Ralph A. Barbagallo Jr. (2006)

to practice in Massachusetts in 1968. At all times material to this proceeding, Mr. Hampshire. He was admitted to practice in New Hampshire in 1988. He was admitted I. Respondent, Ralph A. Barbagallo, Jr., is an attorney licensed to practice law in New

Kruse and Respondent, Ralph A. Barbagallo, Jr., by clear and convincing evidence: [mdings of the Hearing Panel, as stipulated by Assistant Disciplinary Counsel, James L. A. The Professional Conduct Committee determined that the record supports the following I. FACTUAL FINDINGS

findings and rulings as detailed below. including the Hearing Panel Report and memoranda submitted by counsel, and makes the factual The Professional Conduct Committee thoroughlv reviewed the entire record in this matter, Wm. Dahar, Esquire, David N. Cole, Esquire, and Gretchen Rule Hamel, Esquire, were absent. Panel and as Reporter. Margaret H. Nelson, Esquire, and Toni M. Gray were recused. Eleanor Page and Benette Pizzimenti, Esquire, Vice-Chair. Attorney Pizzimenti served as Chair of the Cronheim, Esquire, Gerald A. Daley, Richard H. Darling, James R. Martin, Esquire, David N. Professional Conduct Committee Panel consisted of Thomas P. Connair, Esquire, Alan J. Russell F. Hilliard, Esquire, appeared for the Respondent, Ralph A. Barbagallo, Jr., Esquire The Kruse, Esquire, Assistant Disciplinary Counsel, appeared for the Attorney Discipline Office. referenced matter, pursuant to New Hampshire Supreme Court Rule 37A (III)(d)(2)(B). James L. On July 18, 2006, the Professional Conduct Committee heard oral argument in the above­

Barbagallo, Ralph A., Jr. advs. Diane M Lambert # 03-056

Eleanor Wm. Dahar Holly B. Fazzino, Admin. Coordinator Alan J. Cronheim * non attorney member Thomas P. Connair David N. Page' David N. Cole James R. Martin Toni M. Gray,' Vice Chair 603-224-5828 • Fax 228-9511 Gretchen Rule Hamel Benette Pizzimenti, Vice Chair Concord, New Hampshire 03301 Richard H. Darling' Margaret H. Nelson, Chair 4 Park Street, Suite 304 Gerald A. Daley'

p. 2 Company. In August, 2002, Mr. Barbagallo drafted a proposed demand letter to Arnica package relative to Jillian's claim for Ms. O'Neil's insurance carrier, Arnica Insurance and other information regarding Jillian' s injuries. He anticipated preparing a settlement 9. With Jillian's and Complainant's assistance, Mr. Barbagallo assembled medical files prepare both claims. more serious than Jillian's. Mr. Barbagallo undertook initially to investigate and 8. Jillian and Erin were both injured in the accident. Erin's injuries were significantly consent to proceed with representation under the circumstances. conflict of interest, and thus no need to seek Complainant's or Jillian's particular no allegation offault on the part of Jillian. Accordingly, Mr. Barbagallo perceived no determined there was no basis for disputing Ms. O'Neil's liability. Further, there was 7. Under the facts of the case as initially presented to Mr. Barbagallo, Mr. Barbagallo each of them in pursuit of their respective personal injury claims against Linda O'Neil. 6. Mr. Barbagallo met with both clients separately and disclosed that he was representing passenger, Erin Hardy, in connection with the same accident. 5. Later in December, 2001, Mr. Barbagallo was also retained to represent Jillian's with Mr. Barbagallo on December 18, 2001. automobile accident. Complainant and Jillian executed a contingency fee agreement Jillian in connection with a claim for injuries suffered in a December 14,2001, 4. On December 18, 2001, Complainant and Jillian retained Mr. Barbagallo to represent 3. Mr. Barbagallo tendered a sworn response dated July 8, 2003. misconduct against Mr. Barbagallo. Diane Lambert, on behalf of her daughter, Jillian, asserted allegations of professional 2. In a sworn complaint dated May 19,2003, and in subsequent letters, Complainant, Street, North Andover, Massachusetts, and at 68 Stiles Road, Salem, New Hampshire. Barbagallo operated the Law of Office of Ralph A. Barbagallo, Jr., at 231 Sutton to represent Erin Hardy. p. 3 time obtaining JilJian's or Complainant's consent to do so, Mr. Barbagallo continued Massachusetts, to represent them in connection with JilJian's claim. Without at any 17. Complainant and lillian later retained Robert H. Minasian of Lawrence, services. lillian to Complainant. He did not ask Complainant or lillian to pay any fees for his 16. On April 7, 2003, Mr. Barbagallo returned the file materials assembled on behalf of lillian's or Complainant's consent to continue representing Erin. lillian were very upset with Mr. Barbagallo's decision. Mr. Barbagallo did not seek Complainant and that he was going to continue representing Erin. Complainant and of his withdrawal and to assist them in hiring new counsel. Mr. Barbagallo told 15. On or about April 3, 2003, Mr. Barbagallo met with Complainant and lillian to advise friends. and Erin had also become more difficult in view of a falling-out between the two clients, so he decided to withdraw as counsel for lillian. Representation of both lillian 14. Mr. Barbagallo was unable to find and secure additional insurance coverage for his affidavit with its counsel's letter of April 22, 2003. additional liability insurance coverage in this matter. Arnica responded with such an 13. Mr. Barbagallo asked Arnica to supply an affidavit confirming that there was no single sum of money. Accordingly, Mr. Barbagallo perceived a conflict of interest. applicable insurance coverage, his two clients would be competing for a share of a 12. Mr. Barbagallo recognized that, with the single limit coverage, and without any other assumed that coverage limits would be as to each individual plaintiff. 11. Mr. Barbagallo had not previously encountered a"single limit" policy and had coverage, allowing gross recovery in the amount of $300,000. disclosure of insurance limits. The carrier advised Ms. O'Neil, had"single limit" 10. By letter dated lanuary 31, 2002, Arnica responded to Mr. Barbagallo's requests for until he met with them on or about April 3, 2003. p. 4 26.:Mr. Barbagallo did not notify:Mrs. Lambert and Jillian about this ongoing conflict communicate for several months with the insurance adjuster regarding their claims. 25. Mr. Barbagallo continued to represent both Jillian Lambert and Erin Hardy and to January 31, 2002, letter from Arnica Insurance. continue pursuing additional coverage on behalf of both parties after receiving the 24. Mr. Barbagallo did not seek any waiver from the client that would allow him to representation of both parties. did not promptly inform his clients about the problems that posed with his 2002, letter from Arnica regarding insurance coverage. Further, Attorney Barbagallo 23. Mr. Barbagallo did not promptly notify:Mrs. Lambert and Ji1lian about the January 31, the accident. initiation of his representation of Ms. Hardy that she had suffered significant injuries in established an attorney-client relationship with Jillian Lambert. He was aware from the 22. At the time:Mr. Barbagallo undertook representation of Erin Hardy, he had already

