Why Does My Nebraska Lawyer's Retainer Agreement Mention AI Tools Like ChatGPT?
If you've signed an engagement agreement with Zachary W. Anderson Law, you may have noticed that it addresses artificial intelligence tools like ChatGPT, Claude, Gemini, and Copilot. The exact wording in your own agreement is what governs. The practical request behind it is simple: talk with us before you put facts, documents, or our advice about your case into an AI tool, and if you already have, let us know. The point isn't to keep you away from technology or to monitor your devices.
There are three reasons. The first is confidentiality. Nebraska lawyers have professional duties to protect information about your case. Separately, Nebraska's attorney-client privilege and work-product rules can protect certain communications and litigation materials. Each of these protections has its own requirements and its own ways of being lost. An AI provider is not your lawyer. What happens to the information you enter depends on that provider's terms, your account type, and your settings.
Courts are still sorting out how these rules apply to AI. In February 2026, a federal court in New York held that a criminal defendant's own exchanges with a consumer AI tool were protected by neither the attorney-client privilege nor the work-product doctrine. That same month, a federal court in Michigan addressed a different question in a civil case and refused to order a self-represented plaintiff to produce her AI-related materials, relying in part on work-product protection. As of October 2026, we have not located a Nebraska appellate decision deciding these questions.
The second reason is accuracy. AI tools can produce confident answers that are wrong, including citations to cases that don't exist. In 2026, the Nebraska Supreme Court struck appellate briefs containing fabricated authorities. One of them was filed by a self-represented party who admitted using AI.
The third reason is coordination. Your case is easier to manage when you and your legal team are working from the same facts and the same plan.
If you've already used AI on your case, tell us promptly and keep what you created while we assess the situation. An AI answer doesn't change a deadline or a court order, so if something is coming up soon, contact your attorney right away.
What we ask, and what we don't
Your engagement agreement is the document that controls, so read the AI section in your own agreement and ask us if anything in it is unclear. In practice, here's what we ask of clients:
Talk with us before you use an AI tool on your case. That includes typing in facts about your case, uploading documents, pasting in emails or letters from our office, and asking a tool to draft something you plan to send, sign, or file.
Let us know if you already have. Telling us early gives us the most room to assess what happened.
We aren't asking you to stop using computers, smartphones, or ordinary technology. General questions that don't involve your case raise far fewer concerns, such as "What's the difference between a guardian and a conservator?" Even then, the answer may not reflect Nebraska law.
What counts as "case information"?
If you're not sure, treat it as case information. Common examples include:
Names, ages, schools, or other details about your children or the other people involved
Financial records, such as pay stubs, tax returns, account statements, business records, or property values
Medical, mental health, or school information about you, your child, or a family member in a guardianship or conservatorship
Court papers, discovery responses, guardian ad litem or custody evaluation reports, and anything covered by a protective order
Emails, letters, or advice from our office
Drafts of messages you plan to send to your co-parent, the other party, a family member, or anyone else involved in the case
Our approval isn't the only rule that applies
Checking with our office doesn't override a court order, a statute, or another disclosure restriction. Material covered by a protective order may come with its own limits. So may reports a court has restricted and some records about children or vulnerable adults. Some uses may also require another person's consent. Don't upload restricted material anywhere unless you've confirmed that the proposed use is permitted.
An AI answer also doesn't extend a deadline or excuse compliance with a court order. If a deadline or hearing may be coming up, contact your attorney promptly.
Reason 1: Your lawyer has confidentiality duties that are different from an AI provider's privacy promises
Three different protections
Nebraska law protects your information in more than one way, and each protection works differently.
Professional confidentiality. Under the Nebraska Rules of Professional Conduct, your lawyer generally may not reveal information relating to your representation without your informed consent. The exceptions are disclosures impliedly authorized to carry out the representation and disclosures another exception allows (Neb. Ct. R. of Prof. Cond. § 3-501.6). The rule's official commentary explains that this duty reaches information relating to the representation "whatever its source."
Attorney-client privilege. This evidence rule protects certain confidential communications made to obtain or provide legal services (Neb. Rev. Stat. § 27-503(1)(d), (2) (Reissue 2016)). It does not automatically cover every fact, document, or message related to your case.
Work product. Nebraska's discovery rules separately address certain materials prepared for litigation by or for a party or the party's representative (Neb. Ct. R. Disc. § 6-326(b)(3)). That protection is qualified, which means a court can sometimes order the materials produced.
