What have bar authorities actually said about AI notetakers?
The most developed guidance comes from the New York City Bar, in two opinions a little over seven months apart. Formal Opinion 2025-6, issued 22 December 2025, addressed AI notetakers on client calls. Formal Opinion 2026-2, issued 5 August 2026, extended the analysis to calls with people who are not the client.
The operative language is direct: attorneys must not surreptitiously record conversations with any third parties. Both opinions frame the requirement as affirmative all-party consent rather than notice or an opportunity to object.
These are New York City Bar opinions. Professional conduct rules are adopted state by state and diverge, and neither opinion binds another jurisdiction. They are useful as a framework and as an indication of how this analysis is being run, not as a statement of what any given firm’s rules require.
Does getting consent solve the problem?
No, it solves the first half. Consent addresses the recording; it does not address what happens to the recording afterwards, and that second question is where firms are exposed without realising it.
The practical distinction the opinions draw is between internal firm meetings, client calls and external calls. Internal meetings are the easy case. Client calls require consent on the record and an attorney who verifies the output rather than filing it. Calls with opposing counsel, witnesses and prospective clients are treated as default-off under Formal Opinion 2026-2, which is a materially different posture from "ask first".
What does the notetaker vendor do with the transcript?
It depends entirely on the terms, and at least one widely used product’s published privacy policy describes training on transcriptions which may contain personal information. That is the vendor’s own description of its practice, not an allegation.
The litigation risk is live rather than theoretical. In re Otter.ai Privacy Litigation survived a motion to dismiss on wiretap and biometric-privacy theories on 13 August 2026. A case surviving dismissal establishes nothing about the merits, and it does establish that the theories are not frivolous.
For a firm the question is narrower than the class-action theory: whether privileged client conversation is being processed under terms that permit training or third-party disclosure. That is answerable by reading the contract the firm signed, which is a short exercise almost nobody has done.
Is there a privilege dimension to notetakers?
Yes, and it is unsettled as of September 2026. The authorities being marshalled are Kovel, 296 F.2d 918 (2d Cir. 1961) on agents assisting counsel, Monterey Bay Military Housing v. Ambac (S.D.N.Y., 19 January 2023), Warner v. Gilbarco, Inc. (E.D. Mich., 10 February 2026) on work product not being waived absent a material increase in the likelihood an adversary obtains it, and United States v. Heppner (S.D.N.Y., 17 February 2026) on consumer-grade generative AI lacking a reasonable expectation of confidentiality.
No court has squarely held that using an enterprise notetaker under a no-training contract waives privilege. That is a live argument, not a settled rule, and a firm relying on either answer is relying on a prediction.
What does a defensible notetaker workflow look like?
For a client meeting: all-party consent on the record, recording processed inside the firm’s existing data boundary, an attorney who independently verifies the output against the recording rather than accepting the summary, and deletion under a written policy that is disclosed and actually followed.
For an internal firm meeting: native platform AI is generally the low-risk option, with the organiser editing before circulating and nothing entering the matter file unreviewed.
For external calls with opposing counsel, witnesses or prospective clients: default off.
The word doing the most work in the client-meeting version is "actually followed". A deletion policy that exists and is not executed is worse than no policy, because it has been disclosed to the client as a representation.
What is unsettled here?
Whether an enterprise deployment under no-training terms preserves privilege, how jurisdictions outside New York will treat the same questions, and how the wiretap and biometric-privacy theories in the pending litigation resolve. All three are open as of September 2026.
What is stable enough to act on: the consent requirement is the least contested part of the analysis, and the vendor terms are readable today. The Institute’s Governance & Policy area covers policy drafting, and Confidentiality & Security covers vendor diligence.