This is the part where the honest answer is that it has not been resolved. Be careful of anyone who tells you otherwise.
Start a conversation with the AI Adoption Concierge, already scoped to privilege & work product. Pick a starting point, or describe your situation directly.
Whether processing privileged material through a third-party AI system affects privilege is not comprehensively settled, and firms should treat confident answers in either direction with suspicion. There is existing doctrine covering disclosure to vendors and agents that plainly bears on it, and there are meaningful differences between a system that retains and trains on inputs and one contractually barred from doing either. What there is not, yet, is a developed body of authority applying those principles to these tools across jurisdictions. The practical consequence is that most firms manage the uncertainty conservatively rather than resolving it — and that a firm's position should be a deliberate choice made with its own counsel, not an assumption.
Framed rather than answered, because framing them accurately is what a firm can actually use.
And if so, whether existing vendor and agent doctrine covers it in the same way.
A system that retains and learns from inputs is arguably different from one contractually barred from both.
Whether AI-assisted work product carries the same protection, and whether the prompts themselves are discoverable.
An emerging question: whether what a lawyer asked a tool is itself subject to discovery.
Where processing occurs in another jurisdiction with different protections.
Whether onward disclosure down a model supply chain is a disclosure the firm has effectively made.
How firms manage the uncertainty.
Low probability in most matters, severe where it lands.
A vendor asserting that using their product cannot affect privilege is making a claim about doctrine, not about their software. Treat it as marketing and take advice in the jurisdictions that matter to the firm.
It materially improves the position and it is not a guarantee, and firms should be clear-eyed about the distinction. Contractual commitments against training, human review and retention reduce the factual basis on which an adversary would argue that a meaningful disclosure occurred, and they demonstrate the firm took the obligation seriously. Whether that is sufficient in a given jurisdiction on given facts is exactly the question that has not been comprehensively answered, which is why the conservative handling of the most sensitive material persists alongside enterprise terms.
It is an emerging question rather than a settled one, and firms have started to consider it seriously. Prompts may contain counsel's analysis, strategy and mental impressions — the classic core of work product — but they also sit in a vendor's system rather than the firm's file, which complicates both the protection argument and the practical question of who holds them. Some firms have begun treating prompt content with the same care as any other work product, on the sensible basis that the question will be litigated eventually and they would rather not be the test case.
Most firms apply a stricter rule to a small category — internal investigations, matters under a protective order, anything where a privilege fight is foreseeable — and either exclude AI tools entirely or restrict them to tasks that do not involve the sensitive material. That is not a statement that the analysis differs legally; it is risk management under uncertainty. It also has a practical benefit: it forces the firm to identify which matters those are, which is useful for other reasons.
It can, and it is worth asking about early. If a client has processed the same material through their own systems, or shares privileged material with an AI tool their firm operates, the disclosure landscape is broader than the firm's own practices. This is increasingly relevant with in-house teams adopting AI quickly, and it argues for a conversation about tooling on both sides at the outset of sensitive matters rather than a discovery of it during a privilege dispute.
Describe your most sensitive matter types. The Institute will help you frame the questions for your own counsel.