If you run a growing business, AI note-taking can seem like a simple, easy way to boost your productivity and make sure you don’t miss any important details when you’re heading into your fifth meeting of the day. It is genuinely convenient to walk away with a transcript of every conversation without taking notes yourself or hiring an assistant to do it for you.
However, there are some special considerations to take into account when meeting with your legal counsel. Attorney-client privilege protects confidential communications between you and your attorney; what happens when you invite a third party into the discussion? Although you can consent to including a third party’s involvement in a discussion with your attorney and maintain the protection of privilege, the communication must remain confidential for this to apply.
Many AI note-takers share data with third-party vendors that process conversations on external servers, store transcripts in the cloud, retain records and summaries, use data to train or improve their models, or share information with other software systems-all activities that may compromise the confidentiality that attorney-client privilege requires.
As an example, imagine that you set up a meeting to discuss firing an employee who is not meeting performance standards. You want to discuss with your attorney the best way to let them go without violating their employment contract or state labor laws. To ensure you remember everything that is discussed in the meeting, you also include your AI note-taker.
After letting the employee go, they sue the company for wrongful termination. Normally, your discussion with your attorney would be protected by attorney-client privilege. However, if the employee’s attorney finds out that you used an AI note-taker in the meeting, they could request that transcript to support their case, arguing that by including the AI note-taker, you effectively waived your right to attorney-client privilege.
The risk is not limited to a single lawsuit. Once a court finds that privilege has been waived as to a particular communication, that waiver can extend to the entire subject matter of the conversation, potentially exposing far more than the transcript itself.
If you rely on AI note-takers, a few precautions can help preserve confidentiality:
Review the vendor’s terms of service and privacy policy to understand how conversations are processed, stored, and used, and whether data is used for model training.
Disable AI note-taking, recording, and transcription for any meeting with legal counsel, or confirm in advance with your attorney whether its use is appropriate.
Use enterprise or on-premise tools that offer contractual confidentiality protections, data-retention controls, and an option to opt out of model training.
Limit access to any transcripts that are created, and delete them when they are no longer needed.
When in doubt, take notes yourself or ask your attorney to prepare the record, which keeps the communication within the protected relationship.
This isn’t just a theoretical concern. Courts have long held that attorney-client privilege only protects communications made in confidence, and the general rule is that letting an outsider sit in on a lawyer-client conversation waives that privilege-meaning the third party, or even your attorney, could later be forced to disclose what was said. That is exactly the risk an AI note-taker creates: an outside service listening in and keeping a record of your conversation.
There is a narrow exception when a third party is genuinely necessary to help you communicate with your lawyer-an interpreter, for example, or an assistant acting as your agent. But courts distinguish someone who is truly necessary from someone who is merely convenient, and an AI tool that stores data on outside servers, retains records, and may use them to train its models is a hard sell as “reasonably necessary” to your legal advice.
The law here also varies from state to state and is not litigated often, which adds even more uncertainty-and you generally do not want to be the test case.
Attorney-client privilege is not the only protection in play. A related protection, the work-product doctrine, shields materials your attorney prepares in relation to your matter-things like notes, legal strategy, and mental impressions about your case. The good news is that work-product protection is more durable than the privilege: unlike attorney-client privilege, it is generally not waived simply by sharing the material with a third party. It is typically waived only when the material is disclosed to an adversary, or in a way that substantially increases the likelihood that an adversary will get it.
That distinction matters for AI note-takers. A transcript that reflects your attorney’s strategy and analysis might still enjoy some work-product protection even if the attorney-client privilege has been waived. But relying on that is dangerous. If your AI vendor stores transcripts insecurely, shares them with other systems, or the records can be pulled into discovery, you may well have disclosed that material in a manner that substantially increases the odds it reaches an opposing party-which is precisely what waives work-product protection. In short, an AI note-taker can put both protections at risk at once.
AI note-takers offer real convenience, but that convenience can come at the cost of one of your most important legal protections. Before inviting an AI tool into a conversation with your attorney, weigh whether the productivity gain is worth the risk of waiving privilege-and when the stakes are high, keep the conversation strictly between you and your counsel. A little caution now can save you from a costly surprise later. If you have questions about protecting privileged communications or want guidance tailored to your business, Bend Law Group is here to help - don’t hesitate to reach out.
This article is provided for general informational purposes only and does not constitute legal advice, nor does it create a lawyer-client relationship. You should not act or rely on this information without seeking the advice of a lawyer regarding your specific situation.
Whether you're starting your first company, expanding your team, raising capital, buying another business, or preparing for an exit, we'll help you approach your next decision with clarity and confidence.
