AI at Your Own Risk

These days, it is nearly impossible to go on the internet or social media, turn on the TV or open a newspaper without seeing a story or post about artificial intelligence (AI) – or, perhaps, a story or post that is AI. Without question, AI is here, and it will continue to impact all parts of life. Lawyers are navigating these challenges in our daily practice, and not only in the ways you might expect. Beyond the familiar issues about how to incorporate AI into our workflows, what best practices apply to AI-assisted research and briefing and what ethical obligations govern its use, we are increasingly called upon to counsel clients about the risks of using AI in their own lives.

In family law specifically, we are seeing clients turn to AI as a personal research tool, communication editor, and parenting resource. Who should you hire as your divorce lawyer? Ask AI. How should you discuss body image issues with your child? Ask AI. How can you remove the emotion from an email to your soon-to-be ex-spouse? Ask AI. How should you interpret a provision in your parenting plan? Ask AI. The examples are endless.

However, anyone involved in a divorce or parenting dispute should use AI for advice at their own risk. Not only are AI hallucinations – responses that are false or misleading yet presented as fact – a genuine concern, but your AI history could become a treasure trove of information for the opposing party. Would you want your soon-to-be ex-spouse to learn that you asked AI, two years before your divorce began, about the easiest ways to get caught having an affair? Or how to prevent assets from being traced? Even seemingly mundane queries, let alone sensitive searches, can take on outsized significance in litigation. Imagine asking AI for advice on discussing a sensitive medical issue with one of your children. What if the other parent was unaware of the medical concern? Or what if the other parent objects to you entering confidential medical information about your child into a non-confidential platform? Your judgment could be called into question in ways that affect legal custody decisions.

You should also exercise caution when using AI for case strategy or advice while your matter is ongoing. A recent decision from the United States District Court for the Southern District of New York, United States v. Heppner, held that AI communications are protected by neither the attorney-client privilege nor the work product doctrine. The reasoning is straightforward: AI platforms are not attorneys and do not maintain confidentiality. Accordingly, you should assume that any case-related advice or assistance you obtain through AI may be disclosed to the opposing party, or to the court, upon request.

What are Best Practices for Using AI During Your Family Law Case?

If you are using AI tools, while family law proceedings are ongoing (or in general), here are some important guidelines:

• Do not enter confidential information, personal identifying information, or sensitive case details into AI platforms;
• Do not input privileged communications from your attorney, therapist, or other professional advisors into AI platforms;
• Be sure to rewrite any AI-generated content in your own words, reflecting your personal voice and reasoning;
• Independently verify all information and advice provided by AI before relying on it;
• Preserve your complete AI search and conversation history if you are involved in litigation or anticipate potential litigation.

The familiar warning “anything you say can and will be used against you in a court of law” applies equally to your use of AI tools. While AI can be a valuable resource, it is essential to approach it with caution and a clear understanding of the risks involved, particularly during ongoing litigation.