What an AI provider does and doesn't owe you
An AI provider may have contractual or privacy obligations under its terms and applicable law. It does not owe you a lawyer's professional duties. What happens to the information you enter depends on:
The provider's current terms and privacy policy
Your account type
Your settings
Depending on the product, those terms may allow the provider to store your conversations, have people review them, use them to improve its products, or disclose them in some circumstances. A free account, a paid personal subscription, and a business account set up by an employer can each come with different terms. A paid personal account isn't necessarily a business account.
How privilege can be lost
Under Nebraska law, the holder of a privilege generally waives it by voluntarily disclosing, or consenting to disclosure of, "any significant part of the matter or communication." The same statute says this rule "does not apply if the disclosure is itself a privileged communication" (Neb. Rev. Stat. § 27-511 (Reissue 2016)).
Nebraska's privilege statute also recognizes that some people can take part in legal communications without destroying confidentiality. These include a lawyer's representatives, people to whom disclosure furthers the legal services, and those "reasonably necessary for the transmission of the communication" (Neb. Rev. Stat. § 27-503(1)(d) (Reissue 2016)).
So not every use of technology to send or store a legal communication waives the privilege. Still, uploading our advice to an AI service on your own may create a waiver dispute, and the outcome would depend on the circumstances. As of October 2026, we have not located a Nebraska appellate decision applying these rules to AI tools.
What courts elsewhere have said
In February 2026, a federal court in New York decided United States v. Heppner, 820 F. Supp. 3d 292 (S.D.N.Y. 2026). A criminal defendant had used the consumer version of Claude, Anthropic's AI assistant, on his own to analyze his legal situation and outline possible defenses. His lawyers had not directed him to use it. Agents later seized roughly 31 AI-generated documents.
The court held that those documents were protected by neither the attorney-client privilege nor the work-product doctrine. Its reasons included:
Claude is not a lawyer.
The platform's privacy policy at the time allowed the provider to collect user inputs and disclose them to third parties, including government authorities.
Sending the outputs to his lawyers afterward did not make them privileged.
The court also stated that even if information he entered into Claude had been privileged, sharing it with Claude and Anthropic waived that protection. The court suggested that lawyer-directed use might be treated differently. That suggestion was tentative. It is not a guarantee that AI use becomes privileged when a lawyer approves it.
In a separate civil case, Warner v. Gilbarco, Inc., 820 F. Supp. 3d 629 (E.D. Mich. 2026), a federal magistrate judge denied a request for a self-represented plaintiff's AI-related materials. The court relied on work-product protection and described AI programs as "tools, not persons." It also found problems with the request's timing, relevance, and proportionality. That decision did not establish that conversations with a chatbot are protected by the attorney-client privilege.
These decisions answered different questions on different facts. Heppner was a federal criminal case, and it does not set a rule for Nebraska civil cases. In those cases, work-product questions are analyzed under Nebraska's own discovery rules. Courts in other jurisdictions have continued to work through these issues, and none of their decisions binds a Nebraska state court.
The practical takeaway is that it's far easier to talk through AI use before it happens than to fight about it afterward. For more on this topic, see our post on whether to use AI to polish your notes before sending them to your Nebraska lawyer.
Reason 2: AI can be confidently wrong
AI tools are built to produce fluent, convincing text. They are not built to guarantee that what they produce is true, current, or accurate for Nebraska. They can:
Mix in another state's rules
Rely on outdated law
Cite cases and quotations that don't exist
Nebraska courts have already seen fabricated authorities in filings. In Prososki v. Regan, 321 Neb. 38, 32 N.W.3d 593 (2026), the Nebraska Supreme Court struck an appellate brief containing fabricated authorities, dismissed the appellant's appeal, and referred his lawyer for disciplinary investigation. The court did not determine whether AI produced the errors and said its analysis would be the same regardless of the source. It reminded lawyers to "take care to verify the truth and accuracy of their filings."
In October 2026, in Shannon v. Shannon, 322 Neb. 451 (2026), the court struck a self-represented party's brief. The brief contained fabricated authorities that resulted from the party's admitted AI use. The court then reviewed the appeal only for plain error, a narrow form of review, and affirmed. Anyone handling part of a case on their own should take note.
For clients, the risk usually looks more ordinary:
A wrong deadline
A custody standard from another state
A confident explanation of a rule that doesn't apply to your court or your case
Nebraska divorce, custody, probate, guardianship, and civil litigation matters are governed by Nebraska statutes, court rules, and local practices, and some matters involve federal law as well. Acting on a bad answer before we see it can be hard to undo. If an AI tool told you something about your case, send it to us so we can review it before you rely on it.
