Do AI notetakers put attorney-client privilege at risk?

AI notetakers now join client calls by default in Zoom, Teams and Google Meet, and many attorneys never chose to turn them on. Each one produces a recording, a transcript and a summary that live on a vendor's servers. For a managing partner, the question is simple: does that record keep its attorney-client privilege, and who controls it?

Can an AI notetaker put attorney-client privilege at risk?

An AI notetaker can put attorney-client privilege at risk, and no single rule decides the question. Published guidance and recent cases point to three factors: the vendor's terms (who can read, keep or train on the transcript), who is on the call, and the fact that a verbatim record now exists that can be sought in discovery.

Privilege protects confidential communications. A notetaker leaves the words the same and changes where they go and how long they last. A client's offhand remark that once lived only in an attorney's memory is now a searchable file held by a third party, under terms the firm may never have read.

What did the Heppner court say about AI and privilege?

In United States v. Heppner (S.D.N.Y. Feb. 17, 2026), Judge Rakoff held that documents a defendant created on his own using a public AI platform were not protected by the attorney-client privilege or the work product doctrine. The court pointed to the platform's privacy policy, which allowed the provider to retain inputs and outputs and disclose them to third parties, and found no reasonable expectation of confidentiality.

Heppner did not involve a meeting notetaker, and it did not decide how an enterprise tool under contractual confidentiality terms would be treated. The court's analysis turned on what the vendor's privacy policy allowed, so the data use and retention terms of any AI tool that touches client communications matter.

Does California law protect a transcript stored by a vendor?

California's Evidence Code addresses electronic storage directly, within limits. Evidence Code section 917(b) says a lawyer-client communication does not lose its privileged character because it is sent electronically or because people involved in delivering, facilitating or storing it may have access to the content. Section 917(a) presumes such communications were made in confidence and puts the burden on the party challenging the privilege.

Section 952 defines a confidential communication as one disclosed to no third persons other than those present to further the client's interest or those to whom disclosure is reasonably necessary to transmit the information or accomplish the purpose of the consultation. Section 912 says privilege is waived when a holder voluntarily discloses a significant part of the communication, and that a confidential disclosure reasonably necessary to accomplish the purpose of the consultation is not a waiver.

Those sections speak to people who deliver, facilitate or store a communication. They do not say how a vendor that uses the conversation for its own purposes, such as training its models, should be treated. In In re Otter.AI Privacy Litigation (N.D. Cal. Aug. 13, 2026), the court denied Otter's motion to dismiss core wiretap claims, accepting at the pleading stage the allegation that the vendor acted as a third party because it collected and used meeting content for its own purposes. That ruling addresses privacy claims at an early stage and does not decide privilege.

What do bar ethics opinions say about recording client calls?

Published bar guidance says attorneys should get client consent before recording a call with an AI tool and should know how the vendor stores and uses the data. The most detailed guidance comes from the New York City Bar. Formal Opinion 2025-6 (December 22, 2025) says an attorney should obtain client consent before recording a call with an AI tool, warn clients that much of the data sits under the AI provider's control, and consider where the data is stored, for how long and whether it is used for training. It says attorneys should not rely on AI summaries without checking their accuracy, and that a firm with a no-retention policy should disclose it and follow it strictly.

Formal Opinion 2026-2 (August 5, 2026) addresses calls with non-clients. It concludes that an attorney should obtain the consent of all other parties before recording, and that the default practice should be not to use AI tools to record, transcribe or summarize those conversations without a good reason. It flags witness recordings as potentially discoverable and calls for special care in settlement talks and mediations.

These opinions are advisory and do not bind California lawyers. They apply the same Model Rules that ABA Formal Opinion 512 applies to generative AI generally: competence, communication with clients, supervision and the duty under Model Rule 1.6(c) to make reasonable efforts to prevent unauthorized access to client information.

Does California require consent from everyone on the call?

