platform can use this service. This is why people hate lawyers, right? Because the law gets this hyper technical and nobody thinks that this. But anyway, lawyers often create our own platforms to deal with this stuff. So for instance, I have practice management software in my law practice where there's. I have. It has its own messaging system. I try not to use email with clients anymore, often for this very reason. Actually, two reasons. One, because I want to make sure everything is kept confidential in my messaging platform that's created by lawyers for lawyers and sort of understood to be confidential and privileged. And two, it helps us keep track of all the communication. It doesn't just get lost in an inbox full of thousands of emails. The other thing that practice management software has is a texting platform. So clients hate me for this because the first thing I tell clients is, I'm not going to text with you for business. And people love to text. I text all the time. I text my people I work with in business or not in legal business, but say a contractor or whoever. I text all the time, but I don't do it in my legal practice because there's huge questions about this. First, who's listening or who's responding to the text message or who's on the other side? We don't know for sure because there's no secure login mechanism. And then secondly, and maybe more practically from my standpoint, how many texts you get a day that get pushed down to the bottom of the fold or below your. People don't even know what a fold is anymore. It used to be that if you had a paper, you'd fold it in half and be below the fold, but it gets way down at the bottom of your text list and you forget all about it, so you don't keep track of it. But for these reasons, lawyers create their own software platforms to deal with this. And emerging. I get ads for it and emails for it every day.is Attorney AI Software created by the big, I'll call them, conglomerate of companies who sell stuff like this to lawyers. And I think that's where this is going to have to go because we're going to have to know that when I put a recording device down or I use AI through Adobe to summarize something, or if I use it through some other transcription service to give me a transcript and a summary, I need to know that's privileged. And this decision, while it's only, I guess it's still now only at the trial court level, meaning the judge sitting on the case has made a decision and a ruling. What's going to happen here is that the defense is most certainly going to appeal that and they're going to ask the court of Appeals to review it. And it may even matriculate all the way up to the United States Supreme Court to get some sort of guidance on how this works. But I would use this as a cautionary roadmap or sign to say, let's all attorneys, clients, anybody involved in the legal system, let's be very careful about how we're using AI because, you know, it's one thing, and I will acknowledge, I think it's a far less likely scenario that the government is going to come knocking on my law office door with a subpoena and a search warrant to get all my AI transcribed communication. Could it happen? You know, I get paid to worry about stuff like that, so I'm going to be very cautious about how I deal with it. I think more likely this is a cautionary tale or just as like I want to say more, but let's focus on the client side of things. Don't Use AI to analyze your defense. Don't do it. Come into the law office and talk to the attorney about it and have a discussion. Let's do it the old fashioned way. And attorneys, be careful what you're using. Be careful when the notice comes up on your zoom meetings that it's being recorded by somebody because it's not privileged then, or at least there's a good argument that it's not privileged. This always sort of irks me when I see this and sometimes I click no or no, I tell somebody, don't record this, I don't want this. And here's another place that can come up that I think we have to be very cautious about. A lot of lawyers tell their clients, go home, write me a big old summary of what's going on and then bring it in. And you know, I think there's a good argument that that is because the attorney requested it. That's attorney client privilege. But, but what if you ran it through AI because you're not a very good writer and you're just saying, look, I clean this up, make it, you know, beef it up, throwing some charts and graphs, making an A, you know, make it look good and you send it off to the lawyer. That way you may be waiving that privilege because then you've given up some of this information to the AI platform. So look, this is great stuff. We are on the precipice of all sorts of new legal precedent on this AI stuff, and maybe this is just the first little step into it. Look, thanks for listening. If you've got a question or a comment or a topic you want us to talk about, leave it in the comments. We don't do legal advice here, so I get lots of those. And look, I just can't give you legal advice here. I love talking about legal issues though, and that's what we're doing here. So Lawyer Talk podcast, off the record, on the air till now.