(dissenting). The order of the Supreme Court, New York County (Andrew Tyler, J.), entered on February 3, 1983, should be affirmed.
Plaintiff-respondent Lawrence B. Saftler, an attorney, commenced this action seeking a declaratory judgment determining that the defendant-appellant Government Employees Insurance Company (GEICO) and Inapro, Inc., *61breached their malpractice insurance policy with plaintiff when they failed to defend him in a lawsuit instituted against him in January of 1981. Plaintiff also demanded that defendants be directed to perform their obligations, as well as $100,000 in damages. In its answer, GEICO asserted that plaintiff had been charged in Nassau County with defamation and conspiracy and that the insurance policy in question contained an express disclaimer of applicability with regard to any “dishonest, fraudulent * * * or malicious act or omission of the insured.” In addition, GEICO contended that the alleged acts did not occur within the period covered by the policy.
On August 3,1982, plaintiff moved to disqualify the law firm of Davis & Davis as GEICO’s attorneys. According to plaintiff, on August 10, 1981, he and Harold Saftler, his father and law partner, met with Andrew Davis of Davis & Davis for the purpose of discussing the insurance policy. At that time, Davis purportedly represented that he was acting as an arbitrator to resolve any dispute between plaintiff and GEICO, although plaintiff had informed Davis that it was in the latter’s interest to proceed to litigation rather than settle the case. Davis had supposedly led plaintiff to believe that his firm would not represent GEI-CO should a lawsuit arise. Davis also reportedly assured plaintiff that he would withdraw from the matter in the event of a conflict of interest. Plaintiff maintained that Davis had also advised him that their communications would be held in the strictest confidence. Since Davis and his firm were now representing GEICO in the instant action, they should be disqualified on the ground that there was a conflict of interest.
In response, Andrew Davis referred to a letter dated July 28, 1981, which GEICO sent to plaintiff informing him that: “I have engaged Andrew P. Davis, Esq. of Davis & Davis, Attorney at Law of 116 John Street, New York City, New York 10038 to look into this matter to determine the applicability of our coverage. I am sure that Mr. Davis will be in touch with you in the very near future and I ask that you cooperate fully with him in making the facts concerning this matter available to him so that a decision with respect to coverage can be made as soon as possible. Of *62course, if it is determined that the above numbered policies are applicable to this loss, then you will be provided with the full protection of the policies subject to the applicable exclusions.”
It was Davis’ position that his firm was initially consulted only for the purpose of determining the applicability of GEICO’s policy to plaintiff’s situation and that he so notified plaintiff at their meeting. Davis also stated that he assured plaintiff and the senior Saftler of his objectivity, so that plaintiff recounted the circumstances surrounding the underlying claim. Davis, however, denied that he had ever held himself out as an arbitrator. He contended that, at all times, he made it clear that he was employed solely on behalf of GEICO.
Special Term granted the motion to disqualify, holding that: “Under the circumstances disclosed, it would [be] better to resolve the issue of the alleged conflict of interest in favor of disqualification”. In my opinion, the ruling of Special Term was entirely appropriate. There is a factual dispute between plaintiff and Davis concerning the nature of their conversation. The letter dated July 28,1981 cannot be dispositive of what was said by the two men on August 10, 1981. It is even conceivable that at some point in this litigation, Davis may be called upon to provide testimony. An attorney “should avoid even the appearance of professional impropriety.” (Code of Professional Responsibility, Canon 9.) Although there may not be an actual lawyer-client relationship between two parties, there may still exist a fiduciary responsibility between the attorney and the adverse litigant such as to warrant that attorney’s disqualification. (Westinghouse Elec. Corp. v Kerr-McGee Corp., 580 F2d 1311.) Since a lawyer is obliged to avoid even the appearance of impropriety, any question should be decided in favor of disqualification. (Silver Chrysler Plymouth v Chrysler Motors Corp., 518 F2d 751). Special Term, therefore, properly concluded that under the circumstances here, the motion to disqualify should be granted.
Murphy, P. J., Sullivan and Silverman, JJ., concur with Kassal, J.; Milonas, J., dissents in an opinion.
Order, Supreme Court, New York County, entered on February 3, 1983, reversed, on the law and the facts, and *63the motion to disqualify denied. Appellant shall recover of respondent $50 costs and disbursements of this appeal.