Current Trends - Your Estate Plan and AI: Proceed With Caution - Episode 265

Hey there, Legal Tea Listeners – This is your host, Jenny Rozelle. Welcome back for another episode. Episode 265 – today is a “current trends” topic where we talk about things going on currently that are relevant and pertinent to my estate and elder law world, and/or maybe things I’ve seen on the news or stumbled across on social media. Today's episode is all about where artificial intelligence meets estate and elder law. More specifically, I want to talk about what happens when someone uploads lawyer-created documents - like a Will, Trust, Power of Attorney, or an entire estate plan - into AI tools like ChatGPT, Claude, or Gemini. Now, it seems harmless, and for a lot of people it may be convenient. But there are some important legal and ethical issues that most people don't think about. And today, we are going to walk through the potential risks, including what it could mean for attorney-client confidentiality, attorney-client privilege, and some of the ethical obligations lawyers have to protect their clients' information. These are concepts that are foundational to the attorney-client relationship, and AI has introduced some interesting new questions that are worth understanding. So, let’s dive in!

Artificial intelligence has absolutely exploded into our daily lives. Whether you are using ChatGPT, Claude, Gemini, Copilot, or whatever the next platform is by the time this episode airs (say that semi-jokingly, but semi-seriously), AI is becoming a tool people use for just about everything nowadays. We can ask it to draft emails, summarize books, plan vacations, explain medical diagnoses, create grocery lists, write resumes, and yes... even review legal documents. And that last one is what I want to talk about today. Specifically, what happens when someone uploads an estate plan into one of these AI platforms?

Maybe it is a client who wants a plain-English explanation of their trust. Maybe it is an adult child trying to understand Mom's will after she passes away. Maybe it's a successor trustee who's overwhelmed by a 70-page trust agreement and thinks, "I'll just have ChatGPT summarize this." Or maybe – and this one is going to happen more and more – someone uploads their attorney's work product and asks AI, "Did my lawyer miss anything?" Those all sound like reasonable questions.

But today I want to explain why that decision deserves a little more thought than most people realize. Now before we go any further, let's separate two very different conversations. One conversation is whether AI can help explain legal concepts. The other conversation is whether you should upload confidential legal documents into an AI platform. Those are NOT the same thing. I want to say those again – one is whether AI can help EXPLAIN legal concepts. The other is whether you should UPLOAD confidential legal documents into an AI platform.

Now, I think AI is an incredible educational tool when it is used appropriately. I probably use AI every single day in my business. It helps me brainstorm. It helps me organize ideas. It helps me craft presentation content. It helps me think through management issues. It has become an incredibly valuable productivity tool. So, do know and hear me loud and clear - this episode is not an anti-AI episode. It is actually the opposite. It is a "use AI wisely" episode. Because once you understand what happens when information leaves your computer and enters another platform, you can make much more informed decisions.

Let's start with something people often misunderstand. Attorney-client privilege and confidentiality are related, but they are not the same. Attorney-client privilege is an evidentiary rule. It is designed to protect communications between attorney and client from being forced into evidence in court. In very simple terms, it allows you to speak honestly with your attorney without worrying that those conversations will later be used against you. Confidentiality is broader.  Much broader. Lawyers have an ethical obligation to protect virtually all information relating to the representation of a client - not just privileged communications.

Now, if you must know to be able to sleep tonight, this obligation is reflected in Rule 1.6 of the Rules of Professional Conduct. It states that a lawyer shall NOT reveal information relating to the representation of a client unless the client gives informed consent or another exception applies. Notice how broad that language is. It does not just say "confidential documents." It does not just say "communications." It says information relating to the representation. That's an incredibly broad obligation.

And lawyers also have another duty that's becoming increasingly important in the AI era. Rule 1.1 requires lawyers to provide competent representation. Several years ago, there was an update made to remind lawyers that competence includes keeping up on of the benefits and risks associated with relevant technology. That one sentence has become enormously important, of course, in today’s times. It means lawyers do not get to simply say, "I do not understand AI." Technology competence is now part of legal competence. At least that’s how I read and understand it. Any lawyers are welcome to push back at me! So, I believe that lawyers have an ethical obligation to understand enough about AI to know when it is appropriate, when it is risky, and how to protect client information.

Now here's where things get interesting. Suppose I represent a client and I decide to upload that client's trust, financial information, family dynamics, tax returns, and estate planning file into an AI platform without understanding how that platform stores or uses data. Have I protected confidential information? Maybe. Maybe not. The answer depends heavily on the platform, the settings, the agreements in place, and whether the lawyer exercised reasonable care before using it. That's why we have seen bar associations around the country start issuing ethics opinions about AI over the last couple of years.

