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What Actually Happened in the Heppner Case
There is a federal court decision from earlier this year that has been generating a lot of conversation in legal circles, and a lot of confusion. If you have seen headlines like “court rules AI chats are not privileged” or “your AI conversations can be used against you,” here is the accurate version of what actually happened and what it actually means for you.
The case is called United States v. Heppner. A criminal defendant used the free version of an AI tool to generate documents analyzing his own legal situation, then sent those documents to his attorneys. The government wanted those documents. The court said the government could have them. The AI communications were not protected by attorney-client privilege.
Why? Three reasons. First, the AI is not a lawyer, so talking to it is not the same as talking to your attorney. Second, and this is the part that gets lost in the headlines: the defendant used the free consumer version of the tool, and the terms of service for that free version explicitly allow the company to access and review conversations. There was no reasonable expectation of confidentiality. Third, the defendant did this on his own, without his attorneys asking him to or directing him to, so it was not made for the purpose of getting legal advice.
The free version matters. That is not a small detail buried in the opinion. The court’s analysis was specifically tied to the terms of service of the free consumer product. A paid enterprise tool with a data protection agreement and explicit confidentiality terms is a different factual situation that this court did not address.
What This Means for You Practically
If you are a person who sometimes runs legal problems through a free AI chatbot before calling your lawyer, STOP doing that for anything you want protected. Heppner confirms that those conversations are not privileged and can be subpoenaed. The AI is not your lawyer. Talking to it about your legal situation on a free platform is not the same as talking to counsel, and it does not get the legal protection that communications with your attorney do.
This does not mean AI tools are dangerous to use in general. It means you should understand the difference between using AI to draft an email, research a business question, or help with your marketing, that’s all fine (unless you’re entering your trade secrets), and using AI as a substitute for actually talking to your attorney about sensitive legal matters. Those are different things, and Heppner makes the difference consequential.
What About Your Attorney Using AI?
Heppner was specifically about a client using AI on their own. It was not a ruling about attorneys using AI in their legal work. That question is still developing, and there is ongoing guidance from bar associations about what attorneys need to do before using AI tools with client information. The short version: attorneys are being advised to use enterprise-level tools with proper data protection terms, to use placeholder information rather than client-identifying details when possible, and to verify everything an AI generates before relying on it.
If you are working with an attorney and wondering whether they are using AI tools, you are allowed to ask. A competent attorney should be able to tell you what tools they use, what data protections are in place, and how they verify AI-generated work before it goes in your file.
The AI Meeting Notetaker Warning
Here is the AI and privacy issue that is not getting enough attention: AI meeting transcription tools. Tools like Otter.ai, Fireflies, and the built-in AI assistant in Zoom paid versions are increasingly common. They automatically record, transcribe, and summarize meetings. For routine business meetings, they can be useful. For meetings where you are discussing anything sensitive, including conversations with your attorney, they are a significant problem.
When an AI notetaker is running in a meeting, a third-party service is receiving and storing the conversation. That is true even if you technically have “control” over the recording. The transcript and summary that get generated exist as documents outside your protected environment. They could be subpoenaed. They could be hacked. They could be shared accidentally.
If you are meeting with your attorney and either of you has an AI notetaker running, the privilege analysis gets complicated in ways that could be very inconvenient.
My practical advice: if you are in a meeting with your attorney about anything sensitive, ask whether any AI recording or transcription tool is running. You are entitled to know. And if you are running one from your end, turn it off unless your attorney confirms it’s secure enough not to break attorney-client privilege.
The Bigger Picture
AI tools are not inherently dangerous to your legal protection. The risks come from specific, avoidable mistakes: using free consumer platforms for legally sensitive communications, not understanding what terms you are agreeing to when you use a tool, and treating AI as a substitute for actual legal counsel rather than a supplement to it.
If you want the full attorney-level analysis of Heppner, including where most of the published commentary is getting the scope of the ruling wrong, and the complete picture of attorney AI ethics obligations, that is in the companion full-length blog post and podcast episode.
And if you want the full breakdown of how AI affects your copyright, trademark, and patent protection as a business owner or creator, that is last week’s post and podcast episode.
Avoid the legal horrors and keep rocking your IP. If you’re interested in working with an IP lawyer who understands these issues, book a consultation at kingpatentlaw.com.
