Using AI drafting without risking privilege

Where the risk sits

Legal professional privilege (attorney-client privilege in the US) protects confidential communications made for the purpose of legal advice. With AI drafting, the questions that matter are where client information goes, who can see it and whether confidentiality holds along the way.

I am Filebird’s General Counsel, and I sign off every policy we publish, including the one that governs Filebird Assist. This article explains how we think about the issue. It is not legal advice, and your obligations depend on where you practise.

The risk is not new. Firms have always had to think about where client information goes, whether to a typist, a cloud document store or an overseas translation service. AI tools raise the same questions faster, because they are easy to use and easy to use without asking anyone.

Inaction carries a risk of its own. If the firm does not offer an approved tool, some people will use their own. A clear policy with a tool that meets it is safer than a ban that nobody follows.

Questions to put to any AI tool

Before anyone at your firm pastes client material into a drafting tool, get written answers to these. If a vendor cannot answer them, that is your answer.

• Is client content used to train models, for you or for anyone else?

• Where is the data processed and stored, and for how long?

• Who at the vendor can access it, and in what circumstances?

• Can you delete it, and will the vendor confirm deletion?

• Does the draft stay inside the matter, or in a separate account?

A consumer chatbot used on a lawyer’s personal account fails most of these. It is the most common risk we see, and it usually happens because nobody gave the team an approved alternative.

Ask the same questions of any tool already in use, not only new ones. Many document and email products have added AI features in recent updates, and the answers may have changed since you last checked.

Confidentiality is wider than privilege

Privilege is the headline issue, but it is not the only one. Your duty of confidentiality covers far more information than privilege does, and it applies whether or not a document would ever be privileged. Client names, financial details and the fact that someone is a client at all are confidential.

Privacy and data protection law may apply as well, particularly to personal information about clients and other parties. If your firm works across borders, where the data is processed can matter as much as who processes it.

How Filebird Assist handles it

Filebird Assist drafts inside the matter. It works from the documents and notes already on the file, and its drafts are saved to that matter like any other document. A lawyer reviews and signs off every draft before it goes anywhere.

We publish how Assist processes data in our privacy policy and data processing terms. Read them rather than taking this article’s word for it.

Assist also keeps a record of what it was asked and what it produced, attached to the draft on the matter. If anyone later asks how a document was prepared, the file can answer.

Assist does not send client documents to train models, and access is controlled by the same matter permissions as the rest of the file. A lawyer who cannot open a matter cannot use Assist on it.

Checking what the tool produces

AI drafting can be confidently wrong. It can cite a case that does not exist, describe a rule from the wrong jurisdiction or miss a fact that changes the advice. Review every draft as you would a first draft from a junior lawyer you have not worked with before.

• Check every citation and every statement of law against a primary source.

• Check that the facts in the draft match the file, especially names, dates and amounts.

• Read the whole draft, not only the parts that look new.

• Rewrite in your own voice where the advice matters. Clients can usually tell.

The more routine the document, the more useful AI drafting tends to be. A covering letter or a first summary of a long document is a good fit. Advice on a novel point of law is where the lawyer’s own drafting matters most.

Rules for your firm

1. Approve the tools staff may use for client work, and rule out everything else for client material.

2. Require a named lawyer to review and sign off every AI-assisted draft.

3. Keep drafts on the matter, so the file shows how each document was produced.

4. Tell clients how you use AI, in your engagement letter if your rules or your clients expect it.

5. Read your law society or state bar’s guidance on AI, and check it again each year.

Assist gets me to a first draft of a letter of advice in minutes. I still rewrite about a third of it, and the sign-off is what makes me read every line.

Callum Reid, Associate, Ashgrove Legal

The sign-off is the control that matters most. AI can draft quickly, but responsibility for what reaches the client stays with the lawyer who signs it.

Training and supervision

A policy only works if people know it exists. Walk the team through the approved tools and the rules, explain why they matter and make it easy to ask a question. Supervising lawyers should know when a junior has used AI on a draft, and should review those drafts with that in mind.

Revisit the policy as the tools and the guidance change. What was sensible a year ago may already be out of date.