Matter of Zang
741 P.2d 267 (1987) 154 Ariz. 134 (1987)
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Rule of Law:
Attorney advertisements that create a misleading impression about the nature of the lawyer's practice, such as implying a willingness and ability to take cases to trial when the firm's policy is to avoid litigation, violate ethical rules prohibiting false and misleading communications.
Facts:
- Attorneys Stephen M. Zang and C. Peter Whitmer ran print and television advertisements for their personal injury law firm, Zang & Whitmer, in 1982 and 1983.
- The advertisements used dramatic themes, with captions like 'Law is Civilized Warfare!' and featured images of courtrooms, juries, and judges.
- The ad copy emphasized trial-related activities, such as preparing cases for trial, making facts 'clear for the jury,' and achieving 'victory in the courtroom.'
- Several television advertisements culminated in a scene showing Zang arguing before a jury.
- From its formation in 1979 until the time of the ads, no attorney at Zang & Whitmer had ever tried a personal injury case to a conclusion.
- The firm had a conscious policy to settle all cases before trial and to refer any case that required litigation to outside trial counsel.
- Zang testified that he was not competent to try a personal injury case.
- In addition to the advertising, Zang misrepresented himself as a 'fellow' in two professional organizations after his memberships had been terminated for non-payment of dues.
Procedural Posture:
- The State Bar of Arizona charged attorneys C. Peter Whitmer and Stephen M. Zang with multiple ethical violations.
- The charges were heard by a Special Local Administrative Committee, which served as the trial-level fact-finding body.
- The Committee found the attorneys guilty of several violations and recommended suspension from the practice of law.
- Respondents Zang and Whitmer appealed the Committee's findings to the Disciplinary Commission of the Supreme Court of Arizona.
- The Commission conducted an independent review, affirmed five of the violations, and recommended suspensions of one year for Zang and ninety days for Whitmer.
- Zang and Whitmer then filed objections with the Supreme Court of Arizona, the highest court in the state, prompting the court's de novo review of the entire record.
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Issue:
Do attorney advertisements that heavily feature courtroom imagery and language suggesting trial expertise violate ethical rules against false and misleading advertising when the attorneys' firm has a conscious policy of avoiding trials and referring litigated cases to outside counsel?
Opinions:
Majority - Feldman, Vice Chief Justice
Yes, attorney advertisements that portray a trial-focused practice when the reality is a settlement-only practice are false and misleading. The First Amendment does not protect false or misleading commercial speech. The court found that the overall message of the advertisements, viewed from a common-sense perspective, was that Zang & Whitmer were experienced trial lawyers who tried personal injury cases. This message was demonstrably false, as the firm's policy and practice was to 'scrupulously avoid' trial work. The court rejected the argument that the ads were not misleading because the public already assumes all lawyers go to court, stating that reinforcing a misconception does not excuse a false claim. The court also upheld the other charges against Zang, finding he knowingly misrepresented his professional memberships, improperly handled a subrogation claim, wrongfully kept a mistaken payment, and charged an excessive fee. The court also rejected the attorneys' due process challenge, reaffirming precedent from Withrow v. Larkin that combining investigative and adjudicative functions in a disciplinary committee does not, by itself, violate due process without a showing of actual bias.
Analysis:
This case is a landmark decision in the regulation of attorney advertising, establishing that the 'overall impression' created by an advertisement must be truthful and cannot mislead consumers about the nature of the services offered. It clarifies that using dramatic, trial-centric imagery is impermissible for firms that are structured to avoid litigation, setting a precedent that practice reality must match advertising claims. The ruling signifies that state bars can and will enforce rules against misleading advertising to protect the public, even without evidence of actual harm to a specific client. This decision serves as a significant caution to attorneys to ensure their marketing is a transparent and accurate reflection of their skills and business model.
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