As artificial intelligence (AI) tools become easier to use and more advanced, attorneys face a key challenge: using technology efficiently while still protecting client privacy. What may seem like a drafting or research step can legally count as sharing information with a third party. This can raise serious concerns about professional duties.
For Virginia attorneys, the risk is higher because the state’s current confidentiality and privilege rules do not clearly address AI tools. Understanding how AI may affect these protections and where gaps may exist is key to keeping competent, ethical practice in the digital age.
The risk of waiving privacy
Entering confidential information into public AI tools, like standard chatbots, counts as sharing it with a third party. Many consumer AI platforms use the entered data to train future models. This can make a client’s information no longer private. In Virginia, the reasonable expectation of privacy no longer exists under these circumstances.
Absence of a legal bond
Using an AI is not the same as getting legal advice. It also does not create an attorney-client relationship. Because there is no such bond, AI prompts and output usually lack legal protection. Opposing counsel or law enforcement may be able to obtain it.
Disclosing information with an AI provider can also waive attorney-client privilege. This may be seen as sharing outside the protected relationship. It is usually allowed only if the disclosure is necessary to get legal advice or fits a recognized exception.
Work-product doctrine in the age of AI
For a document to qualify as a protected work product, the creation must be under an attorney’s direction. This is the case in United States v. Heppner (2026), where the judge rejected the defendant’s privilege claims on AI-generated materials made without the lawyer’s instructions.
Best practices for Virginia attorneys
Lawyers can protect client relationships by using AI to screen information. Additionally, it is best to rely on enterprise-grade tools that offer strict data-privacy opt-out agreements. Attorneys can also clearly inform clients about the risks of using AI by themselves to document their cases. Should a client want to use AI, lawyers must closely direct all assisted and generated work.
Helping maintain legal confidentiality
While powerful, AI cannot replace the protections of a human attorney-client relationship when handling criminal charges or divorce cases need the utmost care to preserve a client’s dignity. A lawyer can handle all data entered into an AI application to help protect privilege in sensitive legal matters.