Opinion 90-41

                                                      April 5, 1990

Digest:         In the event a former client genuinely is considering a lawsuit for malpractice against a judge, the judge must recuse himself from presiding in any action in which the firm representing the former client appears.

Rules:          22 NYCRR 100.2.

Opinion:

         A full-time judge has been informed by attorneys representing a former client of the judge, that the client is contemplating naming the judge as a defendant in a legal malpractice action. The judge inquires whether he should disqualify himself from presiding in a case in which the attorneys for his former client appear.

         Section. 100.2 of the Rules of the Chief Administrator of the Courts requires a judge to avoid “impropriety and the appearance of impropriety”. A judge's impartiality might be questioned if the judge presides over a case in which one of the attorneys at the same time is representing a former client of the judge in an action against the judge for legal malpractice. Even if no action has been commenced, there would be an appearance of impropriety if such action is being considered seriously.

         Therefore, the judge should recuse himself in any case in which the firm appears, if the judge believes that the law firm genuinely is contemplating the commencement of a malpractice lawsuit against the judge on behalf of the judge's former client.