If you're facing a criminal charge, whether you already have a lawyer or not, typing details about your case into ChatGPT, Claude, or Gemini can create a real problem for you. Those conversations are not protected by attorney-client privilege, and a recent federal court decision confirms exactly why that matters. Here's what you need to know before you type another word.
Transcript
Let's talk about ChatGPT, Claude, and Gemini. When it comes to criminal defense, there's something you need to know and understand about what's privileged and what isn't.
If you are facing a criminal charge, whether you have an attorney or not, and you type something about your case into Claude, into ChatGPT, or into Gemini, you are opening yourself up to a world of hurt. That is not privileged information. When you give that information to OpenAI, Anthropic, or Google, it becomes discoverable, meaning the government can get it.
Let's say you've been charged with something as simple as DUI, and you go to Claude or ChatGPT and say, "I got pulled over last night and I blew a .12. I'd had a lot of beer before I got behind the wheel. What's going to happen to me?" That is a conversation that could wind up in front of your judge. That's the type of conversation you have with a lawyer, not with a chatbot. If you have that conversation with your lawyer, it isn't going to wind up in front of a judge or in the hands of a prosecutor.
But here's the other thing. If you have a conversation with your lawyer, and then you go type that conversation, or what your lawyer told you, into ChatGPT, Claude, or Gemini, that can also wind up in front of the judge or in the hands of a prosecutor. For example, if you say, "I've been charged with DUI, my lawyer told me X, Y, and Z, is that a good defense?", anything you've said to the chatbot about that can be put in front of the judge, because you've waived the attorney-client privilege with respect to what you put in there.
So please understand: these are not privileged communications you're having with an LLM or a chatbot. Now, there is a chatbot on our website. The conversation you have with it is, in fact, privileged, because you are seeking legal services through it. But if you put the same information into ChatGPT, Claude, or Gemini, that's not the case.
There was a case out of New York that brought all of this to mind: United States v. Heppner, decided by Judge Jed Rakoff of the U.S. District Court for the Southern District of New York. The court's opinion is limited to the facts of that case. It's not a Mississippi case, and it's not a U.S. Supreme Court decision. But I'd bet a lot of Mississippi judges would go through the same basic analysis that this New York federal judge did.
In that case, the defendant's lawyer hadn't told him to use Claude. He used it on his own, and put the contents of a conversation he'd had with his lawyer into the chatbot. Later, his lawyer couldn't come back and claim that information was privileged just because it originated from a conversation with his client, once the client had, without instruction, put it into the chatbot himself.
So be very, very careful. If you have any criminal charges pending, or think you may be charged soon, don't type anything into Gemini, ChatGPT, or Claude about your case. I know that's hard, especially now that Google automatically runs AI-assisted searches. You may be used to typing a long, detailed description of what you're dealing with into a search bar instead of a couple of keywords, I do it too. But if you're dealing with a criminal matter, don't do that. What you type in is likely to end up in the hands of a prosecutor.
If you have any questions about this, or if you're facing criminal charges, don't hesitate to give us a call here at Eichelberger Law Firm.