Comment by ozb | Hacker News Reader

Comment by ozb | Hacker News Reader

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no, Heppner's attorney-client privilege argument wasn't that the conversation was privileged inherently because it was legal consultation with Claude, but that it was privileged as personal notes made in preparation for consultation with counsel and then actually communicated to counsel, see Ford-Bey v. Professional Anesthesia Services and Greyhound Lines, Inc. v. Viad Corp.

Rakoff makes two arguments against this:

- privilege was broken because Claude/Anthropic is a third party; but I don't think he successfully distinguishes Claude from say Google Docs/Translate/Gmail in this regard (he just notes that Google Docs isn't usually claimed to confer privilege on its own; but this is not the claim being made about Claude either); and see NYSBA ethics rules 820 and 842)

- he quotes Gould v Mitsui: documents do not "acquire protection merely because they were transferred" to counsel; but that same case says they do acquire protection if communicated "for the purpose of obtaining or rendering legal advice"

I didn’t say he said it was privileged because he consulted with Claude for legal purposes so I’m not sure where that came from.

Re: Mitsui, it’s not the same case. It’s the same paragraph. And it’s pretty clear from the context that, if I send my lawyer an email requesting legal advice, the contents of that email are privileged, but if I attach pre-existing documents those documents are not, because they had no privilege to begin with. That’s not controversial. The challenge comes from the interplay between the court’s description of the privilege test, the reasonable expectations of a technology user, and the underlying, possibly obfuscated, reality of that technology’s function. Read literally, this case undermines privilege for a wide range of laypeople and attorneys doing a wide range of normal activities that have nothing to do with asking Claude for trial strategy.

You're right, I either misread your comment or got confused with a different comment or something.

But I do think the Mitsui point is relevant; in particular, the claim that the citation is supposed to back up is:

"Moreover, even assuming that Heppner intended to share these communications with his counsel and eventually did so, it is black-letter law that non-privileged communications are not somehow alchemically changed into privileged ones upon being shared with counsel."

But the distinction Mitsui is actually making is rather different: between communications "for the purpose of obtaining or rendering legal advice" and not; that's at best orthogonal to Rakoff's claim; and the other two cases I mentioned pretty explicitly make the opposite case: documents written with intent to share with counsel, and then actually shared with counsel seeking legal advice, are in fact covered under privilege. The assumption being that the documents are not "pre-existing", they're created as part of the process of communicating with counsel.

But yes, I agree that the "third-party" point separately undermines privilege in many contexts.

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