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AI Prompts as Work Product: The Civil Courts Answer Heppner
In March I argued that Heppner’s narrow view of AI work product would not survive contact with civil litigation. Three decisions, capped by the Nassau County order in Assini v. Hayward, have now protected a self-represented litigant’s ChatGPT history from discovery. They reach a defensible result through reasoning that borrows the wrong test and skips the analysis the result requires.
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Client-Side AI Recording and NYC Bar Formal Opinion 2025-6
The NYC Bar’s Formal Opinion 2025-6 addresses what happens when clients use their own AI tools to record and transcribe conversations with their lawyers. Read alongside Heppner, the opinion establishes one clear duty (warning clients of AI-related privilege risks) and suggests two further responses (providing privilege-preserving alternatives and redesigning communication channels) that the rules do not yet require but that firms should weigh in light of the foreseeability shift Heppner introduces.
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The Duty to Inform: Client AI Use as a Known Hazard After Heppner
Heppner established that consumer AI conversations are not privileged. But the case also raises an uncomfortable question for practicing lawyers: if a known hazard to the privilege now exists, do you have a duty to warn your clients about it? The answer, under existing ethics rules, is almost certainly yes.
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