Kathryn Rubino , Above The Law; Tech Company Launches Program To Pay Law Firms For Their Emails, Privilege Be Damned
"Let’s ask the obvious question: is this tech company asking firms to sell attorney-client privileged communications and attorney work product? Because the emails where a litigation team hashes out strategy, the Teams threads workshopping a client’s walk-away number, the project histories tracking how a matter got from intake to settlement… that is the work. The process Mode is so eager to capture is, in a law office, exactly the thing privilege exists to protect.
Mode’s answer is scrubbing. The company says it built tools that “remove sensitive information and replace names and other identifying details,” and that firms get to approve which systems and date ranges are included before anything is exported. Which, I mean… sure. But privilege doesn’t belong to the firm, it belongs to the client. Swapping a client’s name for a placeholder doesn’t make a strategy memo any less a confidential communication, and Model Rule 1.6 reaches all information relating to the representation, not just the parts with a name attached. The ABA’s Formal Opinion 512 already says lawyers generally need a client’s informed consent before feeding their information into self-learning AI tools, and that was about using AI, not selling the raw materials to train someone else’s.
And there is no expiration date on privilege! The Supreme Court made that clear in Swidler & Berlin v. United States — the Vince Foster notes case — holding that the privilege survives even the client’s death. A matter that closed in 2014 is every bit as privileged today and “historical” is not a loophole. Meanwhile, U.S. District Judge Jed Rakoff ruled earlier this year that a defendant who fed his lawyers’ advice into a consumer AI chatbot waived privilege over it, because sharing it with a third party is sharing it with a third party. Doing it for cash is not going to play better."
