Before sending a privileged conversation to a transcription platform, here are five things lawyers need to know about AI transcription confidentiality.
AI Transcription Confidentiality for Lawyers
By the time you’ve closed your laptop after the first consultation with a client, the AI program has already provided you with a transcript, a summary and a list of action points. It’s truly useful, and may have saved you 20 minutes you didn’t have to spare.
Most lawyers who use transcription tools assess it the same way they would any other piece of software: by considering how accurate it is, how much it costs, and how much time it will save. Few read the data retention policy, and even fewer inquire about who else has access to the recording after it has left their laptop — or what “confidential” really means in the vendor’s terms of service.
It is not a question of whether AI transcription should be used in a law practice — for many situations, it probably should be. Rather, it is a question of whether you know what you agreed to when you turned it on.
AI Transcription Questions to Ask Before Your Next Client Call
Attorney-client privilege only functions if confidentiality is maintained; when it isn’t, the issue becomes not merely a data problem, but a privilege problem. And privilege problems are more difficult to reverse.
There are several reasons why human transcription is often more suitable for use in legal work.
- For one, sensitive client information seldom remains limited to the immediate issue; financial history, family situations, and a client’s business plans all tend to come up during a conversation.
- Phone calls, which at first appear to be merely administrative, such as a simple check on scheduling, can soon turn into a proper status update within a few sentences.
- And after the audio has left your device, the vendor determines where it is sent, who is allowed to see it, and how long it is retained.
That point is worth pondering, since it’s no longer essentially a matter of technology. Since 2012, Comment 8 to Model Rule 1.1 has made it part of a lawyer’s fundamental duty of competence to have a working understanding of the benefits and risks associated with the relevant technology. The ABA went even further in its 2024 Formal Opinion 512, which addressed generative AI and stated that attorneys must either understand the capabilities and risks of a particular tool themselves or arrange for someone else to do so, rather than accept the vendor’s word for it. A transcription app with a simple interface is not exempt from this just because it seems easy to use.
Here then are five questions that deserve answering before your next confidential call is processed by an AI tool.
1. What Happens to the Audio After the Call?
Different transcription tools handle audio in different ways. Some handle it locally and never send it anywhere, while most upload it to a server as soon as you finish recording. Then it’s beyond your control.
Before you use a recording and transcription tool for talking to a client, it’s worthwhile to find out whether the recording is actually stored somewhere or merely transcribed and thrown away. It also helps to know where the servers are located and whether your audio is crossing any borders that you did not expect.
The first thing you should do is find out where your client’s conversation sits at this moment.
2. Who Else Has Access to Your Transcripts?
A transcript rarely remains within the company that is listed on the app; instead, it goes through employees, contractors, and a small number of third-party subprocessors that most users never hear about. Each one is a door, and every door has to be locked.
3. What Is the Vendor’s Data Retention Policy?
Even if a transcription platform has good security measures in place, it can still keep every transcript you’ve ever sent it indefinitely, since the settings never included the option to delete.
Before you choose a workflow, find out what the default retention period is, whether you can delete a transcript yourself, if “deleted” really means that the transcript is permanently gone or merely hidden from your view, and whether backups are also deleted or instead quietly remain in another location.
You wouldn’t want to find this out in real time if a client calls tomorrow and asks you to get rid of all traces of their consultation.
4. Is Your Client Data Being Used After It Has Been Included in Your Transcript?
Many AI tools use customer data, in some form, to help improve their models. Many companies clearly state this in their terms of service. It doesn’t by itself constitute a serious warning; it is a quite ordinary way in which products become better over time.
The real issue is whether or not you knew this before you uploaded the privileged call and whether or not the plan you’ve chosen actually allows you to make a decision; generally speaking, the enterprise and consumer versions deal with this in different ways, and the terms of service usually explain it more clearly than any sales discussion ever will.
5. Does This Workflow In Fact Protect Client Confidentiality?
The first four questions combine to form a single practical test. Before you design a client workflow around a transcription service, make sure that there is a signed confidentiality or data-processing agreement, not merely a public privacy policy. Inquire about the actual security documentation available, including, for example, SOC 2 reports or summaries of penetration tests, not just marketing statements.
Find out how the vendor deals with a request for data deletion and what occurs to the stored transcripts when your relationship with them comes to an end.
It isn’t necessary to use the same transcription tool for notetaking, or a standard intake call or a family law consultation. Rather than apply a single workflow to all situations, consider the differences on a case-by-case basis.
A Simple Rule of Thumb
When you’re evaluating a transcription platform, resist the pull to start with features. Start with these questions instead, and let the answers tell you whether the tool fits your needs.
The most appropriate platform for having privileged conversations does not have to be the one with the greatest number of features; it should be the one that allows you to state exactly where your client’s words went, who had the possibility of reading them, and who could have read them.
5 Questions to Ask a Transcription Company
1. Where is my audio and transcript data stored, and for how long?
2. Could you provide me with a list of your subprocessors?
3. What access controls are in place for employees and contractors who might view this data?
4. Is my data encrypted when it is being transmitted and when it is stored?
5. Is my data, by default or only with my consent, used to train or to improve your models?
With AI Transcription, Efficiency Doesn’t Trump Due Diligence
There’s no doubt that AI transcription tools are becoming better and, in many cases, save a great deal of time when it comes to legal work.
It is worth questioning, however, whether efficiency is, in effect, taking the place of due diligence. Before you hand over a privileged conversation to any platform, you should find out how the data is handled, who has access to it, and for how long it remains. For highly sensitive issues, some still opt for human transcription because it keeps the chain of custody short and easy to explain to a client who asks.
The only way to do one’s job well is to know the answers to these questions.
More Tips For Confidently Using AI Apps
- AI Note-Takers for Lawyers: The Recording Risk You Need to Fully Understand
- Beyond the Hype: The Legal AI Tools Law Firms Are Really Using Today
- A Bit Terrified of AI? Safe, Simple and Productive AI Projects for Small Firm Lawyers
- Organizing Legal Work with Copilot Notebooks
- Form Builders: Create Online Client Intake Forms for Your Law Firm
- Talk It Out: The Best Dictation Tools for Lawyers
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