factual findings of the Hearing Panel by clear and convincing evidence: B. The Professional Conduct Committee determined that the record supports the following

with their settlements. 21. Erin's and JiIlian's claims were both settled with Arnica. Both clients were satisfied additional correspondence in April and May, 2004, about settlement of the claims. 20. Following communications with Arnica,:Mr. Minasian and:Mr. Barbagallo exchanged policy. Arnica in an effort to obtain additional coverage under Ms. O'Neil's homeowner's 19. In September, 2003, Mr. Barbagallo filed a Declaratory Judgment action against correspondence regarding possible settlement of Jillian's and Erin's claims. 18. In August and September, 2003, :Mr. Minasian and:Mr. Barbagallo exchanged advantages and risks involved; and he did not obtain their knowing consent. p. 5 explanation of the implications of the ongoing common representation, as well as the the aforementioned conflict in a timely fashion; he did not provide them with an 4. Mr. Barbagallo did not undertake to advise his clients or consult with his clients about withdrew from representing Jillian Lambert. 3. Mr. Barbagallo operated under this conflict of interest until April 3, 2003, when he additional coverage. adverse parties, despite his ongoing efforts to eliminate the conflict by fmding and under the circumstances as he knew them, Mr. Barbagallo was representing defendant's insurance company regarding a"single limit" insurance policy. Thereafter, 2. On or shortly after January 31, 2002, Mr. Barbagallo obtained information from the sought recovery from a single, insured defendant. in connection with their claims arising out of the same automobile accident. Both clients 1. In December 2001, Mr. Barbagallo undertook to represent Jillian Lambert and Erin Hardy

A. Barbagallo, Jr. has violated the following Rules of Professional Conduct: Professional Conduct Committee concludes that there is clear and convincing evidence that Ralph The above-listed facts, having been found by clear and convincing evidence, the II. RULINGS OF LAW

Lambert's. representation of Erin Hardy whose interests, at that time, were directly adverse to Ms. 28. He never sought a waiver from Jillian Lambert that would allow him to continue Lambert's case when he began negotiating on behalf of Erin Hardy. 27. Mr. Barbagallo was in possession of knowledge and information about Jillian with tbe ABA Center for Professional Responsibility, Standards for Imposing Lawyer Sanctions

p. 6 Supreme Court See, e.g., Feld's Case, 149 N.H. 19,28 (2002). This sanction is also in accord sanction is in accord witb tbe purposes of attorney discipline as described by tbe New Hampshire Committee concludes that th.e appropriate discipline in this matter is a Public Censure. This Having made the aforementioned findings and rulings, the Professional Conduct III. SANCTION

above rules, tbere is necessarily clear and convincing evidence ofa violation of Rule 8.4(a). Because tbere exists clear and convincing evidence that Attorney Barbagallo violated tbe

