AI & Attorney-Client Privilege After Heppner

On February 17, 2026, Judge Jed S. Rakoff of the U.S. District Court for the Southern District of New York issued a written opinion in United States v. Heppner that belongs on every immigration attorney's radar. It is the first federal decision to squarely address AI and attorney-client privilege, and it held that a defendant's exchanges with a public, consumer-grade AI chatbot were protected by neither the attorney-client privilege nor the work-product doctrine. If your clients are pasting their case facts into free AI tools, this ruling tells you exactly how exposed that information is.

What the Court Held in United States v. Heppner

The facts are simple and uncomfortably familiar. Bradley Heppner, a defendant facing federal fraud charges, took case-strategy materials he had received from his counsel and entered them into a public AI platform — on his own initiative, without his lawyer's direction. Investigators later recovered his prompts and the AI's outputs from seized devices. The government moved to use them. Heppner's team asserted privilege. The court disagreed, on three grounds:

• The AI is not a lawyer. The exchanges were not communications between a client and counsel. A public AI platform is not a licensed attorney and cannot form a privileged relationship.
• The exchange was not confidential. The platform's privacy policy permitted it to collect user inputs and outputs and disclose them to third parties — defeating any reasonable expectation of confidentiality.
• It was not for the purpose of legal advice. Heppner used the tool on his own, not at his attorney's direction.

Why Heppner Hits Immigration Practice Harder

Immigration clients hand over the most sensitive material imaginable: trauma narratives for asylum declarations, financial and medical records for hardship waivers, candid accounts of immigration history. Many face language barriers and a strong self-help instinct, and they often turn to free chatbots between consultations to "understand" their case. The exact facts that build a persuasive filing are the ones most damaging if they become discoverable. Heppner makes that risk concrete.

The Distinction That Actually Matters

The court drew a line that is easy to miss. The problem in Heppner was not "AI." It was a public, consumer tool, used by a client, on the client's own initiative. The opinion expressly noted that had counsel directed the use, the tool might have functioned as an agent of the lawyer — within the privilege, the same way a paralegal or a retained expert is. The dividing line is tool class and control: who directs the tool, and what the tool's terms permit it to do with the data.

• Consumer chatbots — trained on user inputs, terms permitting third-party disclosure, used by clients without supervision — sit outside the privilege.
• Purpose-built legal platforms — attorney-directed, contractually barred from training on your data, no third-party disclosure, encrypted in transit and at rest, with a full audit trail — preserve the conditions the privilege depends on.

What to Do Before Your Next Filing

• Tell clients, in writing, not to enter case facts into public AI tools. An AI-use clause in your retainer is now standard practice — see our breakdown of the Florida Bar's AI ethics guidance.
• Vet any AI tool you adopt: does the vendor contractually refuse to train on your data, decline to disclose it to third parties, encrypt it, and log every change? Our guide to the ethical challenges of AI adoption walks through the questions to ask.
• Keep the workflow attorney-directed, and document client consent in line with your jurisdiction's rules.

This article is not legal advice, and using the right tool does not by itself guarantee privilege. Your bar's rules and your own professional judgment still govern.

Heppner does not tell immigration attorneys to avoid AI. It says the tool class — and who controls it — determines whether your client's information stays protected. Drafty AI was built for that reality: an immigration-specific drafting platform that you direct, with no training on your data, no unauthorized retention, and encryption in transit and at rest. Start your free trial and see the difference a purpose-built tool makes.