Akerman Construction Practice Partner Daniel Miktus and Construction Practice Co-Chair Stacy Bercun Bohm contributed "How Will D.C. and Florida Handle Litigation Privileges in the AI Era?" to Corporate Counsel, cautioning that the apparent safe harbor for AI-assisted legal work that has applied to pro se parties may not extend equally to clients with legal representation.
Daniel and Stacy note that nearly all of the rulings cited in support of the work product safe harbor involved self-represented individuals rather than parties with legal counsel. Tate Group Automotive, the only decision involving a represented party, was inconclusive and a mixed ruling.
The authors then turn to Washington, D.C., and Florida, whose courts have not yet addressed litigation privileges/protections when public AI tools are used. The authors explain that in both jurisdictions, attorney-client privilege is likely waived when information is shared with a public AI platform.
Daniel and Stacy close with practical guidance, recommending that clients avoid public AI tools for legal matters and use only counsel-approved platforms with contractual protections against data retention, training, and disclosure.