THE OKLAHOMA BAR JOURNAL 62 | AUGUST 2026 documents, emails, texts, letters, court papers, records or anything we have discussed. Using AI for your case could affect confidentiality, privilege or strategy. Lawyers should also explain why this matters. Clients may assume that a chatbot conversation is private because it feels private. They may not read terms of service, privacy policies or data-retention settings. They may not know whether the tool stores prompts, uses inputs to improve the model, allows human review, retains uploaded files, shares information with affiliates or responds to legal process. Ethics guidance for lawyers has repeatedly emphasized that lawyers must understand how AI tools handle information, including data retention, data sharing and the use of prompts or outputs for training. Clients need a simplified version of the same warning. The instruction should also cover AI meeting tools. More clients are using AI notetakers, transcription tools and meeting summaries. If a client records or transcribes a lawyer-client conversation using the client’s own AI tool, the lawyer may not know where the recording is stored, how long it is retained, whether it is used for training, whether the summary is accurate or whether it could later be obtained in discovery. Recent ethics and risk-management guidance has cautioned lawyers to address these tools directly with clients because they may create confidentiality, privilege, consent, retention and accuracy risks. 3 Lawyers may need a standard client instruction for the beginning of representation, but the instruction should not be treated as a one-time formality. It should be repeated when the risk becomes more concrete. For example, a lawyer might remind a client not to use AI before the client drafts a statement, responds to a government inquiry, prepares for deposition, reviews discovery, communicates with witnesses or makes social media posts about the dispute. PRESERVE AI MATERIALS WHEN LITIGATION IS PENDING OR ANTICIPATED The third practical duty is preservation. Once litigation is pending or reasonably anticipated, lawyers should consider whether AI-related materials may be relevant electronically stored information. AI materials may include prompts, outputs, uploaded files, chat histories, AI-generated summaries, AI notetaker transcripts, exported conversations, account histories and metadata. Whether those materials are discoverable will depend on relevance, proportionality, privilege, work product, possession, custody, control and the facts of the case. But lawyers should not assume AI materials are irrelevant or immune from discovery simply because they were created in a chatbot. The discovery issues are already developing. Courts and commentators are beginning to address whether AI prompts and outputs may be protected work product when created by counsel as part of legal strategy. Other cases show that AI conversations can become evidence in a dispute. In Fortis Advisors, LLC v. Krafton, Inc., for example, the Delaware Court of Chancery described a corporate executive’s use of an AI chatbot in connection with a disputed business strategy as part of the factual narrative in a contract dispute.4 Fortis is not a privilege decision, but it is a useful warning. The court’s discussion of a business executive’s AI chatbot use shows that AI prompts and outputs may become part of the evidentiary record when they relate to disputed decisions, motives or strategy.5 Preservation advice should be tailored to the matter. A client who used AI once to ask a general question before hiring counsel may present a different issue than a client who uploaded key documents, used AI to draft a statement, summarized privileged communications or relied on AI to make business decisions at the center of the dispute. But lawyers should at least ask enough questions to decide whether preservation is necessary. In litigation matters, lawyers should consider adding AI-related materials to litigation hold notices. A simple preservation instruction might say: Do not delete any AI chats, prompts, outputs, uploaded documents, AI-generated summaries or AI meeting transcripts related to this matter. This includes materials created in ChatGPT, Claude, Gemini, Copilot, Perplexity, Zoom The rise of client AI use is not just a technology issue. It is a client communication issue.
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