Professor Evelyn Malavé co-wrote an amicus brief with Professor Cynthia Godsoe at Brooklyn Law School (with the assistance of the law firm WilmerHale) in a NY State Court of Appeals Freedom of Information Law (FOIL) case having to do with whether the Office of Court Administration’s confidential memos advising judges on how to interpret the law should be released through FOIL, which Malavé et al. favored, or whether the memos were subject to attorney-client privilege.

In a 7:0 decision released on October 21st, the majority sided with Professor Malavé’s position. The majority allowed for the court on remittal to consider attorney-client privilege as to specific documents if it were to be raised by the defendants, but the dissent went even further to argue that any possible claim of attorney-client privilege was meritless and cited Malavé’s amicus brief.

By way of background, in 2021, one of these memos advising judges to narrowly construe a court decision that protected criminal defendants rights was leaked, which led to this FOIL case. Professor Malavé has been following the issue closely since then and has also written about it.