For confidential conversations, yes: California requires the consent of all parties before a confidential call is recorded. Penal Code section 632 prohibits recording a confidential communication without the consent of all parties, and section 637.2 allows civil claims for each violation. That makes consent settings on every notetaker, including ones an attorney turned on by default, something to settle before a client call is recorded.

What happens when someone else brings the notetaker?

When a client, co-counsel or opposing counsel brings the notetaker, the firm loses control of the record. The transcript lives under that person's vendor terms, and the firm cannot review it for accuracy, set its retention or know who else can read it. NYC Formal Opinion 2026-2 names this lack of control over security features as a core risk.

Three situations deserve a firm policy:

• A client's own notetaker on a privileged call. Formal Opinion 2025-6 suggests warning the client about confidentiality and privilege risks and disclaiming responsibility for unreviewed AI summaries. Engagement letters can address this.
• Co-counsel on a joint matter. Limit recordings and summaries to the people inside the joint representation and cover them in the common interest or joint defense agreement.
• Opposing counsel in negotiation or mediation. Decide in advance whether the firm will object to recording, and ask that the bot be removed when it will not consent.

What should a law firm do this quarter?

This quarter, a law firm can inventory the notetakers already running, approve one tool on firm-controlled terms, turn off the rest, and put a written recording and retention policy in place.

• Inventory every notetaker in use. Check Microsoft 365, Zoom and Google Workspace admin settings for built-in recording and AI summary features, and review sign-ins and app consents for third-party bots attorneys added on their own. Our guide to finding AI tools attorneys signed up for covers the method.
• Approve one tool on firm-controlled terms. Read the data use, retention and training terms the way you would any AI vendor contract. Our Opinion 512 vendor contract review lists what to look for.
• Turn off what you have not approved. Disable default auto-join and auto-record, and block unapproved bots from joining firm meetings.
• Set a written recording policy. Cover when recording is allowed, how consent is obtained and announced, which matters and call types are never recorded, and who reviews the summary.
• Decide on retention. Choose whether to keep recordings and transcripts or keep only an attorney-reviewed summary, and apply it consistently. Once litigation is reasonably anticipated, preservation duties apply to records that already exist, so build notetaker data into your litigation hold process.
• Update engagement letters. Tell clients whether the firm uses AI transcription and how clients should handle their own tools on privileged calls.
• Plan for mistakes. If a privileged call ends up in an unapproved or consumer tool, follow the steps in our guide to responding when privileged material reaches a public AI tool.

What should your counsel review before you approve a notetaker?

Counsel should review vendor terms, consent, engagement letters, joint matters and retention before the firm approves a notetaker or turns on a built-in AI recording feature, and again whenever the vendor changes its terms. Bring these decisions:

• Vendor data use and confidentiality. Whether the vendor's rights to retain, review or train on content fit California Evidence Code sections 917 and 952. Bring the terms of service, privacy policy and any data processing addendum.
• Consent and notice. How the firm obtains and records all-party consent under Penal Code section 632. Bring the platform's recording notice settings and the draft recording policy.
• Engagement letter language. What to tell clients about firm transcription and their own tools, using NYC Bar Formal Opinion 2025-6 and ABA Formal Opinion 512 as references. Bring the current engagement letter template.
• Joint matters. Whether common interest or joint defense agreements cover recordings and summaries, following NYC Bar Formal Opinion 2026-2. Bring the agreements in use.
• Retention and preservation. How long recordings, transcripts and summaries are kept, and how they enter a litigation hold. Bring the retention schedule and hold procedure.

This article describes rules and published guidance. It is general information, not legal advice.

How can s90 help?

If you are not sure which notetakers are already recording client calls, or whether your setup would hold up if privilege were challenged, that is where s90 helps. Through Complete IT, s90 works with California law firms to find the AI tools already running in their tenant, lock meeting platforms to approved notetakers, and put retention and access controls behind the firm's recording policy, with proof every quarter that it is working. If you would like a second set of eyes on your current settings, we are happy to start with a short review.