AI notetakers and attorney–client privilege

What exists is professional-conduct guidance on AI tools, a small number of court decisions about AI more generally, and a set of facts about each tool that you can find out before you use it.

This guide sets those out as questions. It does not tell you whether a given tool is safe for privileged work. For the practical side of notes in a legal practice, see AI meeting notes for lawyers.

Two duties that are easy to mix up

The duty of confidentiality is a professional-conduct rule. In the ABA Model Rules it is Rule 1.6, and Rule 1.6(c) requires a lawyer to make reasonable efforts to prevent unauthorised disclosure of, or access to, information relating to the representation. It is broad: it covers all information relating to the representation, whatever its source.

Privilege is a rule of evidence. It decides whether a communication can be withheld from the other side in litigation. It is narrower, and it can be lost by disclosure to third parties in some circumstances.

An AI notetaker touches both. It can raise a confidentiality question (is using this tool a reasonable effort to protect client information?) and a privilege question (could sharing the conversation with this vendor be argued to be a disclosure that affects protection?).

What bar guidance says

Several bodies have published guidance on lawyers using generative AI. The ones below were checked on 25 September 2026; others exist, and your own jurisdiction's is the one that binds you.

• ABA Formal Opinion 512 (29 July 2024), on generative AI tools. It says lawyers must consider confidentiality under Rule 1.6 before entering client information into an AI tool, and that for tools that may learn from or disclose what is entered, the client's informed consent is needed first. It describes informed consent as the client understanding why the tool is used, the specific risks, what information will be disclosed and how it could be used against them. It also covers competence (understanding the tool's capabilities and limits), communication with clients and fees.
• New York City Bar Formal Opinion 2025-6 (22 December 2025), which deals specifically with AI tools that record, transcribe and summarise conversations with clients. It concludes that a lawyer should get the client's consent before recording, should consider whether recording and summarising is advisable in the circumstances, including for confidentiality and privilege, and should check the transcript or summary for accuracy if it may be kept and relied on. It also addresses the client doing the recording.
• The Florida Bar, Ethics Opinion 24-1 (January 2024), which says lawyers using generative AI should research the tool's policies on data retention, sharing and self-learning, and recommends getting informed consent before using a third-party AI tool that would disclose confidential information.
• The State Bar of California's practical guidance on generative AI (November 2023), which applies the existing rules, with confidentiality prominent among them, and is described by the Bar as guiding principles rather than best practices.

Links: ABA Formal Opinion 512, NYC Bar Opinion 2025-6, Florida Bar Opinion 24-1, State Bar of California guidance.

What one court has said about AI and privilege

In United States v. Heppner (S.D.N.Y., bench ruling 10 February 2026, written opinion 17 February 2026), Judge Rakoff held that documents a criminal defendant created with a consumer AI chatbot, on his own initiative and not at counsel's direction, were not protected by privilege or the work-product doctrine. Part of the reasoning was that the service's privacy policy said it could use inputs for training and disclose them to third parties, so there was no reasonable expectation of confidentiality.

That case was not about a meeting notetaker, and it was about a client using a consumer tool on his own. It shows what a court may look at: the vendor's terms on training, retention and disclosure, and whether the use was directed by counsel. It does not establish a rule for notetakers.

Questions to take to counsel

These are the facts that the guidance and the case above treat as relevant. Get the answers for any tool before you use it on privileged calls.

About the tool

1. Does anything join the call, and does the other side see it?
2. Where is the audio transcribed — on the lawyer's device, or on a vendor's servers?
3. Where is the audio kept, and for how long?
4. Does the vendor, or any AI provider it uses, train on the content or retain it after processing?
5. Which subprocessors receive the audio, transcript or notes, and under what terms?
6. Can the vendor's staff access the content, and when?
7. Can every copy be deleted, including backups?

About the use

1. Has the client given informed consent, and is it documented in the terms your jurisdiction's guidance expects?
2. Is a verbatim record of this call advisable at all, given that it may be discoverable if privilege is contested?
3. Is the recording made at counsel's direction and kept with the file?
4. Who in the firm can access it, and does the firm's retention and litigation hold policy cover it?
5. Is the transcript or AI summary checked for accuracy before anyone relies on it?
6. If the other party or opposing counsel is on the call, does recording law require their consent too? See is it legal to record a meeting?

AI summaries deserve their own care in legal work. A summary that records an admission nobody made, or leaves out a qualification, could mislead the file. Can you trust an AI meeting summary? covers how to check one.

Keeping the list of copies short

Whatever the privilege analysis, fewer copies in fewer places is easier to defend and to manage. Taking notes in confidential meetings covers the practice side: deciding retention in advance, keeping audio out of backups, and limiting vendors. Where does your meeting audio go? turns the tool questions above into a vendor checklist.

How Notey fits into this

Notey is not approved for legal work by any bar or regulator, and this is not a conclusion that it preserves privilege. These are the answers to the tool questions above, from the privacy policy:

• Nothing joins the call. Notey records the Mac's microphone and what the Mac plays.
• Audio is recorded and transcribed on the Mac, with Apple's on-device speech recognition, and stays on its disk. There is no fallback or crash report that sends it.
• Without an account, nothing leaves the Mac. Recording, transcription and search need no network.
• AI notes send transcript text only, when you ask or when a meeting ends with automatic write-ups turned on. It goes to Notey's service and on to OpenAI as a processor; it is not used for training and Notey does not retain it after the response. Whether that disclosure is acceptable for a given matter is the question for counsel; leaving AI notes off keeps the transcript on the Mac.
• Sync between your own Macs is optional and encrypted on the Mac with a key only your Macs hold. Recordings stay on the Mac that made them and are never uploaded, not even encrypted.
• Deleting a meeting removes its recording, transcript and notes, and with sync on, from every one of your Macs.
• The recording indicator is visible to you, not to the client, so consent has to be asked for out loud.

Frequently asked questions

Does using an AI notetaker waive attorney–client privilege?

There is no general rule that it does, and no general rule that it does not. Courts look at whether confidentiality was reasonably preserved, which depends on the tool, its terms and the facts. Treat it as a question for your jurisdiction's law, not a settled answer.

Do I need my client's consent to use an AI notetaker?

The ABA's Formal Opinion 512 and several state bars say informed consent may be needed before client information goes into some AI tools, and the New York City Bar's Opinion 2025-6 says a lawyer should get client consent before recording a call. Check your own jurisdiction's rules and opinions.

Is a meeting transcript discoverable?

It may be. A recording or transcript is a document, and whether it is protected depends on privilege and work-product rules, not on the tool that made it. Decide in advance whether a verbatim record of a sensitive call should exist at all.

Does on-device transcription protect privilege?

It keeps the audio off third-party servers, which removes one of the facts a waiver argument could point to. It does not decide the privilege question, and any notes or backups sent to a service still need assessing.