The Dark Side of Digital Confidants: Why Lawyers Are Warning Against Using AI for Estate Planning

The notion that digital tools can provide an added layer of convenience and efficiency in estate planning has gained significant traction. However, a growing chorus of voices from the legal community warns against relying on these so-called “digital confidants.” A team of specialist attorneys at ArentFox Schiff cautions advisors and their clients to exercise extreme prudence when using public generative AI tools as part of the estate planning process.

At first glance, it may seem counterintuitive that a chatbot could pose significant risks. But as Sarah Kerr Severson, a partner on ArentFox Schiff’s private wealth and tax planning team, notes: “It’s fraught with risk when we recklessly invite AI into the attorney-advisor-client relationship.” The key word here is “reckless,” implying a lack of consideration for potential consequences.

A recent court ruling in New York highlights the chasm between digital convenience and legal reality. In February, a federal judge held that documents prepared using generative AI were not protected by attorney-client privilege or the work-product doctrine. This decision underscores the importance of understanding how the law applies to AI-generated documents. As Kerr Severson observes: “A client’s AI searches and documents do not constitute protected communications between attorney and client.”

The trend towards embracing AI in estate planning without fully considering its implications is puzzling. Have lawyers been so enamored with tech-driven solutions that they’ve neglected to scrutinize the fine print? Perhaps there’s an underlying assumption that AI-generated documents don’t require attorney-client privilege. This misunderstanding of how the law works is worrying, particularly when significant wealth or future estate disputes are at stake.

Courts have already confirmed that relying on AI-generated documents without proper legal safeguards can be fraught with risk. The stakes are high in situations where substantial assets are involved or a future dispute seems likely. Kerr Severson warns: “We’re seeing courts increasingly scrutinize the use of AI-generated documents.”

The warning signs are clear, but it’s unclear whether this trend will continue unabated or if lawyers and clients will reassess their reliance on digital confidants. One thing is certain: as technology advances at breakneck speed, the law has not kept pace. It’s time to take a step back and reevaluate the role of AI in estate planning.

The concept of attorney-client privilege is sacrosanct in the legal world, yet even this fundamental right can be eroded by unchecked AI-generated documents. This raises questions about the future of privileged communications between lawyers and clients. As Kerr Severson points out: “Anything typed into AI chatbots should be assumed to be searchable, traceable, and usable in a court of law.”

Kerr Severson’s observation highlights an unspoken assumption that underlies the use of AI in estate planning: that digital tools can replicate the nuanced human touch required in attorney-client relationships. However, this assumption is fundamentally flawed.

The risks of using public-facing AI tools in legal matters are very real. Kerr Severson cautions: “It’s fraught with risk when we recklessly invite AI into the attorney-advisor-client relationship.” This means that lawyers and clients must adapt to a new reality where AI-generated documents may not be protected by attorney-client privilege.

As technology continues to advance, it’s time to pause and reassess the implications for estate planning. Will AI-generated documents become the norm? Or will lawyers and clients opt for more traditional methods? One thing is certain: change is afoot in the world of estate planning.