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“Closed” AI systems and legal privilege
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This article gives an overview of the risk of a lawyer waiving legal privilege by using a generative AI system. While the risks of using publicly available, or “open” generative AI tools are well known, there has been less discussion to date of the risks of using “closed” AI systems. This article explores what is meant by a “closed” AI system and highlights recent judicial and regulatory guidance on the use of generative AI. The article suggests that a description of a particular system as “closed” should not of itself be sufficient assurance to a lawyer who is considering inputting client confidential information into said system. The article outlines practical steps that can be taken by lawyers to mitigate the risk of inadvertent waivers of privilege.
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