FAQ: Your Questions About AI and Privilege, Answered (Before They Haunt You)
Q: Can the government subpoena my conversations with a free AI chatbot?
A:
Potentially, yes, and Heppner confirms it. The free consumer tiers of AI tools like ChatGPT and Claude have terms of service that allow the companies to access and review conversations. There is no reasonable expectation of confidentiality, and no attorney-client privilege attaches to conversations with an AI (which is not a lawyer). For anything sensitive, especially anything related to a legal matter, the free consumer tier of an AI tool is not a safe place for that conversation.
Q: Is it safe to use AI to research my legal situation before calling my attorney?
A:
Not really.
For general background research, AI tools can be helpful in preparing for a conversation with your attorney, helping you understand terminology, identify the right questions to ask, or organize your thoughts. The risk is using a free consumer AI tool to analyze the specifics of your legal situation and then forwarding the output to your attorney, which is exactly what happened in Heppner. Those documents are producible. If you want those communications to be protected, have the conversation with your actual attorney.
Q: Should I ask my attorney whether they use AI?
A:
You are absolutely entitled to ask. A competent attorney should be able to explain what AI tools they use, what data handling protections are in place, and how they verify AI-generated work before it goes in your file. Bar association guidance specifically requires attorneys to understand the technology they use and to take reasonable steps to protect your confidential information. If your attorney cannot answer these questions, that is worth knowing.
Q: What should I do if an AI notetaker is running in a meeting with my attorney?
A:
Ask about it. You are entitled to know whether any AI recording or transcription tool is running in a meeting where you are discussing privileged matters. If one is running from your attorney’s side without your knowledge or consent, that raises a real question under bar ethics guidance. If you have a notetaker running from your end, turn it off for any meeting involving sensitive legal matters unless your attorney confirms it’s secure enough not to break attorney-client privilege.
Q: What happens to attorneys who submit AI-hallucinated citations?
A: The sanctions spectrum ranges from monetary penalties and mandatory CLE (Mata v. Avianca, Versant Funding v. Teras) to attorney disqualification and disclosure of misconduct to every client in the attorney’s book of business (Johnson v. Dunn, Byoplanet v. Johansson). The conduct underlying these sanctions implicates Rule 3.3 (candor toward the tribunal), Rule 1.1 (competence), and Rules 5.1 and 5.3 (supervision). The lesson is not to avoid AI; it is to verify every AI-generated citation against primary sources before it goes in any filing.
Q: Does this mean AI is dangerous to use for my business?
A:
No. AI tools are useful for a wide range of business purposes, such as drafting, research, marketing, and administration, and Heppner has nothing to say about most of those uses. The specific risk Heppner addresses is using free consumer AI tools as a substitute for actual legal advice on sensitive matters and then forwarding the output to your attorney expecting it to be protected. Don’t reveal your trade secrets to free AI, either. Understanding that distinction is what lets you use AI tools effectively without creating unnecessary legal risk.
Links and Resources
- Full attorney-focused blog post: https://kingpatentlaw.com/is-your-ai-tool-destroying-attorney-client-privilege-what-every-lawyer-needs-to-know/
- Full attorney-focused podcast episode: https://youtu.be/4zr4qxFPE0g and at Spellbinding IP on your favorite podcast channel
- Blog post on AI and IP for business owners and creators: https://kingpatentlaw.com/ai-and-your-ip-what-every-small-business-owner-actually-needs-to-know-in-2026/
- Podcast episode on AI and IP for business owners and creators https://youtu.be/mA9CNwI3JPs and at Spellbinding IP on your favorite podcast channel
Intellectual property is one of your most powerful business tools. If you’re ready to build a strong brand and protect what you create, you don’t have to figure it out alone.
I help entrepreneurs across the U.S. make smart, legally sound decisions about their intellectual property. I’m an attorney in Champaign-Urbana, Illinois, but I serve intellectual property clients nationwide.
Ready to protect your work? Book a consultation online at kingpatentlaw.com or call 217-714-8558.
For more information on intellectual property and business law, check out the other posts on this site, listen to my podcast “Spellbinding IP: Patent, Trademark, and Business Strategy” on all major podcast platforms (video available on YouTube, Spotify, and Substack), or follow me on social media at @kingpatentlaw.
Avoid the legal horrors, and keep rocking your IP.