Reason 3: Your case works better when we're working from the same plan
Legal strategy depends on timing and consistency. Suppose you use AI to draft a reply to the other party, a statement about what happened, or a message to your co-parent, and you send it before we've seen it. That message may become part of the record.
In a Nebraska custody case, messages between parents may be requested in discovery or offered as evidence. Their wording, accuracy, and context may matter. Custody decisions, though, turn on the child's best interests and the evidence as a whole, not on any single message.
AI-generated drafts may also require additional attorney review. Whether you are charged for that work depends on your fee agreement and the work actually performed. If you share an AI-generated version of something, please send your original notes, in your own words, along with it.
Support beyond the legal work
Divorce and custody cases are stressful, and it's natural to look for somewhere to think things through. Our firm offers in-house co-parenting and divorce coaching as part of the services we offer to our clients at no additional fee. Ask us about scheduling and the scope of that support.
Already used AI on your case? Here's what to do
Tell us promptly. The sooner we know, the sooner we can assess what happened.
Preserve what you created. Keep the chats, prompts, responses, and anything you uploaded while we assess any preservation obligations. Talk with us before you delete anything or clear your history.
Tell us which tool and which account. Was it a free account, a paid personal subscription, or an account through your employer or school?
Tell us what you shared. Facts, documents, photos, or our emails and advice: be as specific as you can.
Send us what the tool produced, especially anything you relied on, signed, filed, or sent to someone else.
Tell us if someone else may have access. A shared device, a work account, or an account another person can log into may be involved. If so, let us know right away so we can discuss how to preserve the material securely and control access to it.
From there, we'll assess whether confidentiality, privilege, or work-product protection may be affected. We'll review what the tool told you and discuss whether anything changes your strategy or your discovery obligations. If a rule, court order, or other legal duty may require disclosure, we'll explain the situation as fully as the circumstances allow.
Questions to ask your lawyer about AI
Is it okay for me to use AI for this specific task?
Are there documents in my case that I shouldn't upload anywhere?
Is anything in my case restricted by a court order, a statute, or someone else's rights?
I already used an AI tool. Does that affect discovery or what we share with the other side?
How is technology used on my matter, and how is my information protected?
Frequently asked questions
Can I still use ChatGPT for general legal questions?
General questions that don't include details about your case raise far fewer confidentiality concerns. Treat the answer as unverified, though, because AI tools can be outdated, borrow another state's rules, or get Nebraska procedure wrong. An AI answer doesn't change a deadline or a court order, so run anything that matters to your case by us first.
Should I ask about AI features built into other apps?
Yes. Many email, word-processing, messaging, and video-meeting apps now include AI writing assistants, summarizers, or note-takers, and those features may send your content to an outside service. If you're not sure whether a feature raises a concern, ask us before using it on case material.
Can I use an AI note-taker during calls with my lawyer?
Please ask first. An AI note-taker may send a recording or transcript of a confidential conversation to an outside company. That raises the same questions as typing the conversation into a chatbot. If you'd like a record of a meeting, we can talk through other options.
If I already used AI, does that hurt my case?
Not necessarily. The effect depends on what you shared, which tool and account you used, and whether the information is likely to come up in your case. Telling us promptly gives us the best opportunity to assess it.
Are my conversations with my lawyer still protected if I used AI?
Using an AI tool doesn't automatically strip protection from your communications with us. The concern is narrower. It's about what you entered into the tool, and whether sharing our advice with it creates a waiver argument about that advice. That's why we ask you not to paste our emails, letters, or advice into AI tools without talking with us first.
Could the other side get my AI chats?
Possibly. A discovery request, a court order compelling production, and a ruling that something is admissible at a hearing or trial are separate steps, each with its own rules. The fact that material was created with AI doesn't, by itself, decide whether it's relevant, protected, or discoverable. Courts elsewhere have reached different results on related questions.
Does this apply to guardianship, probate, and estate-planning matters too?
Yes. County court matters such as guardianships, conservatorships, and estates often involve medical information, financial records, and private family details. Sometimes those details concern a person whose rights and privacy need careful protection. The same confidentiality and accuracy concerns apply.
Educational disclaimer
This article provides general educational information about Nebraska law and is not individualized legal advice. It reflects our review of the law as of October 2026. Laws, court rules, and court decisions can change after that date, so this article may not reflect later developments. Outcomes depend on the applicable law and the facts of each case. Reading this article or sending an initial inquiry does not, by itself, establish an attorney-client relationship with Zachary W. Anderson Law. Contact our office to discuss whether we can represent you, and do not rely on this article to calculate a deadline or to decide whether to comply with a court order.