|
Jeffrey Gifford is a lawyer in San Antonio who specializes in corporate governance, securities and M&A at the law firm Dykema. In the moments before virtual meetings begin, he doubles as a bouncer.
“Before the meeting even starts,” he told DealBook, “when I see that A.I. note taker pop up, I’ll just say: ‘Hey, Mike, Jim, Barbara, I see the A.I. note taker popped up. I’m going to turn it off and kick it out of the meeting.’”
This happens more and more. “Everybody and their mother is using these things,” Gifford said. “Executives are using them, boards are using them, nonexecutive businesspeople are using them.”
Productivity powered by artificial intelligence is all the rage. Skipping meetings and sending an A.I. note taker instead has been called “the latest office power move.” Wallet-size recorders that use A.I. to log live interactions have become a product category. And at least one C.E.O. has endorsed the idea of adding an A.I. board member. (Maybe one programmed to behave like Warren Buffett?)
Note to readers: An AI note taker is a software tool that uses artificial intelligence to automatically record, transcribe, summarize, and organize meeting notes. It acts as a virtual assistant, capturing spoken words, key points, and action items in real-time, typically for video calls in Zoom, Microsoft Teams, or Google Meet. For an explainer video, please click here.
But to lawyers like Gifford, inviting an A.I. bot to meetings introduces a ticking time bomb of legal risk.
A.I.-generated transcripts, which some video call apps allow users to turn on by default, preserve all sorts of things — offhand comments, quickly corrected statements, jokes — that humans would rarely write in the meeting minutes. And they show up in meetings that would otherwise not be recorded.
In a lawsuit or an investigation, that can make every word uttered discoverable.
Even worse, say corporate lawyers: Sharing the meeting with an A.I. bot may void attorney-client privilege, making conversations that would not otherwise be subject to discovery fair game in a lawsuit.
Bot in the meeting
The New York City Bar Association issued a formal opinion on A.I. note takers last year, urging lawyers to “consider whether recording, transcribing and summarizing is tactically well advised in the particular circumstances” and to advise clients using such tools “of the disadvantages of doing so.”
One concern is accuracy. An A.I. transcript could, for example, record “does matter” as “doesn’t matter.” If that sentence comes up in court years later, the mistake may be difficult to remember.
Corporate lawyers also worry about A.I. note takers’ lack of context and discretion. For example, recording every word of a board meeting, no matter how tangential the remark, could be legally perilous.
“You want to make sure that the minutes, if they get into a courtroom, are going to not only be accurate but also are going to have the emphasis that the board would like,” said Doug Raymond, a partner at Faegre Drinker Biddle & Reath.
Worst-case scenarios are endless and easy to imagine. An executive talking through an acquisition may exaggerate, saying it would help the company “dominate” the category — a comment that could come up in an antitrust case. Or a board member could offhandedly acknowledge a risk that shareholders could later point to in a lawsuit.
“Typically, private litigation asks for all documents and communications related to a particular topic, so it’s not so much that a litigant needs to specifically ask for it,” said Christoffer Lee, a lawyer who focuses on corporate investigations and white-collar defense at the law firm Pillsbury.
Eventually, he expects to see more sophisticated litigants and government regulators ask specifically for these types of transcriptions.
“You’re just having to potentially address extraneous stuff that you otherwise wouldn’t have,” Gifford said.
Voiding privilege
Executives and corporate boards generally expect conversations with their legal team about legal matters to have attorney-client privilege. They lose that protection if they share the same information with outside parties — and it’s possible that an A.I. note taker could have the same effect.
Companies that make such tools, the argument goes, may have access to the transcripts and data related to them.
While courts have not directly addressed the issue, they’ve considered parallel questions.
In February, Judge Jed S. Rakoff of U.S. District Court for the Southern District of New York ruled that the transcripts generated with the Claude A.I. app when a defendant asked it for legal advice were not protected by attorney-client privilege. The judge wrote that the defendant could have no expectation of privacy when using a model trained on user inputs that made explicit disclaimers in its privacy policy about its ability to share with third parties (including with “governmental regulatory authorities”).
Judge Gershwin A. Drain of Federal District Court in Detroit took a different approach. He ruled, also in February, that a plaintiff who effectively represented herself in court could not be compelled to turn over her ChatGPT transcripts about the case. The judge rejected the argument that using ChatGPT was the same as disclosing to a third party.
Lee said these cases could be seen as analogous to the question of whether A.I.-generated notes from a legal meeting are protected by attorney-client privilege. “A.I. note-taking represents the next frontier,” he said.
As word of the risk spreads, Raymond said, his clients, especially public companies, have largely heeded the warnings: “Initially, I was seeing and hearing about it a lot, like: ‘Oh, this is great. Now I don’t have to worry about writing my corporate minutes.’
“But I think people have realized pretty quickly that it’s a bad idea. And so if they’ve gotten the word, they’re not doing it — or if they’re doing it, they’re not fessing up.”
| 