One of the most significant is American Bar Association, the ABA, Formal Opinion 512, issued in 2024. The ABA essentially said lawyers MAY use generative AI, but they have to do so competently. That means understanding the technology's capabilities, understanding its limitations, protecting confidential information, independently verifying AI-generated work, supervising nonlawyer assistance, etc. Notice what the ABA did not say. It did not ban AI. It did not tell lawyers to avoid it. It said lawyers have to use professional judgment. That's really the theme of AI ethics right now. Professional judgment.

Another ethics opinion that received a lot of attention came from the District of Columbia Bar. It similarly emphasized that lawyers need to understand how particular AI tools handle information before entering confidential client data. Some platforms retain prompts. Some use prompts to improve future models. Some offer enterprise versions with stronger contractual privacy protections. Some allow users to disable training. Some do not. Those differences matter. And if you are a client, they are worth asking your lawyer about.

Now let's flip perspectives. What if you're the client? Can you upload your own estate plan? Legally? Generally speaking, yes. It's your document. You're usually free to do with it what you'd like. But just because you can doesn't necessarily mean you should. Let's imagine a few examples. Suppose your trust contains the names of your children, grandchildren, Social Security numbers, birthdates, home addresses, financial account information, descriptions of closely held businesses, family conflict, addiction issues, special needs planning, beneficiary designations, and tax strategies. Estate planning documents often contain an extraordinary amount of deeply personal information. When people think about privacy, they often think about passwords or bank account numbers. But honestly, estate plans may contain even more sensitive information. They tell the story of your family. Who you trust. Who you do not trust. Who is getting what. Who is been disinherited. Who is serving as guardian. Who may be struggling with addiction. Who is receiving assets in trust instead of outright. Sometimes they contain medical information. Sometimes they reveal net worth. Sometimes they identify business succession plans. That's an incredible amount of information to upload into any platform without understanding how that information is handled.

Now, does that mean never use AI? Absolutely not. Instead, think about minimizing what you're sharing. Maybe instead of uploading your entire trust, you ask a general question. "What is a successor trustee?" "What does a no-contest clause generally do?" What does a Power of Attorney do?” Those educational questions do not require disclosing your family's private information. If you do want AI to help explain a provision, consider removing names, addresses, account numbers, Social Security numbers, and other identifying information first. Anonymize the document as much as reasonably possible. Think of it almost like discussing a case study instead of your actual life.

Now, there's another issue that often gets overlooked in these conversations, and it's one that even surprises some lawyers: intellectual property. Most people assume that because they paid for an estate plan, every word in that document belongs to them. And while it's absolutely their estate plan - they can keep it, share it with their financial advisor, provide it to a successor trustee, or give it to their loved ones when the time comes - the underlying document language is sometimes a different story. Many estate planning attorneys use sophisticated drafting software that's developed by national legal organizations. Those organizations invest enormous amounts of time and resources into creating, updating, and refining their legal forms. In many cases, those forms are protected by copyright and licensed to attorneys who are members or subscribers.

What that means is your estate plan may contain language that is not just unique to your situation, it may also include proprietary drafting that is licensed to your attorney for use in preparing your legal documents. Now, I'm not suggesting that a client automatically violates copyright law by uploading their own estate plan into an AI platform. The law surrounding generative AI and copyrighted material is evolving rapidly, and courts are still working through many of those questions. At the time I'm recording this episode, there simply isn't a clear legal rule that says, "Yes, this is always permissible," or "No, this is always prohibited." But it is another reason to pause before uploading an entire estate plan into an AI platform.

When you combine the privacy concerns we've talked about, the ethical obligations your attorney has to protect confidential information, and the possibility that portions of an estate plan are built on copyrighted or licensed drafting systems, you start to realize this isn't just another PDF. Estate plans are unique documents. They're deeply personal, legally significant, and often contain some of the most sensitive information you'll ever put on paper. They deserve to be treated with that level of care.

So let me leave you with a few practical takeaways. If you're a client, use AI to become more informed - not to replace legal advice. Ask educational questions. Learn the terminology. Gain confidence. But before uploading your entire estate plan into an AI platform, stop and ask yourself whether it's really necessary. In many cases, you can get the information you're looking for by asking a general question or by removing identifying information before sharing a document. And if you're working with an attorney, don't hesitate to ask whether they use AI and, if so, what safeguards they have in place to protect your confidential information. That's not an unreasonable question anymore—it's a smart one. Just as you expect your lawyer to understand the law, you should also expect them to understand the technology they're using to serve you.

Alrighty guys, it is time to wrap this episode up! Next week, we’re back to the “celebrity estate planning” type of episode – and on next week’s episode, we are going to dive into the estate of former U.S. Supreme Court Chief Justice Warren Burger's estate. What happened. What didn’t happen. And all that jazz. So, next week is on him – Warren Burger, so until then, Legal Tea Listeners, be well and talk soon!

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