representation. Jillian Lambert or Mrs. Lambert to explain tbe consequences of such continued continue witb his representation of Erin Hardy nor did Mr. Barbagallo consult with 3. Mr. Barbagallo did not obtain Jillian Lambert or Mrs. Lambert's knowing consent to interests of Mr. Barbagallo's former client, Jillian Lambert. 2. Erin Hardy's interests in connection with this matter were materially adverse to the represented Jillian Lambert. arising out of an automobile accident witb respect to which he had also formerly I. Mr. Barbagallo represented Erin Hardy in connection witb personal injury claims

one client would not be materially limited by his responsibilities to the other. would not be adversely affected by representation of tbe otber, or tbat representation of knew tbem from January 2002 through April 2003, tbat representation of one client 5. Mr. Barbagallo could not reasonably have believed under the circumstances as he both parties despite the presence of an obvious conflict; p. 7 I. Length of time the Respondent maintained an attorney-client relationship with factors: The Professional Conduct Committee considered the following aggravating III. Taking action at some point to eliminate an obvious conflict. II. Apparent lack of harm to the clients; and 1. Length of time the Respondent has practiced competently and without incident; The Professional Conduct Committee considered the following mitigating factors: and causes injury or potential injury to a client. (4.33) lawyer's own interest, or whether the representation will adversely affect another client, in determining whether the representation of a client may be materially affected by the • Reprimand ("Public Censure") is generally appropriate when a lawyer is negligent injury or potential injury to a client. (4.32) and does not fully disclose to a client the possible effect of that conflict, and causes • Suspension is generally appropriate when a lawyer knows of a conflict of interest

Sanctions suggests, in part, the following regarding the failure to avoid conflicts of interest: As articulated in the Hearing Panel Report, the ABA Standards for Imposing Lawyer oral argument that a Public Censure be imposed. Public Censure and two favoring a suspension. The Attorney Discipline Office recommended at Hilliard. The Hearing Panel was split on the recommendation for sanction with three favoring a Disciplinary Office, and Respondent's Memorandum on Sanctions, submitted by Attorney Hearing Panel Report, the Memorandum on Sanction: Public Censure submitted by the Attorney The Professional Conduct Committee considered the analysis of the sanction in the sanctions). never formally adopted these Standards, the Court has considered them when imposing (1991). See, e.g., Shillen's Case, 149 N.H. 132, 139 (2003) (noting that, although the Court has addition, Mr. Barbagallo is required to complete twelve Continuing Legal Education Credits in p. 8 Censure to Mr. Barbagallo for violating N.H. Prof. Conduct Rilles 1.7, 1.9(a) and 8.4(a). In For the above reasons, the Professional Conduct Committee voted to issue a Public IV. CONCLUSION

involved similar rules violations for conflict of interest. reasoning in the imposition of a Public Censure in Shillen's Case, 149 N.H. 132 (2003) which ethics that must be strictly applied in any practice." The Committee also considered the Court's measure, to bad habits and a failure to learn, understand, and appreciate modem standards of disciplinary record, it may be that Mr. Barbagallo's conduct is attributable, at least in some Discipline Office that"given the number of years Mr. Barbagallo has practiced without a On balance, the Professional Conduct Committee adopts the analysis of the Attorney materially adverse to those of his fonner client, Ms. Lambert. the matter and retaining the Hardy case, he was pursuing interests of Ms. Hardy that were Barbagallo was negligent in his failure to recognize that by not extricating himself entirely from continued work on the case." With respect to the Rille 1.9 violation, the evidence shows that Mr. the carrier, and (b) to recognize the potential harm to his client(s) caused by his silence and his recognize the need to deal with the conflict promptly before obtaining further infonnation from violation,"(i)fnot knowing, he (Mr. Barbagallo) was certainly negligent in his failure (a) to Professional Conduct Committee agrees. As Attorney Kruse points out with respect to Rule 1.7 Assistant Disciplinary Counsel weighed in on the side of a Public Censure. The

VI. Failure to acknowledge the wrongful nature of his conduct. V. Appearance of self p. 9 -interest, and require, despite the extent of his experience in the practice oflaw; IV. Lack of understanding of the Rules of Professional Conduct and what they as to why he was going to withdraw from representation in her case; III. Insensitivity to the client by failing to give an adequate explanation to the client client's rights in the situation; materialized, and to fully infonn the client about potential consequences and the II. Failure to communicate with the client about the conflict when it first -

File Diane M. Lambert Russell F. Hilliard, Esquire James L. Kruse, Assistant Disciplinary Counsel Distribution:

Date: August L, 2006 b£@i~1lt V4~ p. 9 -m--n-

the right to appeal to the New Hampshire Supreme Court. See also Supreme Court Rule 37(3)(c). Pursuant to Supreme Court Rule 37(A)(III)(d)(2)(D)(4)(A), Ralph A. Barbagallo, Jr. has

costs associated with the investigation and prosecution of this matter. This requirement is in addition to the standard CLE requirements. Mr. Barbagallo is assessed all Ethics within one year from the date of this Order with at least four of these credits being"live."