← All guidelines·Guideline 5 of 8
Before client material goes into any tool, counsel knows where it goes, who can see it, how long it is kept and whether it is used to train the model. A paid subscription does not answer those questions by itself.
Red · Must Proposed addition. The duty exists; its application to AI tools is not yet stated anywhere in the Code.
The rules
“maintain legal professional privilege and confidentiality regarding the affairs of present or former clients or employers, according to law;”
LPC Code of Conduct, para 3.6
“scrupulously preserve the personal and confidential information of a client communicated to him or her, unless the information is not privileged and disclosure is required by law.”
LPC Code of Conduct, para 57.2
“the decision to waive professional privilege is that of the client, not of the legal practitioner.”
LPC Code of Conduct, para 57.3
What the guideline requires
An AI service is a third party. Uploading a brief to it is a disclosure to that service, on that service’s terms. Whether the disclosure is consistent with the duty depends on the service, its settings and the material. A paid plan does not settle the question; the terms that apply to the account in use do.
Privilege belongs to the client. No step that puts it at risk is taken without the client’s instructions, given through the attorney.
Data protection law, including the Protection of Personal Information Act 4 of 2013, may also apply to personal information in the papers.
Green · Method Before anything is uploaded
- Where does it go? Which company, and in which country is it stored?
- How long is it kept? Can it be deleted, and by whom?
- Is it used for training? Check the setting and the terms for the plan in use.
- Who can see it? The provider’s staff, colleagues on a shared account, connected applications.
- Are there restrictions? Has the attorney, the client or a court limited AI use on this matter? Material obtained on discovery, or subject to a confidentiality order or the implied undertaking, needs separate thought.
- What does the task need? Leave out what it does not need. Removing names alone does not make material anonymous; facts, dates and places can still identify people.
Guide 10 works through these questions on four made-up examples, and explains where a document goes when it is attached to a chat, connected as a folder or linked from a cloud drive.
No South African judgment on this point is on file.
Other jurisdictions
In England and Wales, using AI tools is outsourcing under rC86, and it is unlikely that free-of-charge, publicly available AI systems fulfil the conditions that rule imposes (Bar Standards Board, Guidance on the use of AI and other technologies, valid from 18 May 2026). In New South Wales, material subject to a suppression order, the implied undertaking, a subpoena or a statutory prohibition on publication must not be entered into a generative AI program unless the practitioner is satisfied that it will remain within a controlled environment (Practice Note SC Gen 23, para 9A). The New Zealand courts’ guidance is that, generally, a lawyer should not enter into an AI chatbot any information that is not already in the public domain (Courts of New Zealand, Guidelines for use of generative AI in courts and tribunals: lawyers, 7 December 2023). In British Columbia, where redaction is not possible, the lawyer may explore fully informed and voluntary client consent before using a tool with client information (Law Society of British Columbia, Guidance on professional responsibility and generative AI). The international comparison has the detail.
Sources on file: LPC Code of Conduct (GG 42337, 29 March 2019), paras 3.6, 57.2 and 57.3. Protection of Personal Information Act 4 of 2013. Bar Standards Board, Guidance on the use of AI and other technologies (May 2026), rC86. Supreme Court of New South Wales, Practice Note SC Gen 23, para 9A. Courts of New Zealand, Guidelines for use of generative AI in courts and tribunals: lawyers (7 December 2023). Law Society of British Columbia, Guidance on professional responsibility and generative AI (2023).
Status. A proposed guideline, put forward by Greg Fourie SC for discussion. It has not been adopted by the Legal Practice Council, the General Council of the Bar or any society of advocates. Read the Code and the judgments themselves before relying on them.